Arogen Pty Ltd & Ors v O'Meley & Anor

Judgment 1These reasons concern two Notices of Motion, namely the first and second defendants' Notice of Motion of 12 September 2013 seeking to rely on further evidence and the plaintiffs' Notice of Motion of 27 September 2013 seeking orders that the material not be admitted and that they have leave to approach the appropriate authorities with the material which they have acquired in this case because the doctrine in Harman v Home Office [1983] 1 AC 280 may prevent them from doing so unless the Court gives leave. 2The case concerns the ownership of the shares in various companies in the Arogen Group. These companies are involved in the horizontal pipe laying industry, mainly servicing persons who are constructing roads. The disputants are the matriarch of the family, Roslyn O'Meley, and her sons Anthony (Tony) and Rodney O'Meley. The parties have lined up with Roslyn being a plaintiff (and Rodney as a cross-defendant) and Anthony and his wife Ellie being two of the defendants. 3I heard the main proceedings between 30 July and 2 August 2013. I then listed it for judgment on Friday, 30 August 2013. However I was asked on that day by the defendants not to deliver judgment as they had an application to make for me to consider further evidence. I did not deliver my reasons and adjourned the matter. In due course the two Notices of Motion to which I have already referred were filed and these came on for hearing before me on 12 and 13 November 2013. Mr M K Condon SC and Ms S Clement appeared for the plaintiffs and Mr R Perla for the defendants. 4I tried the defendants' Notice of Motion first. This was logical and was also done by consent. Essentially the defendants' factual case was that a Mr Ahoy was walking down the street in Kurri Kurri one day, probably in August 2013, when he was approached by Rodney O'Meley and handed an envelope with a request that he give that envelope to Anthony O'Meley. In due course Mr Ahoy said he took that envelope down to Sydney and he went to Anthony O'Meley's dwelling where he found a Mr Field waiting to see Anthony O'Meley. Mr Ahoy gave the envelope to Mr Field who deposes that he gave it to Mr O'Meley. After a little delay, Ellie O'Meley opened the envelope and she found in there what had been called Annexure A and Annexure B. Annexure A appears to be a copy of a statement which Roslyn O'Meley gave to her solicitors. Annexure B appears to be a statement given by Rodney O'Meley to his solicitors. It is said, and I have not examined the documents in detail, that both statements are contrary to the evidence that was actually given by those witnesses to me during the hearing. 5The plaintiffs say that the evidence was not obtained in the way in which Mr Ahoy deposes but rather it was obtained from their computers by their computers being hacked into by Ellie O'Meley or her associates. The plaintiffs object to the evidence being tendered on the basis that (a) it was privileged and there had been no waiver of privilege or (b) that it was illegally obtained. 6I will first deal with the question of fact as to whether the defendants have established how the material got into their possession. Unfortunately for the defendants, both Mr Ahoy and Mr Field were some of the worst witnesses that I have encountered in 28 years on the Supreme Court Bench. Mr Ahoy made an affidavit on 11 September 2013. In it he said that he could not remember the exact date but in the weeks commencing 12 or 19 August he was in Kurri Kurri and saw Rodney walking along the road. Mr Ahoy waved to him and Rodney waved back. At least 30 minutes, but maybe a couple of hours, after seeing Rodney Mr Ahoy received a call on his mobile phone from what he calls a blocked number and the caller said "Clive, it's Rodney. Can you meet me in the park soon?". The deponent agreed. He then says he walked to the park which took about 20 minutes and about one or two minutes later Rodney walked up to the park and gave him a yellow A4 envelope and said "Can you give this to Tony?" The deponent stayed in the Hunter area for a week or two and then came to Sydney to visit a nephew and within a couple of days of coming to Sydney he rang Anthony and said that he had an envelope from Rodney. He went to Anthony's place at Woolloomooloo. Anthony was not in but he saw Joshua Field in the car park and asked him to give the envelope to Tony. 7However in cross-examination Mr Ahoy said that Rodney was not walking but was driving a car and he drove past him and stopped up the road. Then the deponent waved to Rodney but Rodney did not speak. Shortly afterwards, probably about 20 minutes later, but it could have been longer, Rodney called him on the phone and asked him to meet in the park. The only conversation on the phone was Rodney saying "meet me at the park" whereupon Mr Ahoy hung up. The park was about half-an-hour's walk from where Mr Ahoy was, however he walked to the park and there was a wait of a couple of hours before Rodney turned up. This of course contrasts with his affidavit where he says it was one or two minutes later. 