Showcase Realty Pty Ltd v Circosta [2022] NSWSC 336

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 Payments Pty Ltd v Next Payments Pty Ltd (2016) 51 VR 151; [2016] VSC 315 Eastlings Pty Ltd v Calidu Import Export Pty Ltd [2020] NSWSC 1041 Findex Group Limited v McKay [2019] NSWCA 93 Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567 Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 Metso Minerals (Aust) Pty Ltd v Kalra (No. 3) [2008] FCA 1201 Microsoft Corp v Goodview Electronics Pty Ltd (1999) 46 IPR 159; [1999] FCA 754 Rauland Australia Pty Ltd v Johnson (No 2) [2019] FCA 1175 Re Lamond (No 4) [2017] FCA 820 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 Showcase Realty Pty Ltd v Circosta [2021] NSWSC 355 Skytraders Pty Ltd v Meyer [2021] NSWSC 1670 Sullivan v Sclanders (2000) 77 SASR 419; [2000] SASC 273 Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 Texts Cited: Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017) Category: Procedural rulings Parties: Showcase Realty Pty Ltd (Plaintiff) Nathan Circosta (First Defendant) Oproperty Pty Ltd (Second Defendant) Representation: Counsel: M Condon SC (Plaintiff) R Jedrzejczyk (Defendants)