Filby v Teg Live Pty Ltd

[2023] NSWCA 320

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Filby v TEG Live Pty Ltd [2023] NSWCA 320

Hearing dates:

25 October 2023

Date of orders:

19 December 2023

Decision date:

19 December 2023

Before:

White JA [1];
Stern JA [2];
Simpson AJA [146].

Decision:

(1)   The appeal is dismissed.

(2)   The appellant pays the respondent’s costs of the appeal.

Catchwords:

EQUITY – breach of confidence – the respondent was the promoter of the boyband One Direction’s 2013 Australian concert tour – the appellant attended a meeting with representatives of the respondent on 26 February 2013 to pitch Cashtime concept – prior to pitching Cashtime concept there was a brief discussion about One Direction’s 2013 Australian concert tour – in early June 2013 the respondent announced an additional, free One Direction concert to be attended by Coles customers who purchased eligible products and were successful in an online draw as part of an arrangement between the respondent and Coles for Coles to provide sponsorship for the One Direction 2013 Australian concert tour – appellant claimed that in devising the additional, free One Direction concert, the respondent used confidential information he had supplied during the 26 February 2013 meeting – appellant alleged respondent breached equitable obligation of confidence – claim dismissed by primary judge – whether the primary judge erred in finding the information conveyed by the appellant was inherently unspecific – whether the primary judge erred in finding the information conveyed by the appellant was a very general and inchoate idea – whether the primary judge erred in finding that the information was not received by the respondent in circumstances importing an obligation of confidence – whether the primary judge erred in finding that there was no misuse of the information in question

EVIDENCE – appellate review of witness evidence – where findings as to credibility and reliability of accounts given by various witnesses played a significant role in some of the primary judge’s key findings rejecting the claim for breach of confidence – where primary judge enjoyed very real advantages over an appellate court by reason of having seen the witnesses – to the extent the appellant seeks to challenge findings of fact influenced by the primary judge’s findings as to credibility and reliability he must establish findings were glaringly improbable or contrary to compelling inferences – whether primary judge’s findings were glaringly improbable or contrary to compelling inferences

APPEALS – procedure – appellant’s claim would not exceed approximately $33,000 – where leave is required to appeal against a final judgment involving a claim or matter in issue of less than $100,000 – appellant sought leave to appeal out of time in his written submissions – appellant’s appeal raises points of principle of some importance in which the errors that he relies upon go beyond what is merely arguable – leave to appeal granted

Legislation Cited:

Supreme Court Act (NSW), s 101(2)(r)

Cases Cited:

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833

Cabal v United Mexican States (2001) 108 FCR 311; [2001] FCA 427

Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587

Corrs Pavey Whiting & Byrne v Collector of Customers (Vic) (1987) 14 FCR 434; [1987] FCA 266

Darvall McCutcheon v HK Frost Holdings Pty Ltd (in liq) (2002) VR 570; [2002] VSCA 85

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Fraser v Thames Television Ltd [1984] QB 44

Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Seager v Copydex [1967] 1 WLR 923

Secton Pty Ltd v Delawood Pty Ltd (1991) 21 IPR 136

Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1991) 28 FCR 291; [1991] FCA 154

Talbot v General Television Corporation Pty Ltd [1980] VR 224

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Watson v Foxman (1995) 49 NSWLR 315

Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277

Category:

Principal judgment

Parties:

Mark Filby (Appellant)
TEG Live Pty Ltd (Respondent

Representation:

Counsel:
M White SC and C Hart (Appellant)
C Gleeson SC and E Hall (Respondent)

Solicitors:
Keleher Lawyers (Appellant)
Corrs Chambers Westgarth (Respondent)

File Number(s):

2023/124961

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Supreme Court New South Wales

Jurisdiction:

Equity

Citation:

[2023] NSWSC 327

Date of Decision:

03 April 2023

Before:

Slattery J

File Number(s):

2019/61650

HEADNOTE

In April 2012, it was announced that the Irish/English boyband One Direction (“1D”) would be undertaking an Australian concert tour (“2013 1D Tour”). The 2013 1D Tour was promoted by the respondent, TEG Live Pty Ltd (“TEG”), previously Nine Live Pty Ltd (“Nine Live”) a subsidiary of Nine Entertainment Co Pty Ltd (“Nine Group”). The 2013 1D Tour sold out predictably quickly following its announcement in April 2012. By May 2012, and before sponsorship arrangements for the tour had been finalised, tickets for all 25 performances were sold out.

On 26 February 2013, the appellant, Mark Filby, attended a meeting with Geoffrey Jones of Nine Live, Kelvin Kirk of Nine Rewards, Marius Els and Morris Maroon (both affiliates of Mr Filby). The purpose of this meeting was for Mr Filby to pitch a project known as “Cashtime”, with the aim of engaging Nine Live as a media partner in respect of this project. Prior to Mr Filby pitching Cashtime, there was a brief discussion about the 2013 1D Tour. Mr Jones left the meeting after this brief introductory discussion and did not stay for the Cashtime pitch.

In early June 2013, Nine Live announced an additional, free 1D concert in Sydney (“the free 1D concert”), to be attended by approximately 11,000 Coles customers who purchased eligible products and were successful in an online draw. This was part of an arrangement between Nine and Coles for Coles to provide sponsorship for the 2013 1D Tour (“Coles 1D promotion”).

Mr Filby claims that in devising the arrangement for the free 1D concert, as part of the Coles 1D promotion, Nine Live used confidential information that he had supplied during the introductory discussion at the 26 February 2013 meeting before Mr Jones left the meeting. Mr Filby alleged that this use of information by Nine Live breached an equitable obligation of confidence owed to him as regards the concept of the free 1D concert. On 25 February 2019, Mr Filby commenced proceedings against Nine Live seeking declaratory and other relief. On 3 April 2023 the primary judge dismissed Mr Filby’s claim.

As to what was said at the 26 February 2013 meeting, the primary judge found (at [110]-[113]) that Mr Jones had raised the subject of the 2013 1D Tour and the fact that it was sold out but that Nine Live was still looking to leverage sponsorship opportunities and that Mr Filby was likely to have mentioned the idea of an extra concert and that in-store purchasers of qualifying merchandise could go into a draw for tickets to that concert. The primary judge characterised this as a quick and casual discussion.

As to breach of confidence, the primary judge concluded (at [193]-[198]) that the information conveyed by Mr Filby at the 26 February 2013 meeting was “inherently unspecific”, was a “very general and inchoate idea”, was not received by Nine Live in circumstances importing an obligation of confidence and that there was no misuse of the information in question. Mr Filby appealed against these conclusions.

By way of notice of contention, Nine Live contended that even if the primary judge erred in some of the respects alleged by Mr Filby, his Honour’s findings that the information did not have the necessary quality of confidence and that there was, in any event, no misuse of confidential information, should be upheld.

Mr Filby also required leave to appeal, having regard to the value of his claim, which is less than $100,000: Supreme Court Act 1970 (NSW) s 101(2)(r). Mr Filby sought leave to appeal out of time, in his written submissions.

The principal issues in the appeal were:

1. Whether the primary judge’s findings as to the exchange between Mr Filby and Mr Jones at the 26 February 2013 meeting were erroneous.

