Alafaci v Mangano - [2009] NSWSC 1131

No judgment structure available for this case.

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 r 13(3) of the Supreme Court Rules 1970 (suspension of punishment and bonds amongst other punishments). The Amended Summons added Nicole as the fourth defendant; the initiating Summons of 11 June 2008 was against the first, second and third defendants.

2 In her opening speech Senior Counsel for the plaintiffs announced that the plaintiffs were not seeking incarceration of the defendants despite the prayer in the Amended Summons to that effect. She stated that the plaintiffs were seeking:

(This was repeated in the closing written submissions of 24 July 2009 of the plaintiffs.)

3 Mary Alafaci is the mother of Paul Alafaci and Janice Mangano. Marco, Janel and Nicole are the children of Janice. I will use first names for ease of reference. The family is divided into two bitter warring factions with Mary and Paul comprising one faction and Janice, Marco, Janel and Nicole the other. Mary Alafaci is now an 87 year-old widow. Her husband Anthony Alafaci died on 19 October 2005. On 13 January 2006 probate of his will of 19 March 2003 was granted to Mary Alafaci, Paul Alafaci and Angelo Hatsatouris (a solicitor). Anthony Alafaci left his entire estate to his widow, Mary. The estate mainly consisted of shares in Pamaja Pty Limited valued at $2,079,000. There were assets held in the joint names of Anthony and Mary of considerable value. It was estimated that the total value of the assets which passed to Mary was of the order of $6 million.

Procedural preliminaries

4 The Statements of Charge were not filed with the Amended Summon nor by the extended date of 10 October 2008. The Statements of Charge were filed and served about 24 October 2008. On 3 November 2008 directions were given that the defendants serve their affidavits by 17 November 2008 and the plaintiffs serve any affidavits in reply by 24 November 2008. On 1 December 2008 the hearing of the plaintiffs’ Amended Summons was fixed for hearing on 24 April 2009.

5 While it is established that strict compliance with the Rules and Orders of the Court is required in contempt matters, I enlarge the time for complying with SCR 55.7 and the Orders of the Court until 24 October 2008 for the following reasons.

a) Each of the defendants has been aware of the substance of the charge made against such defendant since the end of October 2008. Each of the defendants has had the plaintiffs’ principal affidavits since late August 2008.

6 On 28 April 2009 during the hearing, the plaintiffs were granted leave to file and filed Amended Statements of Charge after the defendants had raised some objections to those of 24 October 2008.

Service

7 Objection was also taken that the plaintiffs had not complied with SCR 55.9 which provides:

“The notice of motion or summons, the statement of charge and the affidavits shall be served personally on the contemnor.”

8 Each of the four defendants has entered an appearance. Each of the four defendants was represented by counsel when the Court made the consent orders of 8 October 2008. Each was represented in Court on 3 November 2008 when directions were made for the filing of the defendants’ affidavits.

9 In the light of the history of the matter and the participation of the defendants in these proceedings any right to personal service of the Summons and Statements of Charge has been waived. Alternatively, I would dispense with SCR 55.9, see s 14 of Civil Procedure Act 2005. I do not regard the general words “rules of Court” as limited to the UCP Rules. See also s10 of that Act.

Background

10 On 14 November 2005 Janel commenced proceedings for a guardianship order in relation to Mary. She was supported by her brother, Marco, and her mother, Janice. On 29 March 2006 Janel commenced Guardianship Tribunal proceedings to review an Enduring Power of Attorney granted by Mary Alafaci in favour of her son, Paul. On 3 May 2006 the application for review of the Enduring Power of Attorney was adjourned for six months and the application for guardianship of Mary was dismissed. On 7 May 2007 the application for a financial management order in respect of Mary was dismissed, as was the application to review the Enduring Power of Attorney granted in 2006 to her son, Paul Alafaci. That Power of Attorney had been revoked and the Tribunal no longer had jurisdiction to consider it. On 15 December 2006 Janice, Marco and Paul Mangano (grandson of Anthony) commenced proceedings under the Family Provision Act 1982 (5491 of 2006).

11 On 5 September 2007 a Calderbank offer was accepted by Mr Marco Mangano. That involved:

12 On 31 August 2007 Mr Grose, an accountant, became the sole director of Pamaja Pty Ltd.

13 On 12 November 2007 Janel lodged an application for the appointment of a financial manager in respect of her grandmother, Mrs Mary Alafaci. The stated basis was that the place of residence of Mrs Alafaci at Rose Bay was on the market for sale and this was contrary to what her attorney stated he would do in the earlier Guardianship Tribunal hearing.

