Filby v TEG Live Pty Ltd [2023] NSWCA 320

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Filby v TEG Live Pty Ltd [2023] NSWCA 320 Hearing dates: 25 October 2023 Date of orders: 19 December 2023 Decision date: 19 December 2023 Before: White JA [1]; Stern JA [2]; Simpson AJA [146]. Decision: (1) The appeal is dismissed. (2) The appellant pays the respondent's costs of the appeal. Catchwords: EQUITY – breach of confidence – the respondent was the promoter of the boyband One Direction's 2013 Australian concert tour – the appellant attended a meeting with representatives of the respondent on 26 February 2013 to pitch Cashtime concept – prior to pitching Cashtime concept there was a brief discussion about One Direction's 2013 Australian concert tour – in early June 2013 the respondent announced an additional, free One Direction concert to be attended by Coles customers who purchased eligible products and were successful in an online draw as part of an arrangement between the respondent and Coles for Coles to provide sponsorship for the One Direction 2013 Australian concert tour – appellant claimed that in devising the additional, free One Direction concert, the respondent used confidential information he had supplied during the 26 February 2013 meeting – appellant alleged respondent breached equitable obligation of confidence – claim dismissed by primary judge – whether the primary judge erred in finding the information conveyed by the appellant was inherently unspecific – whether the primary judge erred in finding the information conveyed by the appellant was a very general and inchoate idea – whether the primary judge erred in finding that the information was not received by the respondent in circumstances importing an obligation of confidence – whether the primary judge erred in finding that there was no misuse of the information in question EVIDENCE – appellate review of witness evidence – where findings as to credibility and reliability of accounts given by various witnesses played a significant role in some of the primary judge's key findings rejecting the claim for breach of confidence – where primary judge enjoyed very real advantages over an appellate court by reason of having seen the witnesses – to the extent the appellant seeks to challenge findings of fact influenced by the primary judge's findings as to credibility and reliability he must establish findings were glaringly improbable or contrary to compelling inferences – whether primary judge's findings were glaringly improbable or contrary to compelling inferences APPEALS – procedure – appellant's claim would not exceed approximately $33,000 – where leave is required to appeal against a final judgment involving a claim or matter in issue of less than $100,000 – appellant sought leave to appeal out of time in his written submissions – appellant's appeal raises points of principle of some importance in which the errors that he relies upon go beyond what is merely arguable – leave to appeal granted Legislation Cited: Supreme Court Act (NSW), s 101(2)(r) Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 Cabal v United Mexican States (2001) 108 FCR 311; [2001] FCA 427 Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587 Corrs Pavey Whiting & Byrne v Collector of Customers (Vic) (1987) 14 FCR 434; [1987] FCA 266 Darvall McCutcheon v HK Frost Holdings Pty Ltd (in liq) (2002) VR 570; [2002] VSCA 85 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Fraser v Thames Television Ltd [1984] QB 44 Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Seager v Copydex [1967] 1 WLR 923 Secton Pty Ltd v Delawood Pty Ltd (1991) 21 IPR 136 Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1991) 28 FCR 291; [1991] FCA 154 Talbot v General Television Corporation Pty Ltd [1980] VR 224 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Watson v Foxman (1995) 49 NSWLR 315 Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 Category: Principal judgment Parties: Mark Filby (Appellant) TEG Live Pty Ltd (Respondent Representation: Counsel: M White SC and C Hart (Appellant) C Gleeson SC and E Hall (Respondent)