2. Whether the information conveyed by Mr Filby to Mr Jones had the necessary quality of confidence.

3. Whether the information conveyed by Mr Filby to Mr Jones was received by Nine Live in circumstances importing an obligation of confidence.

4. Whether there was any misuse of confidential information.

The Court (Stern JA, White JA and Simpson AJA agreeing) held, granting leave to appeal but dismissing the appeal:

As to Mr Filby’s application for leave to appeal

1. Mr Filby’s appeal raises points of principle of some importance in which the errors that he relies upon go beyond what is merely arguable. Leave to appeal should be granted.

   Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[37], considered.

As to issue (i) (per Stern JA , White JA and Simpson AJA agreeing)

1. The primary judge’s findings as to the credibility and reliability of the evidence of Mr Filby and Mr Jones, and indeed of all witnesses to the meeting on 26 February 2013, were likely influenced by his Honour’s impression of them in the witness box. In these circumstances, his Honour’s findings as to the exchange between Mr Filby and Mr Jones at the 26 February 2013 meeting should not be interfered with on appeal unless shown to be “glaringly improbable” or “contrary to compelling inferences”. They have not been shown to be erroneous in that sense: [103].

   Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied.

2. In any event, having carefully reviewed the evidence, the inferences drawn by the primary judge as to the content and character of the discussion on 26 February 2013 were correct. These findings are soundly reasoned and supported by the evidence and the objective probabilities: [104]-[111].

As to issue (ii) (per Stern JA, White JA and Simpson AJA agreeing)

1. It is implicit in the primary judge’s finding (at [195]-[196]) that the very general and inchoate idea, which his Honour found had been communicated to Mr Jones by Mr Filby, did not have the necessary quality of confidence. Though the information conveyed by Mr Filby was not so lacking in specificity that it could not be confidential information, the information was insufficiently unique to have that character: [118]-[120].

   Talbot v General Television Corporation Pty Ltd [1980] VR 224; Secton Pty Ltd v Delawood Pty Ltd (1991) 21 IPR 136; Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587, considered.

2. What is apparent from the evidence is that the concept of in-store purchases of qualifying merchandise entitling a customer to eligibility for a draw involving a ticket to a large event or concert was not in any sense unique as at 26 February 2013. Nor was it unique for an event such as a concert or music festival to be staged for a promotional purpose, or for people to qualify themselves for free tickets to an event by making qualifying purchases: [122].

As to issue (iii) (per Stern JA, White JA and Simpson AJA agreeing)

1. The evidence before the Court supports the correctness of the primary judge’s conclusion that the information communicated to Mr Jones by Mr Filby on 26 February 2013 was not received in circumstances importing an obligation of confidentiality: [124]-[132].

   Smith Kline French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1991) FCR 291; [1991] FCA 154, considered; Seager v Copydex [1967] 1 WLR 923, followed.

As to issue (iv) (per Stern JA, White JA and Simpson AJA agreeing)

1. Given the conclusions reached as to whether the information communicated by Mr Filby to Mr Jones had the necessary quality of confidence or was received in circumstances importing an obligation of confidence, the question of whether there was any misuse of confidential information does not strictly arise. However, it was proposed to address the issue relatively briefly: [133].

   Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26; Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49, applied.

2. The primary judge did not err in finding that there was no misuse by Nine Live of the information conveyed by Mr Filby to Mr Jones. For there to be a breach of confidence there must be some abuse or unconscientious use of the information. Misuse could, further, arise if there is some unfair advantage taken of confidential information. Here, there was nothing unconscientious in Nine Live using the information conveyed by Mr Filby: [134].

   Smith Kline French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1991) FCR 291; [1991] FCA 154, applied; Seager v Copydex [1967] 1 WLR 923, considered.

   1. WHITE JA: I agree with Stern JA.

   2. STERN JA: This matter arises out of the sponsorship and promotional arrangements for the Australian concert tour of the Irish/English boy band One Direction (“1D”) in October 2013 (“2013 1D Tour”). That concert tour, which largely sold out predictably quickly following its announcement in April 2012, was promoted by the respondent, TEG Live Pty Ltd (“TEG”), previously Nine Live Pty Ltd (“Nine Live”) a subsidiary of Nine Entertainment Co Pty Ltd (“Nine Group”) and the promoting arm of Nine Events (another subsidiary of Nine Group). In early June 2013, Nine Live announced an additional, free 1D concert in Sydney (“the free 1D concert”), to be attended by approximately 11,000 Coles customers who purchased eligible products and were successful in an online draw. This was part of an arrangement between Nine and Coles for Coles to provide sponsorship for the 2013 1D Tour (“Coles 1D promotion”). That sponsorship arrangement included a number of elements over and above the free 1D concert. The appellant, Mark Filby, claims that in devising the arrangement for the free 1D concert, as part of the Coles 1D promotion, Nine Live used confidential information that he supplied at a meeting on 26 February 2013. He alleges that this use of information by Nine Live breached an equitable obligation of confidence owed to him as regards the concept of the free 1D concert.

   3. On 25 February 2019 Mr Filby commenced proceedings against Nine Live seeking declaratory and other relief. After a trial over six days in September 2022, on 3 April 2023 the primary judge dismissed Mr Filby’s claim. By amended notice of appeal filed on 10 August 2023, Mr Filby appeals against those orders. The grounds of appeal allege error as regards the primary judge’s findings as to the specificity of the information conveyed by Mr Filby, whether confidential information was misused by Nine Live and whether the primary judge’s partially adverse finding as to Mr Filby’s credit was erroneous. Mr Filby also challenges a number of the primary judge’s factual findings.

   4. By notice of contention filed on 13 October 2023, Nine Live contends that even if the primary judge erred in some of the respects alleged, his Honour’s findings that the information did not have the necessary quality of confidence and that there was, in any event, no misuse of confidential information should be upheld.

   5. For the reasons set out below, Mr Filby’s appeal should be dismissed.

Leave to appeal

6. Nine Live contends that Mr Filby requires leave to appeal, having regard to the value of Mr Filby’s claim. That contention should be accepted. As provided by s 101(2)(r) of the Supreme Court Act 1970 (NSW), leave is required in order to appeal against a final judgment involving a claim, or matter in issue, of less than $100,000. Senior Counsel for Mr Filby accepted during his oral reply submissions that despite some earlier, more ambitious submissions, what Mr Filby would have been paid had to be determined by reference to the $2.5 million amount that Coles agreed to pay by way of sponsorship for the free 1D concert. That figure should then be reduced to take account of what Nine Live actually received after deducting the sum paid to 1D itself. A percentage figure must then be applied to that sum, reflecting the evidence of Mr Geoffrey Jones, then Managing Director, Events of Nine Live, as to what would have been paid “assuming that Nine Live had contracted with a third party to develop and procure sponsorship”. The result of that calculation is that, even if successful, Mr Filby’s claim would not exceed approximately $33,000.

7. In his written submissions Mr Filby sought leave to appeal. Leave to make that application out of time and leave to appeal should be granted. Mr Filby’s appeal raises points of principle of some importance in circumstances in which the errors that he relies upon go beyond what is merely arguable: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[37] (Basten JA, Tobias AJA agreeing).

