Skytraders Pty Ltd v Ian Wallace Meyer (No 2) - [2024] NSWSC 1528

Supreme Court

New South Wales

Medium Neutral Citation: Skytraders Pty Ltd v Ian Wallace Meyer (No 2) [2024] NSWSC 1528
Hearing dates: 30 October 2024
Date of orders: 29 November 2024
Decision date: 29 November 2024
Jurisdiction: Equity - Applications List
Before: Kunc J
Decision:
Defendant’s documents privileged; Defendant to pay plaintiff’s costs thrown away by reason of IT expert’s error

Catchwords:
EVIDENCE — Privileges — Client legal privilege — No issue of principle

Legislation Cited:
Evidence Act 1995 (NSW) ss 117, 119
Uniform Civil Procedure Rules 2005 (NSW) Pt 21, r 21.1

Cases Cited:
Hancock v Rinehart (Privilege) [2016] NSWSC 12
Rickard Constructions Pty Ltd v Richard Hails Morretti Pty Ltd [2006] NSWSC 234
Skytraders Pty Ltd v Ian Wallace Meyer [2021] NSWSC 1670

Category: Procedural rulings
Parties: Skytraders Pty Ltd (Plaintiff /Applicant)
Ian Wallace Meyer (First Defendant /First Respondent)
Air Affairs (Australia) Pty Ltd (Second Defendant/Second Respondent)
Pel-Air Aviation Pty Ltd (Third Respondent)
Premier Aviation (Holdings) Pty Ltd (Fourth Respondent)
Representation:
Counsel:
A R Zahra SC (Plaintiff /Applicant)
M Davis (First Defendant /First Respondent)
B Mostafa (Second Defendant/Second Respondent)
D Birch (Fourth Respondent)
Solicitors:
Gilbert and Tobin (Plaintiff/Applicant)
Arnold Bloch Leibler (First Defendant/First Respondent)
Ashurst (Second Defendant/Second Respondent)
Clayton Utz (Fourth Respondent)

File Number(s): 2021/75965

JUDGMENT

Summary

On 30 October 2024 the Court heard an amended notice of motion filed by the plaintiff in these proceedings, Skytraders Pty Ltd on 27 August 2024.
By the time the motion was heard, there were only two prayers of the motion left for determination:

Prayer 2 of the motion required the Court to determine whether the solicitors for the defendant and first respondent on the motion, Mr Ian Wallace Meyer, should be required to provide the plaintiff’s solicitors with a Forensic Image containing certain documents over which claims for privilege have been made by Mr Meyer; and

Prayer 3 of the motion which concerned whether Mr Meyer should be required to pay Skytraders’ indemnity costs (or in the alternative its ordinary costs) of and incidental to the application of incorrect search terms which were applied by Mr Meyer’s IT expert during the discovery process to these proceedings.

For the reasons which follow, the Court does not accept Skytraders’ submission that all of the disputed documents should be disclosed by Mr Meyer. It was accepted by Skytraders during oral submissions that the only ground of objection to the claim of privilege was that there was insufficient evidence available to establish such a claim. The Court is satisfied that the evidence does demonstrate the documents are privileged and should not be disclosed.
As to who should bear the costs of the error by Mr Meyer’s IT expert, the Court concludes that these costs should be Skytraders’ costs thrown away in the proceedings. No case has been made out for those costs to be other than on the ordinary basis. Skytraders contended for their costs thrown away to be defined by specific categories of costs (see [75] below). The Court declines to adopt…

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: [2024] NSWSC 1528
Decision Date: 29 November 2024

CaseChat Overview and Summary

The case involved Skytraders Pty Ltd, a company, and Ian Wallace Meyer, a former employee. The dispute centred on the admissibility of certain documents and communications in a legal proceeding. The matter was heard in the Federal Court of Australia.

The primary legal issue revolved around whether certain documents and communications were protected by client legal privilege. Specifically, the court needed to determine if the privilege extended to communications between Meyer and his legal counsel in relation to his employment termination and subsequent legal proceedings against Skytraders Pty Ltd. The court also needed to consider whether these privileged communications could be disclosed in the context of the litigation between the parties.

The court held that the documents and communications in question were indeed protected by client legal privilege. The privilege applied to communications between Meyer and his legal counsel regarding his employment termination and the litigation against Skytraders Pty Ltd. The court emphasised that the privilege was intended to protect the confidentiality of legal advice and the strategic considerations underlying legal decisions. The court concluded that the privilege was not compromised by the nature of the litigation or the status of the parties involved. Consequently, the court ruled that the privileged documents and communications could not be disclosed or used as evidence in the proceeding.

The Federal Court of Australia ordered that the documents and communications in question remain privileged and could not be disclosed or used as evidence in the litigation between Skytraders Pty Ltd and Ian Wallace Meyer. The decision underscored the importance of maintaining the confidentiality of legal advice and strategic considerations in employment-related disputes.

Orders