14 Undertakings were given by Mrs Alafaci and Mr Grose, on 7 and 11 December 2007 respectively, that the balance of proceeds of 43 Chamberlain Avenue, Rose Bay, after purchase of an alternative residence, were to be retained pending the outcome of the Family Provision Act proceedings (5491/2006), and that there would be no sale, transfer or other dealing with the shares in Pamaja Pty Ltd and no demand as to monies owed by that company to Mrs Alafaci, pending the outcome of the proceedings.

15 Consequent upon the undertakings, on 19 December 2007, at the request of Janel, the Guardianship Tribunal ordered that the application for a financial management order in relation to Mrs Mary Alafaci be withdrawn.

16 The history of the Family Provision Act proceedings 5491/2006 (“FPA proceedings”) appears to be:

17 The documents were produced to the Court as required and access was granted to them by a Registrar on 2 May 2008.

18 About 5 or 6 May 2008, Janel arranged with Nicole for her to obtain access to the documents produced on subpoena in her mother’s legal matter. Nicole worked in a legal firm in a junior clerical capacity as a mortgage solicitor’s assistant. This was not the firm acting for her mother in the Family Provision Act proceedings. Nicole procured another junior employee, who worked for the same firm as a clerk/messenger, to have the documents produced on subpoena, uplifted and copied. This second junior employee has never studied law subjects. Nicole told him that there was an estate matter, a family dispute coming up in the Supreme Court within the next couple of days, that some documents had been produced on subpoena and that access had been granted to them. She inquired if he could get (copies of) those documents for her. He said that he got a standard uplifting form and asked her to fill in the details. Unbeknown to the partners and solicitors of the firm employing Nicole, the junior clerk/ messenger arranged for an approved copying firm to uplift and copy the documents which had been produced to the Court on subpoena. The documents so copied were delivered to Nicole on the afternoon of 6 May 2008.

19 At the request of the junior clerk/ messenger Nicole completed the top part of the standard Supreme Court form headed “Application to uplift subpoena pursuant to Practice Note SC Gen 3”. That involved Nicole inserting the number of the proceedings (5491/06) and the name of Janice Mangano as plaintiff and Mary Alafaci as defendant.

20 The details of the packets of documents to be copied were in the handwriting of the junior clerk/ messenger. He must have been told of those details. Whether Nicole knew those details does not appear. He said that the date of “2 May 2008”, being the date when access was granted, is not in his handwriting. It looks like that of Nicole upon a comparison being made of “Mary” and “May” on that form.

21 Underneath “(2) Date Access Granted: 2 May 08”, the following appears:

“All documents copied by the specified firm and forwarded to me will be used for the purposes only of the proceedings in which they have been produced to the Court.

Underneath is a box headed “Details of person making the request”. As completed by the junior clerk/ messenger the request appears to have been made by the solicitor for the plaintiff. That was incorrect.

22 The junior clerk/ messenger believes that Nicole first raised the matter of obtaining copies of the documents urgently with him on 5 May 2008 and that the matter was pursued with and by him on 6 May 2008.

23 Late on Tuesday 6 May 2008 (22:37), an email application was submitted in the name of Marco Mangano from the IP address 58.108.167.36 to the Guardianship Tribunal, which marked it as received on 7 May 2008. The Applicant was shown as Marco Mangano and the application sought the appointment of “financial manager only”. Janel is shown as “Other interested person 1”. The basis of the application is stated as:

“Son who is a former bankrupt has now obtained credits cards and store credit cards in which my grandmother is paying for and being taken advantage of.”

“This matter has been brought to the guardianship tribinal (sic) previously and a financial manager was appointed and this manager is doing this job as we have evidence of this management (sic).”

“My uncle who is a (sic) ex bankrupt has store credit cards and bank credit cards given to him and paid for by my grandmother.

PLEASE CONTACT ME ASAP AS THIS IS AN URGENT MATTER.”

24 About 4:01 pm on 7 May 2008, an email in the name of Marco Mangano, using the same internet address from which the application was transmitted, stated:

“Please find attached evidence in relation to financial abuse of Mary Alafaci.”

25 Most, if not all, of the supporting documents enclosed were identical with those produced on subpoena by Michael Grose and Pamaja Pty Limited (see pp 145 – 187 of Exhibit A). There was a substantial contest as to who had sent the email at 4.01 pm and whether Mr Marco Mangano had authorised or permitted its despatch and the accompanying documents.

26 On 8 May 2008 Janice’s FPA application was settled. See Short Minutes of that day. The releases of rights by Janice against the estates of her deceased father, Anthony Alafaci and her mother Mary Alafaci were approved. The orders provided for Janice to receive a large legacy.

27 On 12 May 2008 the Guardianship Tribunal received a spreadsheet (comprising five pages) of payments from 13 May 2006 to March 2008 which it believed was submitted in support of Mr Marco Mangano’s application of 6 or 7 May 2008.