Fact finding on this appeal

8. The primary judge heard evidence from four witnesses of fact (including Mr Filby) in support of Mr Filby’s claim and three witnesses of fact called on behalf of Nine Live. His Honour also heard evidence from Mr Walker, CEO and founder of the Retail Doctor Group which specialises in “retail management” and “brand strategy”, who gave evidence in support of Mr Filby’s claim. Five of the witnesses of fact were present at the meeting on 26 February 2013 at which Mr Filby claims that he provided information to Nine Live in circumstances in which an obligation of confidence arose. The affidavit evidence of those witnesses is dated from between 2020 and 2022, some seven to nine years after the events they described. Their oral evidence was given some nine years after those events. The process of fact finding was complicated, moreover, by the fact that there are relatively few contemporaneous documents that bear in any way upon the key questions of fact arising. This was explained during oral submissions on the basis that there had been numerous changes to the corporate arrangements of Nine Group, which had resulted in many emails and other documents ceasing to be available.

9. As would be expected in those circumstances, questions as to the credibility and reliability of their evidence loomed large. Indeed, findings as to the credibility and reliability of the accounts given by the various witnesses, and most particularly by Mr Filby, played a significant role in some of the primary judge’s key findings rejecting the claim for breach of confidence. This is apparent from the primary judge’s findings as regards the evidence of Mr Filby. The primary judge found (at [12]) that Mr Filby “could become carried away by his own ideas in ways that did not always anchor him firmly to well accepted facts.” His Honour found (at [13]) that he had a “reasonably accurate recollection of some of his interactions with the Nine Live executives in February 2013” and that the occasion of the 26 February 2013 meeting “certainly made an impression upon him, embedding some memories of the event.” However, his Honour found (at [14]) that Mr Filby had had “a long period to dwell upon his perspective of a single meeting” resulting in him “convincing himself in places of the accuracy of his account of events.” Information that Mr Filby had about the Coles 1D promotion was likely to have “informed his recollection of the meeting.” The primary judge found (at [15]) that Mr Filby’s account of the meeting was “accurate in some limited but important respects” but that his Honour did not “fully accept his detailed evidence about what was said.” His evidence was “coloured by a strong sense of betrayal”. At [16], the primary judge said:

“But Mr Filby’s style of jumping around from subject to subject in speech was not just a feature of his evidence. He participated in meetings the same way, entertaining possibilities rather than teasing out the ordered and concrete application of his ideas... This is a most important feature of Mr Filby’s personality which was in play at the February 2013 meeting and explains some of the dynamic on the day and in the months thereafter.”

10. Significantly, the primary judge found (at [111]) that Mr Filby had “reconstructed to a degree and added into the conversation [on 26 February 2013] elements of the Coles 1D promotion which he learned of in 2013.” Whilst some aspects of the matters identified by the primary judge are apparent to us from the transcript, the primary judge’s findings indicate that in reaching his conclusions as to the credibility and reliability of Mr Filby’s account, his Honour was likely influenced by his observations of Mr Filby in the witness box.

11. As regards Mr Jones, the primary judge was also clearly influenced by impressions formed of him in the witness box. The primary judge made findings (at [96]) as to what Mr Jones would have said based upon “[t]he Mr Jones that the Court saw in the witness box” and found also that “the tenor of the language attributed to Mr Jones does not fit well.” The primary judge found (at [28]) that Mr Jones “gave an honest account of his recollection and its limits.” It is likely that the primary judge’s impression of Mr Jones in the witness box played a hand in the primary judge’s findings relating to Mr Jones more generally.

12. As to other attendees present at the meeting on 26 February 2013, the primary judge found (at [22]) that Kelvin Kirk was a credible witness who “presented to the Court as professional, thoughtful, and clear in giving evidence.” His Honour found (at [25]) that in evidence, and no doubt in business, Marius Els was “astute, diplomatic and measured” and that his evidence was “mostly accepted”. His Honour found (at [17]) that Morris Maroon was a witness of credit but that “the Court does not fully accept his account.”

13. The primary judge (at [20]) found that the account of Peter Wiltshire, who was involved in developing the Coles 1D promotion, was “generally reliable” albeit that he was reluctant to accord any credit to Mr Filby for new ideas. His Honour found that Mr Wiltshire had a reasonable recollection of events relating to the subject of Mr Filby’s claim.

14. In some instances the primary judge expressly identified that his Honour’s impressions of the various witnesses as they gave evidence formed part of his assessment of their evidence. Further, in a case such as this where the Court was required to choose between very different accounts of a key meeting which occurred many years prior to trial and where there are few documents which elucidate events, it is inherently likely that in forming judgments as to what occurred the primary judge placed some reliance upon his impressions of the various witnesses when giving evidence. As explained by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (“Fox v Percy”) at [41]:

“No judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another.” (References omitted).

15. Thus, whilst this is an appeal by way of rehearing under s 75A(5) of the Supreme Court Act, and recognising that the supposed categories of fact finding are “so porous that no definitive test is possible”: Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [15] (Basten JA), this is a case in which the primary judge enjoyed very real advantages over an appellate court by reason of having seen the witnesses. In these circumstances, to the extent that Mr Filby seeks to challenge findings of fact which were influenced by the primary judge’s findings as to the credibility or reliability of a witness, he must establish that the primary judge’s findings were “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy at [29] and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 (“Lee v Lee”) at [55] (Bell, Gageler, Nettle and Edelman JJ).

16. That stricture does not, however, apply to all of the primary judge’s findings. As held in Lee v Lee at [55] (Bell, Gageler, Nettle and Edelman JJ):

“Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”.” (Footnotes omitted).

17. In some important respects the inferences drawn by the primary judge relied upon the inherent probabilities and other objectively ascertainable facts. To that extent, this Court is in as good a position as the primary judge to draw inferences: Warren v Coombes (1979) 142 CLR 531 at 538, 551; [1979] HCA 9 (Gibbs ACJ, Jacobs and Murphy JJ); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [23] citing the Full Federal Court in Cabal v United Mexican States (2001) 108 FCR 311; [2001] FCA 427 at [223]-[224] (Hill, Weinberg, Dowsett JJ). Further, given the very significant passage of time since the key events of relevance to Mr Filby’s claim, all of which occurred in 2012 and 2013, the analysis of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319, has particular resonance:

“… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

Factual Background

18. Having regard to the numerous factual challenges before the Court, it is necessary to set out the factual background by reference to the underlying evidence and documents and not merely by reference to the primary judge’s findings.

The context for the 26 February 2013 meeting

Mr Jones’ and Mr Filby’s experience

19. Mr Jones had been involved in entertainment and media since 1998 and from 2011 was responsible for managing and building the group of live entertainment companies within Nine Group. Mr Jones explained in his affidavit that as at 2013, Nine Group had full access to large sales and marketing resources, marketing and market research analysis services, and relationships with both advertisers and advertising clients whom they would approach where appropriate to raise sponsorship opportunities. The primary judge found (at [27]) that Mr Jones was a “perceptive and confident business figure” and a “sophisticated business operator”.

20. The primary judge found (at [36]) that Mr Filby had “an extensive career in retail marketing with an emphasis on live entertainment in a retail context.” For the purposes of this appeal, it is unnecessary to go beyond that finding.

