Findex Group Ltd v McKay

Case [2019] NSWCA 93

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Findex Group Ltd v McKay [2019] NSWCA 93
Hearing dates: 2 April 2019
Date of orders: 03 May 2019
Decision date: 03 May 2019
Before: Basten JA at [1];
Sackville AJA at [41];
Emmett AJA at [42]
Decision:

(1)   Refuse leave to appeal from orders 1, 3(ii) and 5 made by Ward CJ in Eq on 19 October 2018.

 (2)   Order that the applicants pay the costs of the respondent, David Keith McKay, in this Court.
Catchwords:

CIVIL PROCEDURE – interlocutory orders – application for leave to appeal – importance of maintaining tight rein on procedural appeals – respect for overriding principle – whether proposed appeal more than merely arguable

  CIVIL PROCEDURE – search orders – potential evidence seized and preserved – solicitors and officer of corporate applicant granted access – application by applicants for unrestricted access to material seized – proceedings not initiated – whether proposed access for purpose of discovery
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 63
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18
Evidence Act 1995 (NSW), s 136
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr25.19, 25.20
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
In Re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318
Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201
Category:Principal judgment
Parties:

Findex Group Ltd (First Applicant)
Spiro Paule (Second Applicant)
Danielle Ludbey (Third Applicant)
Phillip Hart (Fourth Applicant)

  David Keith McKay (Respondent)
Representation:

Counsel:
Mr I M Neil SC / Mr M A Friedgut (Applicants)
Ms E A Cheeseman SC / Mr M A Karam (Respondent)

  Solicitors:
Harmers Workplace Lawyers (Applicants)
Justice Dispute Resolution (Respondent)
File Number(s): 2018/358342
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity Division
Citation:
[2018] NSWSC 1567
Date of Decision:
19 October 2018
Before:
Ward CJ in Eq
File Number(s):
2016/271090

Judgment

  1. BASTEN JA: In September 2016 the applicants sought orders by way of preliminary discovery for the purpose of identifying the publisher of certain statements allegedly defamatory of them. The orders allowed them to identify the first respondent, David McKay, as the publisher of the impugned material.

  2. On 16 September 2016 the applicants obtained, ex parte, a search order against Mr McKay for the purpose of securing or preserving evidence. [1] The search order was executed on 20 September 2016. Over the following two years, further interlocutory steps were taken with respect to documents seized in the course of the search.

    1. Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 25.19.

  3. An affidavit in support of the application for the search order identified, in accordance with UCPR r 25.20, “a strong…

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AGLC
Findex Group Ltd v McKay [2019] NSWCA 93
Case
[2019] NSWCA 93
Decision Date

CaseChat Overview and Summary

Findex Group Ltd and others (the applicants) sought leave to appeal from interlocutory orders made by Ward CJ in Eq. The dispute concerned access to material seized under a search order, where proceedings had not yet been initiated. The applicants sought unrestricted access to the seized material, while the respondent, David Keith McKay, resisted this. The application for leave to appeal was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether leave to appeal should be granted from the Chief Judge's interlocutory orders, and whether the proposed appeal was more than merely arguable, given the general principle of maintaining a tight rein on procedural appeals. A further issue was whether the applicants' proposed access to the seized material was for the purpose of discovery, in circumstances where no substantive proceedings had been commenced.

The Court of Appeal refused leave to appeal. The judges applied the principle that appeals from interlocutory orders should be approached with caution and that leave should only be granted if the appeal has a real prospect of success, or if there is some other compelling reason for an appeal to be heard. The Court considered that the proposed appeal was not more than merely arguable and that the Chief Judge's orders were appropriate in the circumstances.

Consequently, the Court ordered that leave to appeal be refused from the orders made by Ward CJ in Eq on 19 October 2018. The applicants were also ordered to pay the costs of the respondent, David Keith McKay, in the Court of Appeal.

Orders

Orders of the court

(1) Refuse leave to appeal from orders 1, 3(ii) and 5 made by Ward CJ in Eq on 19 October 2018.

(2) Order that the applicants pay the costs of the respondent, David Keith McKay, in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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