28 On 20 May 2008 the Guardianship Tribunal advised the solicitor for Mrs Mary Alafaci that on 7 May 2008 Mr Marco Mangano made an application to the Tribunal as to his client. By letter of that day the solicitor requested a copy of that application and any related correspondence or supporting material. The Tribunal sent a copy of the application to the solicitor on 30 May 2008 and a copy of the supporting material on 2 June 2008.

29 By request bearing date 10 June 2008 Marco Mangano stated that he wished to withdraw the application concerning Mary Alafaci made to the Guardianship Tribunal for financial management. He wrote:

“I do not want to proceed any further due to family illness.”

30 While the plaintiff challenged the date on which the request was stated to be signed, I was not satisfied that the challenge should be upheld. It is true that the Tribunal has stamped the request as received on 11 June 2008. The request could well have been completed on 10 June 2008, sent late that day and recorded as received on 11 June 2008 by the Tribunal.

31 Ms Sue Young, Team Leader at the Tribunal, has recorded on 11 June 2008:

“P/C this morning (about 9.30) from Marco Mangano.

Said he had both faxed and emailed a request to withdraw his app.

Said because he had sent copies of docs subpoenae’d for another court he was being taken to court by his grandmother and uncle

…

wants to withdraw his application.

32 The early morning telephone call recorded by Ms Young suggests that the request to withdraw had probably been sent earlier. I have not overlooked that amongst the papers is a copy of an email sent by Marco Mangano on 11 June 2009, recorded as posted at 1.21 pm. The plaintiffs sought to establish that the request was not signed on 10 June 2008 as the Summons and the original statement of charge against Marco, Janel and Janice were filed on 11 June 2009. This does not matter. By the time Marco signed the request he was probably aware that proceedings for contempt were going to be taken against him.

33 There was a dispute between the plaintiffs and the defendants whether these proceedings should be viewed as civil contempt proceedings or criminal contempt proceedings.

34 The plaintiff contended that what was involved was a breach of an undertaking and that this was a civil contempt. Reliance was placed on the judgment of Brennan, Deane, Toohey and Gaudron JJ in Witham v Holloway (1995) 183 CLR 525 at pp 530 – 531.

35 The first defendant contended that these proceedings should be viewed as criminal contempt proceedings. He submitted that from the very moment they were instituted they have been instituted and maintained almost entirely for the purpose of punishing the defendants. It was submitted that there was no evidence of contumacious conduct by the defendants.

36 I understood that the second, third and fourth defendants adopted this approach. Reliance was placed upon Hearne v Street [2008] HCA 36; (2008) 325 CLR 125. In Australasian Meat Industry Employees Union vMudginberri Station Pty Ltd (1986) 161 CLR 98 at 107 – 108 the High Court noted the distinction between civil and criminal contempt occasions very great difficulty. However, it is a distinction maintained in ss 101(5) and (6) of the Supreme Court Act 1970 (NSW). There is no right of appeal in any proceedings that relate to criminal contempt being a judgment or order by which the person charged with contempt is found not to have committed contempt.

37 In Hearne, at [133] Hayne, Heydon and Crennan JJ said:

“In the end the appellants departed from any suggestion that all contempts were criminal by supporting the dissenting opinion of Handley AJA that the question whether an appeal lay to the Court of Appeal from the dismissal of proceedings for contempt depended on whether ‘it clearly appears that the proceedings are remedial or coercive in nature’ as distinct from being punitive. The distinction between that which is remedial or coercive on the one hand and that which is punitive on the other corresponds with the distinction between seeking to ensure compliance with the relevant obligation and seeking to punish for past breaches of it. It is a distinction to be applied, as the parties agreed, bearing in mind the need to approach the application of the person seeking the remedies for contempt by reference to its substantial character, not to merely formal or incidental features. On the facts, Handley AJA considered that the purpose was not remedial or coercive, but punitive. On the other hand, the analysis of the facts made by the majority led them to the opposite view.” (citations omitted)

38 These Justices thought that the better view was that of the majority in the light of the history as the residents must have perceived it.

39 In the present case when the FPA proceedings concluded on 8 May 2008 all the claims against the deceased’s estate had been resolved. Further, any claims of Marco Mangano, Fiona Lane, Anthony Alifaci, Paul Mangano and Janice Mangano as against the estate of Mary Alafaci had been released.

40 I have earlier summarised the relief sought in the Amended Summons of 5 August 2008.

41 In paragraph 2 of these reasons I have set out the relief which the plaintiffs presently seek. Proceedings C/32576 in the Guardianship Tribunal have been withdrawn.