Cashtime

21. Mr Filby explained in his affidavit that between 2011 and 2012 he developed the synopsis for a new project known as “Cashtime”, which he had previously called “Superdraw, Cashtime.” Mr Filby, with the assistance of several colleagues and friends, raised funds for Cashtime, registered a company “Cashtime Pty Ltd” and set up commercial premises where he “operated Cashtime” until around April 2013. He created the necessary computer system through which to operate Cashtime, engaged lawyers to “sort out” contracts with the small investors who had provided funds to Cashtime, paid someone to create a website to “run the Cashtime process” and engaged an advertising agency to create presentations which he used in “sales kits”. Mr Filby explained in his affidavit that by 2012, he had obtained major investors, engaged an advertising agency, an accounting firm, a legal firm and other suppliers necessary to prepare the launch of Cashtime.

Arranging a meeting with Nine Live

22. Mr Filby formed the view that to get Cashtime “off the ground”, he needed a media partner. To this end, in February 2012 he contacted Win TV, at the time an affiliate of Channel Nine. Win TV representatives said that they would put Mr Filby in contact with Ian Sheppard, Sales Director at Channel Nine. Mr Filby met with Mr Sheppard in October 2012 and gave evidence that Mr Sheppard promised him a meeting with Mr Wiltshire. He emailed and called Mr Sheppard a number of times following that meeting but his correspondence was not returned. Mr Filby also contacted two of Mr Wiltshire’s assistants at this time to try to set up a meeting but did not receive a response. Mr Filby then contacted Mr Els of Artists Network. Mr Els’ evidence is that he had two meetings with Mr Filby in early 2013. At one such meeting, Mr Filby presented the Cashtime proposal to Mr Els, who told him that he should get in touch with Mr Jones, as “[w]hat you do fits in perfectly for Geoff Jones”. Mr Filby believed that “Nine Live would be interested in the Cashtime proposal.” Mr Els explained in his witness statement that he and Mr Filby discussed ways to get Cashtime “into the broader market” and in this regard discussed approaching Channels Seven, Nine or Ten.

23. Mr Els knew of Mr Jones and had had some email communication with him in 2012 about the unrelated matter of a Julio Iglesias concert. In an email dated 5 February 2013 from Mr Els to Mr Jones, Mr Els described “an opportunity for Channel 9 that will nett [sic] a minimum of $12 million per annum in advertising revenue”. Mr Els continued that Price Waterhouse Coopers (“PwC”) would manage “the Cashtime project” and that they were “looking for a media partner that will generate immediate income for all involved.” Mr Els requested a 30 minute meeting with Mr Jones so that he could present “the concept” with its creator, Mr Filby. Mr Jones forwarded this email and its attachment to Mr Kirk, the general manager of Channel Nine Rewards, to review. The attachment was a proposal document entitled “Cashtime and Channel 9”. The proposal document described a concept that included:

1. “Daily CASHTIME Supa Draws every 15 minutes – public prize presentations by Live Shopping centre and Retailer TV means winners are seen and applauded so the promotion is believed and loved!”;

2. “290 Live Draws a week, entry free when you purchase a members product.”;

3. “Attempt to win $1 million in a vault – (OPEN VAULT TO WIN)”;

4. “Cashtime App for Free Customer Entry.”;

5. “CASHTIME SUPA DRAW PROMOTION BUILDS BETTER RELATIONSHIPS WITH ALL BRANDS PRODUCTS, SERVICES AND ALL RETAILERS by offering them a substantial extra income opportunity”;

6. “THIS LOYALTY AND BUSINESS IS THE BIGGEST WINDFALL IN RETAIL AND MEDIA HISTORY (LOCALLY AND INTERNATIONALLY) … an exclusive we are offering to Channel 9 first”; and

7. “101 Systems that GIVE an Unprecedented Historic NEW revenue stream”.

24. Mr Kirk gave evidence that he had not heard of Mr Els or Cashtime prior to receiving this email. He reviewed the document and told Mr Jones in an email dated 6 February 2013 that he did not understand the “consumer value prop and how it will work” but said that he was happy to meet Mr Filby on Mr Jones’ behalf to “get a better understanding” about Cashtime. Mr Els reported to Mr Filby on 11 February 2013 that he had left a message on Mr Jones’ mobile to call him and had also spoken to Mr Jones’ secretary. In an email sent later that day, Mr Els told Mr Filby that he would let him know when he heard from Mr Jones and advised Mr Filby not to put too much pressure on himself “creating more frustration.” By way of reply email on 12 February 2013, Mr Filby asked Mr Els to call him to “discuss tactics.”

25. On 11 February 2013 Mr Els sent a second email to Mr Jones in which he reiterated his request for a 30 minute meeting to “present the Cashtime prop” to him. Mr Jones responded on 15 February 2013 indicating that his secretary would set up a 30 minute meeting for Mr Kirk and himself to “see Cashtime.” Mr Els responded that he and Mr Filby were looking forward to presenting “this exciting Cashtime prop.” On 18 February 2013, Mr Els emailed Mr Filby, indicating that Mr Jones would see them on 26 February 2013. Mr Els identified that it was important to “get the right people there” and suggested a man called Mr Mauage “would be important to give us some cred.” On 25 February 2013, Mr Els sent an email to Mr Filby attaching information about Mr Jones’ professional background and advising Mr Filby that he “may want to do a bit of research on Geoff”. Mr Filby’s evidence was that he was “just dying to meet Geoff Jones.”

26. The primary judge found (at [58]) that Mr Jones’ professional background suggested that he would scrutinise the Cashtime pitch carefully.

The Coles 1D promotion

27. In 2012 Nine Group had a range of media assets, including its primary media asset, Channel Nine, and its subsidiaries Ticketek Pty Ltd (“Ticketek”) and Nine Live. It also owned Australia’s largest indoor entertainment area, Qudos Bank Arena, previously known as Sydney Superdome Pty Ltd or “Allphones Arena”. This enabled Nine Group to offer what were described as “integrated advertising solutions” that targeted audiences across different platforms. Such solutions had been utilised in a sponsorship arrangement that Nine Group entered into with Coles in 2010 for the 2012 London Olympics. The success of this meant that maintaining its relationship with Coles became a priority for Nine Group. Mr Wiltshire, who at the relevant time was the Chief Revenue Officer and Director of Sales and Marketing at Nine Group, and was responsible for marketing and revenue across Nine Group’s media assets, explained in his affidavit that Tony Phillips, then Chief Marketing Officer of Coles, had said to him, prior to the London Olympics, that he wanted a “solution for 12 months’ time” to try to match the spike in sales consequent upon the London Olympics.

28. In 2012, Nine Live was the promoter of 1D’s first Australian tour (“2012 1D Tour”). This first tour was very successful and as a result, Nine Live arranged the 2013 1D Tour. The 2013 1D Tour was publicly announced in mid-April 2012. Tickets were released for general sale on 28 April 2012 and by the end of that day 100,000 concert tickets were sold. Tickets for an additional ten concerts were then gradually made available, and over the following month all tickets available to the general public for the 25 performances sold out: at [100]. As found by the primary judge (at [103]) Nine Live was required to pay some upfront costs associated with the 2013 1D Tour and gave a guarantee that it would pay a minimum sum for the concerts. That minimum guarantee was not increased when a further 11 concerts were added to the tour. The primary judge also found (at [103]) that that level of guarantee which Nine Live agreed to pay:

“… did not cause [Mr Jones] any concern in February 2013 because Nine Live was only required to pay 10 per cent of that fee upfront by no later than 31 December 2012. A further 40 per cent of that fee was payable no later than 29 July 2013 with the balance to be paid after the conclusion of the band’s final performance in Australia.”