8When Rodney did turn up all he said was "give this to Tony"; there was no other conversation. The envelope was a yellow or browny colour and it obviously had papers in it. There was some cross-examination as to how thick but it did not really elicit any meaningful details. 9In cross-examination Mr Ahoy said that he only stayed in the Hunter for a couple of days and then he went home to Armidale where he spent two weeks. After that he went down to Sydney to see his nephew. 10Mr Ahoy said he came to Sydney by train from Armidale but at page 22 of the transcript he said he got on the train at Broadmeadow, which is a suburban station of Newcastle. 11In cross-examination he said he telephoned Tony a day or two after he got to Sydney. He called at Tony's place at Woolloomooloo but Tony was not there but there was a gentleman by the name of Josh. Mr Ahoy was asked "what is his surname?"; answer: "I don't know". However on the next page of the transcript he was referred to his affidavit which mentioned a Josh Field and counsel said "you just told his Honour a few moments ago you didn't know Josh's surname" to which the answer was "when I first met him I didn't but when I give him the information he introduced himself as Josh Field". Mr Field was evidently on the phone when he was approached by Mr Ahoy but he said he would give the envelope to Tony. When asked about the conversation Mr Ahoy said that Mr Field said "Gidday, I'm Josh Field" and at that stage he was given the envelope. 12Mr Field also swore an affidavit. He said that at about 3.00 pm on 28 August 2013 he arrived at Anthony O'Meley's unit in Cowper Wharf Road, Woolloomooloo. He parked his car in the car park and waited. He was having a heated telephone conversation on his mobile phone to his ex-partner when he saw Clive Ahoy come over to him and Clive handed him an orange envelope and said "can you give these to Tony?". About 20 minutes later Anthony O'Meley arrived and Mr Field gave him the envelope. 13In cross-examination Mr Field put the time of his meeting with Mr Ahoy at 12 noon not three o'clock. Though later he fixed on two o'clock. He admitted that he was not too sure of the date, whether it was 28 August or 18 August or some other date. He also gave some confused evidence as to the phone he was using. The mainstream of his evidence was that he had borrowed it from a friend but never gave it back to the friend because he lost it. He could not remember his friend's name. 14Rodney O'Meley made an affidavit completely denying everything that Mr Ahoy said. He says the last time he saw Mr Ahoy was in late February or early March 2013 and when walking into the IGA shop in West Kempsey Mr Ahoy was walking out and said "have you got any work for me?" and Rodney said "no we're right". He denies seeing Mr Ahoy in either of the weeks commencing 12 or 19 August or telephoning Mr Ahoy and meeting him in a park. 15Indeed, during the period Rodney was working during the day on the Hunter Expressway though he was sometimes in the Arogen office at Kurri Kurri or at his family's home in Kurri Kurri. He denies placing any documents in an envelope to give to Mr Ahoy. He also says that he never waived any privilege in Annexure B. 16In view of the large number of contradictions in Mr Ahoy's evidence and to a lesser extent, but significantly, the contradictions in Mr Field's affidavit and the fact that Rodney was cross-examined but not affected, I cannot accept either Mr Ahoy's evidence or Mr Field's evidence. Accordingly I cannot accept the defendants' version as to how the documents came into their possession. 17The alternative scenario is one which the plaintiffs sought to establish by a considerable amount of technical evidence as to how one can hack into an account of a subscriber to Hotmail. It would have been difficult to decide beyond reasonable doubt as to whether there had been hacking. However there is sufficient evidence, especially when one discards the defendants' theory as to how they attained the documents, for me to find on the balance of probabilities that there was hacking by the defendants or their agents and that the way in which they obtained the documents Annexure A and Annexure B was through the hacking of the plaintiffs' computers. 18As I say the evidence was voluminous and a little technical. It would seem that Anthony and Ellie O'Meley have three or four telephone numbers each. There was evidence from Ermelinda Clark that she was given voice recordings of calls that somebody made to Telstra about the plaintiffs' phone numbers. She says that she recognised the voice as being that of Ellie O'Meley, a voice with which she was particularly familiar. 19Ellie O'Meley denies that she made phone calls to Telstra to obtain access to Rodney's accounts so that documents could be removed from his electronic database. 