42 Janice Mangano and Marco Mangano no longer have any interest in the estate of Mary Alafaci. Realistically, they would have little interest in instituting Guardianship proceedings of any kind in respect of Mary Alafaci. Janel and Nicole do not appear to have given any release in respect of any claims they may have against the estate of Mary Alafaci. Whether either Janel or Nicole has sustainable claims against the estate of Mary Alafaci when she dies was not examined in these proceedings.

43 It was submitted by counsel for the plaintiffs that the proceedings as presently pressed were remedial or coercive and not punitive.

44 It was desired by the plaintiffs to put an end to applications being made to the Guardianship Tribunal for orders, including financial management orders, in relation to Mary Alafaci.

45 The plaintiffs relied on the history of guardianship proceedings being commenced in relation to Mary Alafaci (T 130). It was stated that the plaintiffs wanted to put a stop to the ongoing litigation between the plaintiffs and the defendants and stop the use of documents produced on subpoena in the FPA proceedings in Guardianship proceedings.

46 The plaintiffs pointed out that the Guardianship proceedings instituted about 6 May 2008 were started two days before the hearing of the FPA proceedings and not disclosed to the executors of the will of Anthony Alafaci at that hearing.

47 The plaintiffs submitted that the use of the documents produced on subpoena two days before a settlement went into effect without the plaintiffs knowing, at the time the settlement occurred, that the new guardianship proceedings had been commenced should lead the court to make orders having the effect of deterring any further action being taken by the defendants. It was submitted that such conduct shows an attitude to the processes of the Court which should lead to the results the plaintiffs seek.

48 Documents produced to the Court on subpoena should only be used for the purposes of those proceedings unless and until they are admitted into evidence in proceedings in open court or the court grants leave to their wider use. However, I would be reluctant to make orders having the effect of stopping the institution of guardianship proceedings where that course is warranted.

49 The plaintiffs insisted that they were entitled to change their course in preparing their case. This they had done and made their position clear at the start of the hearing.

50 The plaintiffs advanced these reasons in support of their contention that these proceedings were coercive and remedial rather than punitive:

a) imprisonment was not being sought;

b) they were seeking a deterrent which is a fine;

c) these parties have only agreed by consent not to use the documents again;

d) this is a contempt not arising out of a personal right of the plaintiffs but of the Court. The Court has a duty to deter other people from using documents in this particular way;

Hearne v Street.

51 The first defendant, in support of his submission that these proceedings were of the nature of criminal contempt proceedings, relied upon:

a) The plaintiffs in their Amended Summons sought the incarceration of the defendants and are still seeking to punish them.

b) the failure of the plaintiffs to identify a coercive order amongst the relief sought. At its highest, the plaintiffs’ case appeared to be if the defendants get horribly punished in these proceedings that will hopefully restrain them in the future;

c) on the day these proceedings were commenced, the application in the guardianship proceedings was withdrawn. There was no ongoing contempt and nothing to purge;

52 The second, third and fourth defendants also seemed to adopt the approach that these proceedings were criminal in nature and to point up their punitive aspects.

53 There was a practical reason for the difference in approach between the plaintiffs and the defendants. The plaintiffs relied heavily on the inferences the Court should draw from the materials before it, none of the defendants giving evidence and the principles in Jones v Dunkel (1959) 101 CLR 298.

54 The plaintiffs contended that, apart from the principle that all charges of contempt must be proved beyond reasonable doubt, these were essentially civil proceedings governed by the principles that apply to civil proceedings. This included the rules or principles that govern the admission and use of evidence in civil proceedings, including the application of the principles in Jones v Dunkel.

55 I make these further comments:

a) It was reasonable for the plaintiffs, on the filing of the Summons on 11 June 2008, to seek injunctive relief. That relief was refined in the Amended Summons filed 5 August 2008 but the injunctive relief sought in both documents was, in substance, directed to the same end. As the application to the Guardianship Tribunal was withdrawn about 11 June 2008, is the injunctive relief being sought any longer reasonably necessary? There is an absence of acceptable evidence from the various defendants as to their future non-use of the materials produced under subpoena by Mr Grose on his own behalf and on behalf of Pamaja except with the leave of the Court or the consent of the plaintiffs and those producing the documents. In such circumstances, and bearing in mind how the copy documents were originally obtained and later used, it is reasonable for the plaintiffs to seek injunctive relief.

b) The plaintiffs were correct in their contention that it was incumbent upon the Court to protect its processes and deter future breaches of undertakings and obligations. Persons served with subpoenas to produce documents to the Court must be confident that the documents they produce will only be used for the purpose of the particular Court proceedings and will not be used by the person issuing the subpoena or his or her agents for some other purpose, for example, mounting a collateral attack.