29. The primary judge also found (at [104]) that Mr Jones had never underwritten a tour that Nine Live was promoting.

30. As was explained by Mr Jones, it was typically preferable for sponsorship to be lined up prior to a tour, but that was not possible given the speed with which the decision was made to proceed with the 2013 1D Tour. Mr Jones’ evidence was that in around April 2012, he spoke with Mr Wiltshire, who he knew had large advertising clients such as Coles, Woolworths, the big banks and Harvey Norman, and said words to the effect of:

“Pete, you may have heard that Nine Live has just signed a deal to promote a tour by a band called One Direction in 2013. I don’t know if you’ve heard of them – they’re a UK boy band and a bit of a phenomenon. The tour will be a sell-out, and advertisers and sponsors will be dying to get on board.”

31. Consistent with that, Mr Wiltshire’s evidence was that around the time that the 2013 1D Tour was announced he became aware that 1D was “sponsorable property” and he believed that Mr Jones, or someone who worked for Mr Jones, told him that. Mr Jones accepted that it was possible that he had said that to Mr Wiltshire. By way of context, Mr Jones’ evidence was that a large percentage of artists do not want sponsorship as “it is a very difficult field to play in.”

32. Mr Wiltshire’s evidence was that sometime later, in around January or February 2013:

“… I had the idea of taking the potential sponsorship of the One Direction tour to Coles. The idea, at this time, was in its infancy and was not as developed as the promotion eventually became …”.

33. When asked about this, Mr Wiltshire agreed that he “claimed the idea of having Coles consider sponsoring One Direction.” He said in his affidavit that the way he imagined it at that time was that some type of “retail activation” would be involved, meaning “an incentive for kids and parents to come into Coles [and] make purchases, which would be tied back to the tour” but he did not know what the “incentive” would be at that stage. He explained that “One Direction was appealing to kids” and that “One Direction would be the leverage point for … kids to nag mum or dad to buy a certain product through the store.”

34. In his oral evidence, Mr Wiltshire said that the idea that Coles would sponsor the 2013 1D Tour was “triggered purely by the fact that we had a relationship with Coles … an ongoing relationship with Coles” and by the request from Mr Phillips referred to above. He explained that prior to around January to February 2013, he did not think that 1D would be able to be sponsored by a brand like Coles and he had a concern that Coles may not have been comfortable associating their brand with a band like 1D. He said that the idea a brand like Coles or any other company could sponsor a tour of 1D’s “scale and popularity” was “new information that [he] was given.” This reference to “Coles or any other company” seems to be addressing the more general information, that 1D was “sponsorable”, that he was given by Mr Jones in around April 2012. That is so notwithstanding that, when giving this evidence, Mr Wiltshire was responding to a question from the primary judge asking Mr Wiltshire to explain why it was that he only got the idea about Coles sponsoring the 2013 1D Tour in January to February 2013. It is thus not clear if, in this oral evidence, Mr Wiltshire was referring to his conversation with Mr Jones in 2012 or was saying that he got new information, in January to February 2013, which suggested to him the idea of Coles sponsoring the 2013 1D Tour. That ambiguity was not interrogated during cross-examination.

35. Mr Jones was asked in cross-examination to explain the time lag between the announcement of the 2013 1D Tour, in April 2012, and the idea of Coles sponsoring that tour which emerged in early 2013. He explained, in answer, that at the time it was difficult to “get a share of voice” from the management and agent of 1D as they were fielding offers from “100 countries around the world to tour.” He said that was “probably the primary reason [for] the lag”.

36. Mr Wiltshire’s evidence was that he called Mr Phillips in January or February 2013, on or around the day after he had the idea of Coles sponsoring the 2013 1D Tour. Adding to the ambiguity arising from Mr Wiltshire’s evidence, in another answer he gave in cross-examination, Mr Wiltshire said that it was Mr Jones making him aware that 1D was a “sponsorable tour” that stimulated the conversation that he had with Mr Phillips in January or February 2013. This might suggest that the conversation that he had with Mr Jones was in fact in early 2013 not in April 2012 as he had earlier suggested or that there was a second conversation with Mr Jones, but it could also be consistent with there being a gap of some months between the conversation with Mr Jones and that with Mr Phillips. Again, this was not further interrogated in oral evidence.

33. During Mr Wiltshire’s call to Mr Phillips he suggested the high-level idea of Coles sponsoring the 2013 1D Tour. He explained in his oral evidence that at the time of the phone call he was “literally seeking interest” and that it was “what I would almost call, like, a test case phone call” to see whether they would want to associate Coles as a brand with a thing called One Direction, which was different for Coles.” Mr Wiltshire described this as merely “the seed of an idea” that he was “testing” with Mr Phillips. He said that Mr Phillips was willing to move forward with the idea. He could not recall “exactly how much we’d fleshed out at that time.” The primary judge (at [144]) accepted that this was something of “a lightbulb moment where [Mr Wiltshire] thought of something close to the final Coles 1D promotion.” However, his Honour found (at [145]) that Mr Wiltshire’s evidence was “open to the conclusion” that this idea was prompted by discussions with others and it is unclear whether at that point in time the idea included that there would be an additional, free concert attended by winners of a draw entered by purchasing select products, a key concept discussed further below.

34. As to the timing of this call, Mr Wiltshire’s evidence was that it was necessarily “no later than February 2013” given that it would have taken some two to three months of work to get from that discussion to the stage of signing a letter of intention, and the letter of intention between Coles and Nine Live regarding the sponsorship of the 2013 1D Tour was signed on 18 April 2013. He said that it was “not physically possible” for all the necessary steps to have taken place in the period of about seven weeks between 26 February 2013 and 18 April 2013 being the date the letter of intention was signed. He denied that he had had a conversation with Mr Jones, or someone who worked for him, after 26 February 2013 in relation to Coles’ sponsorship of the 2013 1D Tour and that it was only after that that he spoke with Mr Phillips.

35. Mr Wiltshire’s evidence was that he had never heard of Mr Filby before this case was presented to him. He denied that Mr Jones told him “about an idea that came from Mr Filby”. Mr Jones said that he had no recollection of having any conversations with Mr Wiltshire about Coles. He also disagreed with the suggestion, put to him in cross-examination, that he had told one of his employees about the idea Mr Filby had given him. He said in response that he had “no recollection of any idea Mr Filby was … alleged to have given [him].”

36. In his affidavit, Mr Wiltshire said that they began setting up a team at Nine Group to work with Coles, and that this happened almost immediately after his conversation with Mr Phillips. That team included:

1. Nine Group, which took “more of a governing, supervisory role for the overall management of the promotion” and “took care of the media side of the deal”;

2. Nine Live, which had the responsibility of dealing with 1D on behalf of Coles and of negotiating the finer details of the commercial contract;

3. BigRed, Coles’ creative agency, which was responsible for the commercial creativity of the project and was broadly responsible for the public perception and brand association between Coles, 1D and the various products forming part of the ticket giveaway; and

4. MBThree, Coles’ media agency, which was responsible for the financial and commercial success of the 1D promotion for Coles and had the primary role of “looking at the costs of purchasing media and advertising spots”.