20Mr Perla says that the Court needs to weigh Ermelinda Clark's evidence carefully and must bear in mind that with respect to a number of the telephone conversations she qualifies her evidence with a 50% certainty as to the identity of the speaker. He refers to what McHugh J said in Festa v The Queen [2001] HCA 72; 208 CLR 593 at 619-620 [84] that one must be very careful with evidence identifying a voice. The risk of mistake is as great as that in identifying a person. 21However Mr Perla also says that there is very little evidence connecting Annexure A, the statement made by Roslyn, with what was in her electronic databank. There is an evidentiary gap in the plaintiffs' case which, he puts, is fatal. 22I see that there is a bit of a gap in the plaintiffs' case but I do not consider it fatal. It is quite clear that the solicitor sent to Roslyn a draft of her statement electronically and it would follow almost as night follows day that it is somewhere in her electronic data. There was some inconclusive evidence as to who owned a phone number which I will call 163 because those are the last three digits of the 10 digit number. It would seem that by deception Rodney's telephone calls were diverted from his usual mobile phone to phone 163. Vodafone, one of the suppliers of mobile phone numbers, has indicated that 163 is a prepaid service and that the SIM card was sold at Coles at Surry Hills and the name of the account is "Applecherry" with an address in Young Street, Cremorne. The card was activated as of 6 August 2013. As I indicated, there was obviously some fraud going on with number 163. There is not the evidence that connects it with the defendants but the whole of their conduct, including the probabilities that Ellie O'Meley was the person who impersonated Roslyn with Telstra, indicates that the balance of probabilities favours the defendants hacking into the plaintiffs' telephone electronic database. 23Accordingly the evidence must be considered as evidence which was illegally obtained because, for instance, of s 477.1 of the Schedule to the Criminal Code Act 1995 (Cth). 24Section 138 of the Evidence Act 1995 provides that evidence which was obtained improperly or in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence which has been obtained in the way in which the evidence was obtained. Sub-section 3 gives the Court guidance as to what factors might be taken into account in assessing the desirability or otherwise of admitting the evidence. The onus of establishing impropriety rests upon the plaintiffs but they have to my mind surmounted that barrier. The onus now is on the defendants to say why, notwithstanding the way in which the evidence was obtained, it should be admitted see: Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 at 500-501 [28]. I cannot see any reliable evidence from which I could hold that the evidence should be admitted. 25Accordingly, I should not admit it. 26If I were wrong on this, Annexure A and Annexure B are clearly statements given by the plaintiffs to their solicitors in connection with the case that I heard last August. Prima facie they are privileged. If the defendants' evidence as to how Tony acquired these statements was accepted then it might be thought that Rodney, at least for himself, had waived privilege. However I do not accept that evidence and I do not accept that Rodney waived privilege and there is no evidence that anybody else waived privilege. Accordingly, s 118 of the Evidence Act 1995 provides an additional reason for not admitting the evidence. 27Therefore the defendants' Notice of Motion must be dismissed with costs on the indemnity basis. 28As to the plaintiffs' Notice of Motion there is no need to make any orders because I have already dealt with them under the defendants' Notice of Motion, other than prayers 2 and 4. As the facts have fallen out there does not appear to me to be any answer to those prayers. Prayer 2 is, with respect, not particularly well framed and the proper orders should be that the defendants are ordered to deliver up to the plaintiffs all copies of the documents Annexures A and B to the affidavit of Ellie Frances O'Meley sworn 5 September 2013 (whether in hard copy format or electronic format) that are in their possession, custody or control or which are in the possession, custody or control of any servant or agent thereof within seven days. 29Order also the plaintiffs be released from the implied undertaking arising under the principles set out in Harman v Home Office [1983] 1 AC 280 for the purpose of providing the documents referred to above to the appropriate authority with jurisdiction to investigate and prosecute criminal offences. 30Order that the defendants pay the plaintiffs' costs of the Motion on the indemnity basis. 31I now will publish the judgment that I intended to publish on 30 August 2013. It was agreed by the parties that I should not take into account in making my decision on the principal matters in this case any impressions that I may have obtained as to credit of the parties in hearing these Notices of Motion. Accordingly the judgment I deliver, Arogen Pty Ltd v O'Meley (No 1) [2013] NSWSC 1197, is exactly the same as the one I intended to hand down on 30 August 2013.