56 At 530 in Witham v Holloway, in the judgment of four Justices, the view was expressed that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings. I take the word “undertaking” to include both an express undertaking, and an “implied undertaking”. I use the phrase “implied undertaking” in the sense that it is an obligation imposed by law and that there is nothing voluntary about it: Hearne v Street at [106], [107] and [108].

57 At 531 in Witham v Holloway the joint judgment states:

“The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process.”

58 Reference was made to the judgment of Windeyer J in Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 498 – 499 in which he described proceedings for civil contempt as being “used primarily to compel obedience rather than to punish disobedience”. There is a reference to Windeyer J’s description of the nature of the processes used to enforce orders as “primarily coercive or remedial rather than punitive” and the observation that the same distinction is maintained in the United States.

59 When the Summons was filed on 11 June 2008 and the Amended Summons was filed on 5 August 2008 the application of the plaintiffs was substantially punitive. The application sought imprisonment of each of the four defendants and further or alternatively an order for a payment of a fine and further or alternatively sequestration of the estate of each of the defendants and further or alternatively that each defendant be punished.

60 The plaintiffs have now modified the relief they seek, as earlier mentioned, and state that they rely on a civil contempt based on breach of an express undertaking and “implied undertakings”.

61 In my opinion the plaintiffs are entitled to modify the relief they seek. The modifications intimated at the start of the hearing are significant because the proceedings became proceedings for civil contempt and not proceedings for criminal contempt. It was the plaintiffs’ contention that the contempts in question were civil contempts both because of the nature of the contempt itself (a breach of an undertaking to a Court) and because the remedies sought were coercive and remedial, rather than punitive. The plaintiffs are seeking injunctions. However, the plaintiffs are still seeking orders involving “payment of a fine which reflects the seriousness of the contempt, the lack of contrition of the defendants and the desirability of a deterrent.”

62 I proceed on the basis that what is now being alleged is a civil contempt. There is no ongoing contempt. In view of the Guardianship Tribunal’s order of 10 July 2008 and the processes leading to that order, it is most unlikely that the Tribunal will revive the matter of its own accord.

63 Before dealing with the cases against each defendant, I should indicate that the evidence satisfied me beyond reasonable doubt that the four defendants were acting in concert. I formed this satisfaction having regard to the following matters in combination:

b) the three children supporting the mother in her FPA application – Marco prepared a spreadsheet for use in those proceedings and Janel and Nicole combined to obtain the copies of the documents produced under compulsory court process;

c) Janice, Janel and Nicole lived at 21/26 Admiralty Drive;

d) the compelling time sequence of obtaining copies of the documents produced on subpoena early in the afternoon of 6 May 2008 and the online application late on 6 May 2008;

e) the documents sent about 16:01 hours on 7 May 2008 in the name of Marco Mangano from [email protected] and that this required knowledge of the user name of Marco and of the password to his Optus web mail;

f) the principal place of business of WDW Constructions Pty Limited was shown as 21/26 Admiralty Drive Breakfast Point; and

64 Accordingly, I have taken the view that the actions of one defendant are admissible against the other. See R v Masters (1992) 26 NSWLR 450 at 460G. Masters was a criminal case as to conspiracy. At 463 the Court acknowledged that it has been said that the principle behind the rule was one of authority or agency – Ahern v The Queen (1988) 165 CLR 87 at 95.

65 Of course most of the matters listed above have been affirmatively established. This leads to the conclusion that they were acting on behalf of each other.

66 Criminal conspiracy is a special case and care must be exercised in referring to principles applicable in that area. In the present civil proceedings reference can be made to principles of authority to act and principles of agency when dealing with the various acts of the members of the family, consisting of the four defendants.

67 There is no direct evidence from either the plaintiffs or the defendants save the statement of Nicole (Exhibit H).

68 I have to consider the evidence against each defendant in relation to each charge preferred against that defendant.

Case against Nicole (fourth defendant)

69 As against Nicole the plaintiffs relied on both the alleged express undertaking as contained in the standard uplift form and her “implied undertaking” or obligation imposed by law. On 5 and 6 May 2008 she prevailed upon the junior employee/ messenger at the legal firm at which she worked (not being the solicitors for Janice) to have the documents produced on subpoena in her mother’s FPA application copied and delivered to her.

70 As mentioned, she completed the top part of the standard “Application to Uplift Form” inserting the number of the proceedings and the name of the plaintiff and that of the first defendant. She must have told the junior clerk/ messenger of the documents to be copied. He inserted the relevant packet numbers. He signed the form which contained the undertakings earlier quoted and other details earlier identified as being in his handwriting. Once she had inserted the particulars of the proceedings and the date access was granted, he took over completion of the form and delivered it to the copying company. She did not know the process of obtaining copies of document produced on subpoena. I would not have expected a junior clerical employee who worked as an assistant to a mortgage solicitor to know the process, the undertakings required by the standard form nor the obligations imposed by law. Completing the details at the top of the form, even when she wanted copies of the documents made, does not amount to adopting the undertakings in the form. It was not the equivalent of signing the form. I am not satisfied beyond reasonable doubt that she was aware of the terms of the undertaking contained in the standard form. I am not satisfied beyond reasonable doubt that Nicole (also known as Nicole or Nicola Tremaine) gave express undertakings or that she authorised the junior employee/ messenger to give them on her behalf.