41. Mr Wiltshire explained that it was Coles that approached their suppliers and made arrangements with them to fund or collaborate in the promotion. He described the mechanics behind the promotion as it developed, and that a “key attribute of the promotion” became the “idea that Coles would fund a further concert, which was to be offered exclusively to Coles customers”, being the free 1D concert. Mr Wiltshire, in his oral evidence, said that the “unique thing” about the 1D campaign was that:

“… they [Coles] agreed to run another concert that was available to Coles customers through whatever promotion that Coles decided to do.”

42. He later added that:

“The concert was staged with free tickets for Coles customers. We were not a party to Coles talking to their suppliers about how their suppliers would participate with Coles and their specific product lines, and the way that they would be sold within Coles for Coles’ customers to win tickets. That was a conversation that Coles would have with their suppliers. It is not something that we would be party to.”

43. In response to a question whether it was unique for purchasers of particular product lines to go into a lottery for a ticket Mr Wiltshire said:

“It was not unique for any retailer including Coles to approach suppliers to participate in a promotion of sorts. The unique thing that we activated with [Mr Phillips] in that conversation was the idea of a free concert”.

44. Again, there is an ambiguity about Mr Wiltshire’s evidence in that it is unclear whether the “conversation” referred to is his phone call with Mr Phillips in January or February 2013 or the negotiations he had with Mr Phillips between that phone call and the signing of the letter of intention on 18 April 2013 more generally. This ambiguity was not interrogated during cross-examination.

45. As to who came up with the idea of the free 1D concert, the following exchange occurred during Mr Wiltshire’s cross-examination:

“Q:   You’d agree with me, wouldn’t you, that even if it was the case that you came up with the idea of Coles sponsoring the tour, you did not come up with the idea of funding a free concert through the retailers within Coles, did you?

A:   No, not me personally. Whether Coles came up with that idea internally and went to their suppliers for funding, that’s not to my knowledge, but it wouldn’t be unusual.”

46. The primary judge found (at [147]) that Mr Wiltshire’s account left “elusive the circumstances surrounding the moment he locked in the final elements of the Coles 1D promotion that most closely resemble the 1D extra concert idea.”

47. Mr Jones’ account was that he recalled that:

“… the idea for the exclusive show came about because, we realised that in order for the promotion to be successful for Coles, Coles had to have something to give away. … It was therefore clear to me that in order [sic] make tickets to One Direction available for Coles customers, it would be necessary to put on a new, exclusive, concert.”

48. The primary judge (at [155]) accepted that Mr Jones took all these various steps.

49. A Channel Nine document entitled “Coles 1D Roll Out” dated 23 March 2013 is in evidence. Mr Jones described this as a Channel Nine “pitch.” It includes, under the heading “The Exclusive Gig”, details of an exclusive 1D concert to be held in Sydney and that Coles “will have the right to hold a consumer promotion for all winners to attend” that concert. Under the heading “The Promotion Mechanic” it is stated that customers who make eligible purchases would receive a “Coles Deal Docket Receipt” with a unique code which could be entered into an online hub to enter the prize draw. There was to be a weekly draw to “encourage repeat visitation and purchase”.

50. A draft letter of intention between Coles and Nine Live was circulated on 8 April 2013. A further PowerPoint presentation, which appears to have been presented and circulated on or around 10 April 2013, containing the logos of each of 1D, Nine Group, M9 and Coles, included reference to:

“A SPECIAL, EXCLUSIVE, ONE-OFF COLES GIG for 11,000 people in Sydney on 6 October (1 pm matinee performance) PLUS tickets to show around the country and ‘meet and greet’.”

51. The mechanics set out in that PowerPoint presentation were:

“-   Marketing campaign promoted via CH9/Mi9 assets

-    Sales promotion giving Coles customers the change to win tickets when they buy your brand at Coles

-   For every purchase of your brand, customers get a chance to win tickets (if a customer buys two of your brand in one shop, they get two chances)

-    The chances are represented as a Docket Deal printed at the bottom of the till receipt

-   Customers enter the docket deal on a website to enter their interest in the Exclusive Gig

-   There are a very small number of tickets available at each of the band’s regional shows which customers can choose to enter instead

-   A grand draw is made to reveal the winners”.

52. A letter of intention dated 18 April 2013 and signed on behalf of Coles on 19 April 2013 (though not signed by Nine Live) is in evidence. That sets out the proposed commercial terms regarding the 2013 1D Tour sponsorship and corresponding media arrangements. The sponsorship sum was $2.5 million. Provision was also made for further investment in the Today Show, “Online”, and a general programming spot schedule. There were also a number of “Proposed Sponsorship Entitlements as per the Nine Live proposal” and “Additional wish list elements that are yet to be confirmed”. As the primary judge found (at [134]) Coles structured the promotion so that the promotion was only aligned to one of the suppliers’ brands, though the primary judge identified that such “marketing mechanics” did not need to be discussed in his Honour’s reasons. The free 1D concert took place on 6 October 2013, at 1.00pm.

53. In his supplementary expert report, Mr Walker set out his opinion that the Coles 1D promotion seemed to him to have been put in place “late” and that by early 2012 Nine Live would have had available to it all the information that it needed to pitch the Coles 1D promotion to Coles. In this supplementary expert report Mr Walker also set out his opinion that the Coles 1D promotion contained “identical characteristics” to what Mr Filby said, in his affidavit, that he had communicated to Nine Live.

What was or was not unique about the Coles 1D promotion?

54. A number of witnesses addressed the question whether, and in what respects, the Coles 1D promotion was unique. Mr Wiltshire’s evidence was that it was not unusual for Coles to seek supplier funding and supplier partnership in a promotion, as that was what they had done for the London Olympics. However, as set out above, he considered the idea of a free concert to be unique. He explained:

“… the uniqueness of a new concert for Coles’ customers based on the fact that One Direction was sold out, and the demand around those tickets would be something or enough to drive people through the doors of Coles.”

55. For Mr Jones there was nothing unique about a multi-product point of sale promotion and he had been involved in many such promotions. Mr Jones was also familiar with the concept of suppliers paying for in-store promotions and could recall being involved in a promotion during his employment with Fosters whereby customers purchased a particular product to become eligible for the chance to win a prize of some sort. He said that there were lots of sponsorships where a sponsor receives a number of tickets to “every show that they can and dispense these tickets how they want to through promotion to their customer base” and, like Mr Wiltshire, Mr Jones said that the single concert idea was developed because the tickets to the 2013 1D Tour were sold out. He didn’t know if the combination of a multi-product promotion and free tickets to a concert was unique.

56. Mr Kirk gave evidence about a promotion he was involved in as marketing manager at IBM in the year 2000. The crux of the promotion was that purchasers of select IBM products sold at Harvey Norman would be entered into a draw to win tickets to the Sydney 2000 Olympics and various merchandise. He gave evidence that IBM and indeed other suppliers involved had to “spend money to get into the campaign”. Mr Kirk explained that IBM paid money for sponsorship rights and then “looked to get a return on the sponsorship rights through leveraging the sponsorship.”

