Alafaci v Mangano - [2009] NSWSC 1131

CITATION: Alafaci v Mangano [2009] NSWSC 1131

HEARING DATE(S): 24 April 2009
28 April 2009
24 July 2009

JUDGMENT DATE :
30 October 2009

JUDGMENT OF: Smart AJ

DECISION: Each defendant adjudged guilty of civil contempt
injunctions granted
see paragraphs 132 - 134 for detailed orders

CATCHWORDS: civil or criminal contempt - access to documents produced under compulsory court process - documents so obtained not to be used for collateral purpose - express undertakings as per standard uplift forms for copying - "implied undertaking" or obligation imposed by law on parties and third parties - all elements of charges to be proved beyond reasonable doubt - person charging contempt electing to proceed by way of civil contempt even if proceedings intially punitive - injunctions granted

LEGISLATION CITED: Evidence Act 1995
Family Provision Act 1982
Supreme Court Act 1970
Supreme Court Rules 1970

CATEGORY: Principal judgment

CASES CITED: Ainsworth v Hanrahan (1991) 25 NSWLR 155
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Hearne v Street [2008] HCA 36
Jones v Dunkel (1959) 101 CLR 298
R v Masters (1992) 26 NSWLR 450
Witham v Holloway (1995) 183 CLR 525

TEXTS CITED: Cross on Evidence, 7th Aust. Edition

PARTIES: Mary Alafaci (First Plaintiff)
Paul Alafaci (Second Plaintiff)
Marco Mangano (First Defendant)
Janel Giuliano (Second Defendant)
Janice Mangano (Third Defendant)
Nicole Giuliano (aka Nicole Mangano, Nicole Tremaine and Nicola Tremaine) (Fourth Defendant)

FILE NUMBER(S): SC 3196/2008

COUNSEL: Ms J Needham SC/ W Hunt (First & Second Plaintiffs)
D Shoebridge (First Defendant)
R Hanrahan (Second, Third & Fourth Defendants)

SOLICITORS: Breene & Breene (Plaintiffs)
Streeter Law (First Defendant)
Mercuri & Co (Second, Third & Fourth Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Smart AJ

Friday 30 October 2009

3196/08 Mary Alafaci & Anor v Marco Mangano & 3 Ors

JUDGMENT

1 The plaintiffs, Mary Alafaci and Paul Alafaci, by their Amended Summons filed 5 August 2008 sought orders restraining each of the four defendants (Marco Mangano, Janel Giuliano (neé Mangano), Janice Mangano and Nicole Giuliano (also known as Nicole Mangano and Nicole Tremaine)) from using any documents obtained on subpoena during proceedings 5491 of 2006 sub nom Mangano & Ors v Alafaci & Ors (Family Provision Act proceedings) for any purpose not directly connected with those Supreme Court proceedings including but not limited to Guardianship Tribunal Proceedings number C/32576 and from divulging, communicating or referring to any of the documents or the information contained therein to any person. The plaintiffs also sought that each of the defendants be found guilty of contempt of court and “committed to imprisonment” and further or in the alternative that each of the defendants pay a fine and further or in the alternative that the estate of each defendant be subject to sequestration and further or in the alternative an order that each defendant be punished on terms as the Court thinks fit pursuant to Part 55…

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: [2009] NSWSC 1131
Decision Date: 30 October 2009

CaseChat Overview and Summary

In the matter of Alafaci v Mangano, the parties were engaged in a legal dispute concerning the use of documents obtained under compulsory court process. The case was heard by the Federal Court of Australia. The primary issue before the court was whether the use of such documents for a collateral purpose constituted contempt of court, and if so, whether it amounted to civil or criminal contempt. Additionally, the court had to determine whether the failure to adhere to express undertakings regarding the use of these documents could lead to contempt proceedings.

The court examined the legal principles surrounding contempt of court, specifically focusing on the obligations imposed by law on parties and third parties concerning documents obtained under a compulsory process. It was established that any use of these documents for a collateral purpose was strictly prohibited, and that this prohibition extended to both express and implied undertakings. The court further considered whether the charges of contempt had been proven beyond reasonable doubt, a standard applicable to criminal contempt, and whether the proceedings could be pursued as civil contempt despite their punitive nature.

In its decision, the court held that the use of the documents for a collateral purpose did indeed constitute contempt of court. It found that the contempt was of a civil nature, as the person charging the contempt had the option to proceed via civil contempt even if the proceedings were initially punitive. The court granted injunctions to prevent further use of the documents for the unauthorised purpose, ensuring compliance with the legal obligations imposed by the court process. The court's ruling emphasised the importance of adhering to the strict rules governing the use of documents obtained under a compulsory process and reinforced the consequences of breaching these obligations.

Orders