71 However, she was aware that she had set in train a process by which she was to gain copies of documents produced on subpoena to the Court in her mother’s FPA application and that access had been granted by the Court to those documents. In the afternoon of 6 May 2008 she received copies of the documents. Nicole knew that the origins of the material she received lay in the documents produced to the Court in legal proceedings (her mother’s FPA application). She became subject to the obligation which the law imposes commonly described as an “implied undertaking”.

72 In Hearne v Street at [95] and following the three Justices discussed the extent of the “implied undertaking” and held it was an obligation which arises by operation of law. At 109 the Justices remarked:

“The primary person bound by the relevant obligation is the litigant who receives the documents or information from the other side pursuant to the litigious processes. The implied undertaking also binds others to whom the documents and information are given.”

73 At [110] – [111] the three Justices stated that if the principle that the implied undertaking is binding upon anyone into whose hands the discovered documents come if he or she knows that they were obtained by way of discovery did not exist, the “implied undertaking” or obligation on the litigant would be of little value because it could be evaded easily. The same principle applies to documents produced to the Court on subpoena. It is sufficient if the knowledge of the origins of the material in legal proceedings is established.

74 At [118] the three Justices said:

“The appellants submitted that there is no reason in principle why the degree of knowledge necessary to sustain a prosecution of a third party for contempt of an undertaking in connection with the production of documents to the court should depend on whether the undertaking was given expressly or by implication. The relevant reason of principle is that while liability in relation to an express undertaking relates to the giving of that undertaking at a particular time and in particular precise terms, varying from case to case, which third parties have very limited means of finding out about, liability in relation to an ‘implied undertaking’ arises in uniform terms in all cases where documents are produced to the court. A key objective factual integer, knowledge of which is necessary to prove liability, is in one case the terms of the express undertaking, in the other the events giving rise to the ‘implied undertaking’ or legal obligation.”

75 There is no direct evidence of what Nicole did with the copy documents after receiving them. However, on 7 May 2008 about 4.01 pm copies of such documents were sent by electronic transmission on the face of the email from Marco’s email address to the Guardianship Tribunal. There was evidence that that email was sent from [email protected] using Marco’s web mail.

76 Nicole faces five charges of contempt (as amended) in the alternative:

1. between about 6 and 14 May 2008, knowing that certain documents had been obtained under compulsory court process in proceedings 5491/2006, she used those documents for a collateral purpose, namely, she provided them to Marco Mangano to be used to commence and maintain proceedings in the Guardianship Tribunal in relation to Mary Alafaci;

2. in the alternative, between about 6 and 14 May 2008, knowing that certain documents had been obtained under compulsory court process in the Supreme Court proceedings, she used those documents for a purpose not directly connected with the Supreme Court proceedings, namely, she provided them to Marco Mangano to be used to commence and maintain the Guardianship Tribunal Proceedings;

(Before amendment the words “or allowed them to be provided” appeared after the words “she provided them” in charges 1 and 2.)

3. in the alternative, between about 6 and 14 May 2008, in breach of the undertakings given to the Supreme Court of NSW not to divulge, communicate or refer to any person any information obtained from inspection of any document produced in answer to subpoena issued in the Supreme Court proceedings, she divulged the supporting documents to Marco Mangano;

4. in the alternative, between about 6 and 14 May 2008, in breach of the undertakings, she communicated the supporting documents to Marco Mangano;

5. in the alternative, between about 6 and 14 May 2008, in breach of the undertakings, she referred the supporting documents to Marco Mangano.

77 In their particulars the plaintiffs relied upon the close relationship of each of the four defendants, and the assistance of the daughters to their mother in her FPA claim, the obtaining of the copy documents on the afternoon of 6 May 2008 and the lodgement of the application to the Guardianship Tribunal late on 6 May 2008 by Marco Mangano by email and the correspondence of the documents forwarded by email to the Tribunal on 7 May 2008 about 4.01 pm with those produced to the Court by Mr Grose on his own behalf and that of Pamaja Pty Limited. The evidence supports that summary.