57. In response to questions from the primary judge, Mr Wiltshire agreed that as the 2013 1D Tour was sold out, if Coles was going to offer some prize or opportunity to obtain tickets to the 2013 1D Tour, it was inevitable that there had to be a new concert. The primary judge put to Mr Wiltshire that the idea that he took to Mr Phillips “inevitably involved the idea of there being a new concert” and Mr Wiltshire responded “[a]s I recall.” He said that:

“… the idea of Coles sponsoring One Direction without any kind of additional reason would be a relatively vanilla idea.”

58. Mr Jones’ evidence was that if “someone want [sic] to access their customer base and give them ... as what Coles ultimately did with what we proposed to them, or what was developed to them, having tickets to a show is … an ideal mechanic.” Mr Jones continued that for a brand such as 1D, which he described in his oral evidence as a “hot artist”, having a “brand association” with the band was something that sponsors would aspire to.

59. Mr Walker prepared two reports and also gave oral evidence. Mr Walker’s background was in retail management and brand strategy. He explained that retail operations were at the “heart” of his work and that he had some experience, when at Westfield, of being involved in “name sponsorship” of music tours which would also have involved trying to influence retailers to take part with posters and point of sale ticketing. He did not himself have experience promoting concert tours that involved enticing customers to purchase products. Mr Walker prepared his expert reports by conducting desktop research, reading into the history of supermarkets domestically and internationally and looking to find all of the elements of the promotion that Mr Filby set out at paragraph [58] of his affidavit to see if it was assimilated prior to 2013.

60. The question he addressed in his first report was “[w]hether the manner, nature and extent of the One Direction competition, the subject of these proceedings, was unique at the time it was launched in June 2013”. His evidence was that, whilst supplier funding and promotion in television and store promotion were not unique as at June 2013, from his research it was unique at that time to:

1. Have a multi-product campaign initiated and conducted by different suppliers across categories promoting a unified campaign;

2. Tie in products through internal shop point of sale and “shelf talkers” rather than through packaging changes;

3. Create a special concert funded by competitive suppliers and Coles;

4. Offset the cost of the concert with the supermarket promotion; and

5. Utilise the promoter’s own venues.

61. Mr Walker also set out in his report that whilst there had been numerous event ticket giveaway promotions by retailers, he had not found any instances of concert tickets being given away.

62. In oral evidence Mr Walker said that the combination of all of the elements that Mr Filby described at paragraph [58] of his affidavit were not in the public domain in the sense that that combination would not have been available through searches of websites or other publicly available information at the relevant time. However, Mr Walker said that multi-product campaigns, involving multiple suppliers to one retailer do occur and that supermarkets were “a good example of that.” Mr Walker cited, as an example of this, Coles’ “Down Down” campaign in which multiple suppliers to Coles had reduced their prices and which was linked to an exclusive Status Quo album that could only be purchased from Coles. Mr Walker also gave evidence of Coles sponsoring Status Quo’s tour of Australia in 2013 and appeared to accept that a major retailer sponsoring a concert tour was not a unique proposition. The following interchange occurred during his cross-examination:

“Q:    … you’d accept that what would ordinarily happen is that part of the promotion [of a concert tour] would be that there would be some competition to win tickets to concerts on the tour?

A:    I think - I think it’s a reasonable assumption, but it would’ve materialised in what I was researching at the time, and I couldn’t find evidence of that.”

63. Mr Walker was then taken to evidence of a number of international sponsorship arrangements and he accepted that these demonstrated similarities to the Coles 1D promotion. One promotion that Mr Walker was taken to in
    cross-examination involved the distribution of 80,000 tickets to an evening concert (being put on as part of a festival in the United States) to retail stores and which were then given to customers. Mr Walker accepted that this was an example of the distribution of tickets to an exclusive concert tied up with a retail promotion. He accepted that two of the examples of retail promotion of large concerts overseas and of retailers giving customers the opportunity to win tickets to large music events put to him in cross-examination had elements that appeared “fairly consistent” with the way the Coles 1D promotion was put together, albeit that none of these involved a barcode which was recorded at the point of sale as was a feature of the Coles 1D promotion. Mr Walker said that he did not think that it was a “distinctly new idea for suppliers and/or retailers to be involved with a concert of some sort.” He also agreed that in February 2013 there was a “one off” musical event sponsored by Optus enabling interested people to win tickets to that event by undertaking voluntary work.

The meeting on 26 February 2013

64. The meeting which gives rise to Mr Filby’s claim took place on 26 February 2013. It was attended by, at least, Mr Jones, Mr Kirk, Mr Filby, Mr Els and Mr Maroon, the principal of a Sydney law firm who provided support to Mr Filby at business pitch meetings and had known him since 2005 (there was some suggestion that a Mr Dipen Patel and a representative of PwC also attended the meeting). Mr Jones said in his oral evidence that he did not know who Mr Filby was, what Cashtime was, or who was coming to the meeting on 26 February 2013. Rather he understood that the meeting was something to do with Nine Rewards, and that there was something there for his Nine Rewards business. It is common ground that Mr Jones only attended the meeting for a short period of time at its commencement and that the Cashtime concept was presented to Mr Kirk after Mr Jones left the meeting.

65. In his affidavit Mr Filby gave a very fulsome account of what he says occurred during the period when Mr Jones was present at the meeting:

“[58]   I recall advising Mr Jones in detail about how he could underwrite the cost of the One Direction Tour. Before we commenced the presentation on the Cashtime Proposal, Mr Jones said to me words to the following effect:

“Mark, what I am interested in is, with your experience, how you would go about underwriting a national tour of a band like One Direction.

We’ve got One Direction coming out this year and it is costing the Board $9M - $12M and we sometimes can’t access that money for up to and over 12 months. It’s a lot for the Board to risk. Now if you can explain to me how you would [underwrite] it, I am more than interested.”

In response, I responded to Geoff Jones to the following effect:

“I’ve organised a lot of events for a lot of different clients. Each time is different. My role has always been to create the event to suit that client.

I’ve worked for Westfield, the RAS [the Royal Agricultural Society], Harbourside – Darling Harbour, NSW Government Carnivale, Liverpool City Council, Hurstville City Council, the Marc Hunter Benefit, Lee Kernighan’s Pass the Hat Around Australia, Wollongong Storm Aid, Wollongong Council, Parramatta Council, WIN TV.

I know what you can do – firstly, you would get a retail partner like Coles, Woolworths, AMP or Westfield.

For example Coles, has 33,000 products on their shelves. Coles and Woolies both have buyers talking to their suppliers every day. The way to work it is that each product line pays to participate in the promotion. Coles can get them to do this. The difference is that it would be a multi-product promotion rather than being a single brand promotion so it’s a minimal cost to each product. It spreads the cost out.

