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Weston v Publishing and Broadcasting Ltd

Weston v Publishing and Broadcasting Ltd

Case [2010] NSWSC 1288 5 November 2010

Limitation Periods

Discovery & Disclosure

Legal Privilege

Admissibility of Evidence

Civil Litigation & Procedure

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CITATION: Weston v Publishing and Broadcasting Limited [2010] NSWSC 1288

HEARING DATE(S): 01/11/10

JUDGMENT DATE :
5 November 2010

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Confidentiality orders to be discharged except as to litigation funding material.

CATCHWORDS: PROCEDURE - time for service of originating process extended on several occasions - defendants have pending application for discharge of extension orders - existing orders require that material put before court by plaintiffs on hearing of the extension applications be kept confidential - application by defendants for discharge of confidentiality orders - held legal professional privilege waived and confidentiality no longer maintainable except as to litigation funding documents

LEGISLATION CITED: Evidence Act 1995, ss 118, 119, 122
Trustee Act 1925, s 63
Uniform Civil Procedure Rules 2005, rules 1.12, 6.2(4)(a), 12.11(1)(e), 36.16(2)(b)

CATEGORY: Principal judgment

CASES CITED: Allstate Exploration NL v Ryan [2008] TASSC 79
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd [2009] NSWCA 104
Elfic Ltd v Macks [2000] QSC 18
Ex parte Fielder Gillespie Ltd [1984] 2 Qd R 339
House v R [1936] HCA 40; (1936) 55 CLR 499
John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324; (2004) 61 NSWLR 344
John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar [2006] NSWCA 160; (2006) 66 NSWLR 112
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 1320
Re Addstone Pty Ltd (1998) 83 FCR 583
Re Addstone Pty Ltd; Ex parte Macks (unreported, FCA, Mansfield J, 8 December 1998, BC9806604)
Re Kingsheath Club of Clubs Ltd [2003] FCA 1034
Rich v Long [2008] NSWSC 487
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61
TZ Ltd v ZMS Investments Pty Ltd [2010] NSWSC 138
Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239

PARTIES: Paul Gerard Weston as Special Purpose Liquidator of One.Tel Limited - First Plaintiff
One.Tel Limited - Second Plaintiff
News Limited - Sixth Defendant
Leteno Pty Limited - Seventh Defendant
Lachlan Keith Murdoch - Tenth Defendant
Peter John Macourt - Eleventh Defendant

FILE NUMBER(S): SC 2007/255083

COUNSEL: Mr A A D'Arcy - Plaintiffs
Mr J R J Lockhart - Sixth, Seventh, Tenth and Eleventh Defendants

SOLICITORS: Lipman Karas - Plaintiffs
Allens Arthur Robinson - Sixth, Seventh, Tenth and Eleventh Defendants

- 15 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

FRIDAY, 5 NOVEMBER 2010

2007/255083 PAUL GERARD WESTON AS SPECIAL PURPOSE LIQUIDATOR OF ONE.TEL LIMITED & ANOR v PUBLISHING AND BROADCASTING LTD & ORS

JUDGMENT

1 I am dealing with an interlocutory application in these pending proceedings which were commenced by statement of claim filed on 25 May 2007.

2 The application is advanced by the sixth, seventh, tenth and eleventh defendants (“the News defendants”) by notice of motion filed on 22…

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 Weston v Publishing and Broadcasting Ltd

Details

AGLC: Weston v Publishing and Broadcasting Ltd [2010] NSWSC 1288
Case: [2010] NSWSC 1288
Decision Date: 5 November 2010

CaseChat Overview and Summary

The plaintiff, Weston, filed a legal action against Publishing and Broadcasting Ltd, alleging that the company had violated privacy and copyright laws. The defendants, in response, sought to discharge the extensions of time granted for the service of the originating process and applied for the discharge of the confidentiality orders that required the material put before the court to be kept secret. The court was required to determine whether the legal professional privilege had been waived and, if so, whether the confidentiality orders could be discharged. The court also needed to consider whether the confidentiality should be maintained for any specific documents, particularly those related to litigation funding.

The court held that the legal professional privilege had indeed been waived, and as a result, the confidentiality of the material could no longer be maintained, except for the litigation funding documents. The court reasoned that the disclosure of privileged documents had effectively waived the privilege, and the defendants' access to this information meant they could no longer claim confidentiality. However, the court found that the litigation funding documents should remain confidential, as they were not subject to the same waiver and their disclosure could potentially reveal sensitive financial information.

Consequently, the court discharged the extension orders and the confidentiality orders, except for those pertaining to the litigation funding documents. The defendants were granted permission to serve the originating process, and the confidential nature of the litigation funding documents was preserved to protect the financial interests of the parties involved. The court's decision provided clarity on the scope of confidentiality and legal professional privilege in the context of the ongoing litigation between Weston and Publishing and Broadcasting Ltd.

Orders