78 The plaintiffs do not rely on any express evidence that Nicole gave Marco the documents but submitted that by implication this was the conclusion to be drawn from the following evidence:

a) The copy documents produced on subpoena were received by Nicole on the afternoon of 6 May 2008 and as a result of her concerted efforts to obtain them.

b) The online application form to the Guardianship Tribunal was completed and submitted to that Tribunal at 22:37 on 6 May 2008 from the IP address 58.108.167.36, the IP address of the home computer of Mr Marco Mangano.

c) The copy application form submitted to the Tribunal contains his address, his daytime, after hours and mobile telephone numbers , his fax number and his email address.

See also the words earlier quoted under the heading “Immediate Threat”.

79 Nicole must have either provided the copy documents to Marco Mangano or handed them to a person who provided them to Marco Mangano. Exactly what happened does not appear. In the last mentioned event Nicole must have been aware that the documents were to be provided to Marco. All four defendants were interested in the copy documents obtained. While there is no direct evidence that Nicole knew that Marco was going to use them to make an application to the Guardianship Tribunal, that should be inferred from the circumstances.

80 Nicole and Janel were working together to obtain copies of the documents. It was part of their support of their mother in her FPA application.

81 About 4:01 pm on 7 May 2008 copies of the documents were sent by email to the Tribunal. According to the file note of 11 June 2008 of Ms Sue Young of the Guardianship Tribunal, Mr Marco Mangano told her that because he had sent copies of documents subpoenaed for another court he was being taken to court by his grandmother and uncle. That indicates that Marco Mangano had personally sent the documents to the Tribunal or arranged for them to be sent or adopted the documents being sent. I would not take a literal approach to a file note but have regard to the substance of what is stated.

82 The plaintiffs also relied on the company search of 24 April 2009 of WDW Constructions Pty Ltd. That shows that from 12 May 2006 to 27 June 2007 Nicole was a director of and the secretary of WDW Constructions Pty Ltd. Her address was shown as 21/26 Admiralty Drive, Breakfast Point. Since 27 June 2007 the company has been under the control of another person (Stewart Charmaine of Stafford, Queensland). The company’s principal place of business as from 13 February 2007 is shown as 21/26 Admiralty Drive, Breakfast Point.

83 Nicole submitted that there was no evidence showing that she was involved in sending any material to the Guardianship Tribunal and that the most that appears is that she lived at the address which is the principal place of business of the company of which she was previously a director. It should be inferred that the internet site from which material was sent about 16:01 hours on 7 May 2008 was at the residence at 21/26 Admiralty Drive. This is where Nicole lived with her mother and Janel. It should be inferred that Nicole was involved in doing so acting together with her mother Janice and her sister Janel. Nicole had obtained the copy documents.

84 I return to the words of the first charge against Nicole. I am satisfied beyond reasonable doubt that she knew that the documents produced to the Court under subpoena, and copied (with the copies delivered to Nicole) were obtained under compulsory court process in proceedings number 5491 of 2006 in this Court and that she used those documents. The charge is that she used those documents for a collateral purpose, namely, she provided them to Marco Mangano to be used to commence and maintain proceedings in the Guardianship Tribunal in relation to Mary Alafaci.

85 In the absence of an order to the contrary, the procedure for photocopy access is governed by Practice Note Supreme Court Gen 3, especially paragraphs 7 and 8. The firm employing Nicole was not authorised to appoint an approved copier as that firm was not representing the plaintiff. The copying was relevantly unauthorised. While there have been significant departures from proper practice, I reiterate that I am not satisfied beyond reasonable doubt that Nicole was aware of, or should be taken to be aware of, the terms of the undertakings contained in the standard uplift form or authorised the junior clerk/ messenger to give them on her behalf.

86 The plaintiffs relied upon the “implied undertakings” or the obligations imposed by law upon third parties who gain access to documents produced under compulsory court process. Nicole is in breach of her implied obligation not to make an improper use of the documents (Hearne v Street at [105]). Making collateral use of documents produced under compulsory court process is an improper use (Hearne v Street at [106]). The legal obligation binds third parties (Hearne v Street at [109]). Nicole, a third party, was subject to the “implied undertaking” or legal obligation.

87 The primary reason for Nicole obtaining and having the copy documents was to assist her mother in her FPA application. The evidence justifies the conclusion beyond reasonable doubt that Nicole provided the copy documents either personally or by her mother or her sister to Marco Mangano to commence and maintain proceedings in the Guardianship Tribunal in relation to Mary Alafaci. Copies of the documents obtained by Nicole under compulsory court process were lodged with the Tribunal about 16:01 hours on 7 May 2008 from a site located at the residence of Janice, Janel and Nicole, albeit in the name of Marco Mangano.

88 Nicole must be adjudged guilty of contempt as alleged in the first charge against her. All the constituent elements of the first charge have been proved against her beyond reasonable doubt.