126. It is entirely plausible that Mr Filby would have communicated the information without any caveats, as he may have thought that to raise the question of confidentiality could cause Mr Jones to see Mr Filby in a less positive light. The primary judge found as much (at [75]-[76]) where his Honour indicated that for Mr Filby to prove his credentials he had to appear to be “generous with his ideas; not hedging them about with limitations on their use.” There is no challenge to that finding. That is consistent with the inference that I have drawn as set out above, namely that it was objectively clear that Mr Jones was looking for ideas that he might use and that Mr Filby’s information was freely provided in that context. Senior Counsel for Mr Filby submitted that Mr Filby’s subjective purpose in providing the information does not determine the question of whether the information conveyed had the necessary quality of confidence and did not mean that it was not a “valuable piece of information”. So much may be accepted. However, the context was such that objectively the information was not received in circumstances importing an obligation of confidence.

127. I would thus reject ground 2 of the amended notice of appeal.

Was there any misuse of confidential information?

133. Given the conclusions that I have reached as to whether the information communicated by Mr Filby to Mr Jones had the necessary quality of confidence or was received by Nine Live in circumstances importing an obligation of confidence, this issue does not strictly arise. Nonetheless, I propose to address it relatively briefly: Kuruv State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12]; Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8].

134. The primary judge concluded (at [198]) that there was no misuse of the information in question as Mr Jones and Mr Wiltshire were not alerted expressly or by the circumstances to any obligation of confidentiality concerning the information. It necessarily follows from the analysis set out above in relation to whether the information was received in circumstances importing an obligation of confidence that I also find that the primary judge did not err in finding that there was no misuse by Nine Live of the information conveyed by Mr Filby to Mr Jones. As set out by the Full Court of the Federal Court in Smith Kline (at 304), for there to be a breach of confidence there must be some abuse or unconscientious use of the information. Misuse could, further, arise if there is some unfair advantage taken of confidential information: Seager v Copydex at 931. Here, there was nothing unconscientious in Nine Live using the information conveyed by Mr Filby in the circumstances as I have found them.

135. Mr Filby also contends that the primary judge erred (at [198]) in placing reliance, on the issue of misuse, upon whether or not Mr Jones or Mr Wiltshire were alerted expressly or by the circumstances to the confidential nature of the information communicated by Mr Filby. Whilst there is force in Mr Filby’s contention that such matters go more to the question whether the information was received in circumstances importing an obligation of confidence, those matters could also be relevant to the question of whether the information was used by Nine Live without consent, which in turn would go to whether some unconscientious use has been made, or unfair advantage taken, of the information. Further, had the information been confidential and communicated in circumstances importing an obligation of confidence, such subjective factors would not necessarily have prevented the information being misused. However, given that I have found that there was no obligation of confidence for the reasons set out above, there could not have been any misuse.

136. Mr Filby contends that the primary judge erred in finding (at [197]) that Mr Jones would have observed confidentiality if he had been alerted to it by Mr Filby. In my judgment the primary judge was here inferring that this would have been the case, based upon his assessment of Mr Jones and the evidence he gave. This finding is one which was highly likely to have been informed by the impression the primary judge formed of Mr Jones. It is not a finding which is glaringly improbable or contrary to compelling inferences. I would thus reject Mr Filby’s contention that it was erroneous.

137. As to whether there was use of the information communicated by Mr Filby, like the primary judge, I would conclude that that information probably played a role in the development of the free 1D concert concept which, as Mr Wiltshire agreed, was the “unique” part of the Coles promotion of the 2013 1D Tour. It is highly unlikely, in my judgment, that the persons developing sponsorship arrangements for the 2013 1D Tour came up with that idea independently at around the same time as Mr Filby communicated that idea to Mr Jones. That is particularly so given that the evidence supports a conclusion that there were communications between Mr Jones, or those who worked for him, and Mr Wiltshire, about this promotion, and Mr Wiltshire was unable to remember what it was that prompted the idea for the additional, free 1D concert and, as set out above, there was some ambiguity in his evidence as to when he had a conversation with Mr Jones about this. To the extent that Nine Live’s submissions suggested that the test for whether information has been “used” is something other than the balance of probabilities, that contention should be rejected. Whilst in Seager v Copydex at 931 Lord Denning MR found that, in that case, the inference of unconscious use was “too strong to permit of any other explanation”, his Lordship should not be read as suggesting that that threshold had to be met in order to establish use of confidential information. Rather, his Lordship was expressing his conclusion in forceful terms. Neither Salmon LJ nor Winn LJ in Seager v Copydex expressed their conclusion in those terms.

138. In reaching this conclusion, I make no finding as to whether Mr Wiltshire’s call to Mr Phillips asking whether Coles would be interested in sponsoring the 2013 1D Tour occurred before or after 26 February 2013. The evidence of Mr Wiltshire as to the time required between that initial call and the signing of the letter of intention on 18 April 2013 would suggest that the call to Mr Phillips must have been before 26 February 2013. However, that evidence was very much a reconstruction as Mr Wiltshire did not recall when the phone call to Mr Phillips took place. It is possible, given the unusual sponsorship circumstances of the 2013 1D Tour whereby sponsorship opportunities were still being pursued after the tour had already sold out, that such sponsorship arrangements were made more quickly than was usual. If that were so, the call with Mr Phillips may have been on or after 26 February 2013. Further, the evidence of Mr Wiltshire that it would have been a “relatively vanilla idea” for Coles to sponsor 1D without “any kind of additional reason”, might suggest that Mr Wiltshire would not even have approached Mr Phillips unless he already had in mind the free 1D concert concept.

139. Further, as set out above, Mr Wiltshire’s evidence as to the date he came up with the idea that Coles could sponsor the 2013 1D Tour was somewhat ambiguous. Having regard to this ambiguity, it is not possible to reach any reliable conclusion as to whether or not the phone call that Mr Wiltshire made to Mr Phillips in January or February 2013 took place before or after the 26 February 2013 meeting.

140. In the circumstances, I would reject grounds 3 and 4 of the amended notice of appeal. Had it been necessary to make a finding as to this, I would, however, have rejected ground 2 of the notice of contention.

Ground 5

141. No written or oral submissions were advanced specifically in support of ground 5 which sought to impugn the primary judge’s findings as to Mr Filby’s credit, by reference to the cross-examination of Mr Kirk. In his written submissions, Mr Filby contended that the primary judge should not have rejected Mr Filby’s account of the 26 February 2013 meeting having regard to the fact that Mr Kirk could not recall what Mr Filby said and thus did not contest that Mr Filby may have said these things. Notwithstanding Mr Kirk’s evidence, which was entirely understandable in circumstances where he had no recollection of what Mr Filby said, for the reasons I have set out in some detail above, the primary judge did not err to the extent that his Honour rejected Mr Filby’s account. In these circumstances, I would reject ground 5.

Conclusion

142. It follows that the appeal should be dismissed.

143. Mr Filby, in his amended notice of appeal, seeks an order that the respondent pay his costs of the appeal and the trial below. In their written submissions Nine Live sought an order that Mr Filby’s appeal be dismissed and that Mr Filby should be ordered to pay Nine Live’s costs. Mr Filby did not make any submissions as to costs in his written submissions in reply. Nor did either party address costs in their oral submissions.

144. In these circumstances, the usual order for costs should be made. Mr Filby should pay Nine Live’s costs of the appeal.

145. I propose the following orders:

1. The appeal is dismissed.

2. The appellant pays the respondent’s costs of the appeal.

146. SIMPSON AJA: I agree with Stern JA.

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Decision last updated: 19 December 2023