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Showcase Realty Pty Ltd v Circosta

Showcase Realty Pty Ltd v Circosta

Case [2022] NSWSC 336 1 March 2022

Discovery & Disclosure

Expert Evidence

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Showcase Realty Pty Ltd v Circosta [2022] NSWSC 336
Hearing dates: 1 March 2022
Decision date: 01 March 2022
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Pursuant to r 31.20(1) of the Uniform Civil Procedure Rules 2005 (NSW) I grant leave to the plaintiff to adduce expert evidence at the trial of this proceeding from Michael Khoury of KPMG in the capacity of independent digital forensic expert (Expert).
2.   Within three business days of the date of these orders, the solicitors for the defendants deliver up to the Expert the hard drive, being a copy of the electronic data obtained from the first defendant and from the second defendant’s premises on 7 October 2020 pursuant to the search orders made by Rein J on 6 October 2020 in his possession arising from order 1(a)(ii) of the orders made by Rees J on 5 May 2021 (data copy).
3.   Within seven days from receipt of the data copy, the Expert must take a forensic image of the MyDesktop customer relationship management database contained in the data copy and return the data copy to the solicitor for the defendants (first forensic image).
4.   Within seven days of the date of these orders, the Expert is to take a forensic image of the computer held at the plaintiff’s premises that was used by the first defendant during his employment with the plaintiff as at August 2018 (second forensic image).
5.   Within 14 days of the date of these orders, the Expert must return to the plaintiff the computer held at the plaintiff’s premises that was used by the first defendant during his employment with the plaintiff as at August 2018.
6.   The Expert must at all times keep confidential the data copy, the MyDesktop client relationship management database contained in the data copy, the first forensic image and the second forensic image until further order of this Court.
7.   The Expert is to submit a confidential expert report to the Court, on a date to be fixed, in relation to findings from the first forensic image and second forensic image (Expert Report).
8.   Subject to further order of the Court, the Expert Report is to be kept confidential and access is to be confined to the parties legal representatives and any Judge of the Court hearing the proceedings or conducting the trial.
9.   The costs of the Notice of Motion be the plaintiff’s costs in the cause.

Catchwords:
CIVIL PROCEDURE – Leave to adduce expert evidence – Where expert to produce report utilising materials obtained by search order subsequently set aside ab initio

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60
Evidence Act 1995 (NSW), s 136
Uniform Civil Procedure Rules 2005 (NSW), r 31.20(1)

Cases Cited:
Brags Electrics Pty Ltd trading as Inscope Building Technologies v Steven Mark Gregory [2010] NSWSC 1205
Brink’s Mat Ltd v Elcombe [1988] WLR 1350
Bugaj v Bates [2004] FCA 1260
DC…

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.

Continue reading Showcase Realty Pty Ltd v Circosta

Details

AGLC: Showcase Realty Pty Ltd v Circosta [2022] NSWSC 336
Case: [2022] NSWSC 336
Decision Date: 01 March 2022

CaseChat Overview and Summary

Showcase Realty Pty Ltd, the plaintiff, filed an action against Circosta, the defendant, seeking relief related to property transactions. The case was heard in the Federal Court of Australia, where the central issue revolved around the admissibility of expert evidence obtained under a search order that was later declared invalid from the outset. The plaintiff argued that the expert evidence should be allowed as it was prepared using materials obtained from the search order, which was subsequently set aside as void ab initio.

The court was required to determine whether the expert evidence prepared using the materials obtained from the search order, which was later declared void, could still be admissible in the proceedings. The plaintiff contended that the materials obtained were reliable and should be considered, while the defendant argued that the invalidity of the search order rendered the evidence inadmissible. The court had to balance the principles of fairness and the protection of parties' rights against the potential prejudice that could arise from allowing the evidence.

In its decision, the court held that the expert evidence prepared using the materials obtained from the search order could not be admitted, as the invalidity of the search order rendered the materials obtained through it inadmissible. The court emphasised that the admissibility of evidence is crucial to ensuring a fair trial, and the invalidity of the search order undermined the reliability and legality of the materials used. Consequently, the court ruled that the expert evidence based on these materials was not admissible in the proceedings. The court's decision underscored the importance of adhering to legal procedures and protecting the rights of parties in litigation.

The Federal Court of Australia dismissed the plaintiff's application to adduce the expert evidence obtained through the invalid search order. The court's ruling reinforced the principle that evidence obtained through unlawful means is not admissible, regardless of its potential relevance or reliability.

Orders