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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWCA 320
Decision Date: 19 December 2023

CaseChat Overview and Summary

The appellant, Mr Filby, brought a claim against the respondent, Teg Live Pty Ltd, alleging a breach of an equitable obligation of confidence. Mr Filby contended that confidential information he had provided to Teg Live during a meeting on 26 February 2013 was used by the respondent in devising an additional, free One Direction concert for Coles customers. This concert was part of a sponsorship arrangement between Teg Live and Coles for the 2013 Australian tour. The primary judge had dismissed Mr Filby's claim.

The appeal to the Court of Appeal concerned whether the primary judge had erred in several key findings. These included findings that the information conveyed by Mr Filby was inherently unspecific and a very general, inchoate idea, and that it was not received by Teg Live in circumstances importing an obligation of confidence. The appeal also questioned whether the primary judge erred in finding there was no misuse of the information. The Court of Appeal also considered the appellant's challenge to the primary judge's findings of fact, which were significantly influenced by the primary judge's assessment of witness credibility, and whether these findings were glaringly improbable or contrary to compelling inferences. Leave to appeal was granted as the appeal raised points of principle of some importance.

The Court of Appeal dismissed the appeal. The judges found that the primary judge had enjoyed significant advantages in assessing witness credibility, and that the appellant had not established that the primary judge's findings were glaringly improbable or contrary to compelling inferences. The Court upheld the primary judge's conclusion that the information provided by Mr Filby was too general and inchoate to be protected by an equitable obligation of confidence, and that it was not imparted in circumstances that would impose such an obligation. Consequently, there could be no breach of confidence.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

(1) The appeal is dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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…