89 As the second, third, fourth and fifth charges against Nicole are alleged in the alternative, it is unnecessary to deal with them.

Case against Janel (second defendant)

90 As against Janel Mangano, the plaintiffs relied on the following:

a) Janel and Nicole lived at the same address, namely, Unit 21, 26 Admiralty Drive, Breakfast Point. Their mother Janice also lived there.

b) The close family relationship between the four defendants and the three children supporting the mother in her FPA application.

c) In her affidavit of 17 March 2009 in her mother’s FPA application Janel said she had been and was still employed as a law clerk for 36 hours per week. She described herself as a student/ law clerk. She said that she continued to support her mother and father.

I do not accept that as a student/ law clerk it should be inferred that she is familiar with the practice relating to the express undertakings to be given when documents, produced on subpoena to which access is granted, are uplifted and copied. Janel was not aware of the terms of the express undertaking nor should she be taken to be aware of such terms. She would be subject to the “implied undertakings”.

d) Janel was aware that the documents had been produced to the Court on subpoena. She and Nicole cooperated to obtain access to the documents and copies of them. Janel left it to Nicole to attend to the matter.

[email protected]

(In answer to the question, “What is their attitude to the application?” the answer given is, “Don’t know”.)

[email protected]

h) The email purporting to be sent in the name of Marco Mangano on 7 May 2008 about 16:01 hours to the Guardianship Tribunal, including the annexures, was sent through Mr Marco Mangano’s Optus webmail account, and, for someone other than Marco Mangano to access that account, that person would need to know his user name and password.

i) Mr Urquhart’s evidence that, if you accepted the statement in Telstra’s documents that the IP address 121.216.23.67 was allocated to [email protected] (account holder Joseph Mangano), the email mentioned was sent from that IP address at the time in question.

[email protected]

91 It has been established that the email sent about 16:01 hours on 7 May 2008 and the attachments were sent in Marco’s name via his web mail from [email protected] and that this required knowledge of the user name of Marco and of the password to his Optus web mail. The principal place of business of WDW Constructions Pty Limted was at 21/26 Admiralty Drive Breakfast Point.

92 One question in the circumstances of the present case is whether Janel was involved in sending the email about 16:01 hours on 7 May 2008. She submitted that there was no evidence of her connection with, or involvement in, the transmission of (copies of) the documents produced on subpoena apart from her residence at a location where the internet site is situated and from which the material appears to have been sent. That understates the strength of the evidence against Janel.

93 The evidence satisfies me beyond reasonable doubt that Janel was involved in sending to the Guardianship Tribunal the email and the attachments about 16:01 hours on 7 May 2008 and the use of Marco’s web mail to do so. She was acting in conjunction with her mother, her sister and her brother.

94 I turn now to the five charges against Janel. These charges are in substantially the same terms as those against Nicole. There is some variation in the particulars provided.

95 As to the first charge against Janel, I am satisfied beyond reasonable doubt that between 6 and 14 May 2008 she knew that certain documents (those produced to the Court by Mr Grose on his own behalf and on behalf of Pamaja Pty Limited) had been obtained under compulsory court process in proceedings 5491 of 2006. I am satisfied beyond reasonable doubt that Janel used those documents (or copies of them) for a collateral purpose, namely, that Janel was involved in providing them to Marco Mangano to be used to commence and maintain proceedings in the Guardianship Tribunal in relation to Mary Alafaci.

96 I am satisfied beyond reasonable doubt that Janel acted in breach of her “implied undertaking”. I am further satisfied beyond reasonable doubt that she participated in using the documents (or copy documents) produced on subpoena for a collateral purpose. I am satisfied that all the constituent elements of the first charge against Janel have been proved beyond reasonable doubt.

97 Janel must be adjudged guilty of contempt as alleged in the first charge against her.

98 As the second, third, fourth and fifth charges against Janel are alleged in the alternative, it is unnecessary to deal with them.

Case against Marco Mangano

99 The plaintiffs relied upon the following evidence as against Marco:

[email protected]

b) When this application was being prepared Marco had available to him copies of the documents produced on subpoena or an outline of their contents.

c) When Mr Urquhart, a computer forensics technician, attended Mr Marco Mangano’s home on 29 October 2008, he logged onto Mr Mangano’s internet router and identified the live IP address to be 58:108:167:36.

d) Making his user name and password to his Optus web mail account available to Janice, Janel and Nicole to enable them to send, in the name of Marco Mangano, copies of the documents produced to the court on subpoena in proceedings 5491 of 2006 to the Guardianship Tribunal about 16:01 hours on 7 May 2008. (This is based on the evidence of Mr Urquhart and the documentary evidence.)

“Received: from CPE-121-216-23-67.nsw.bigpond.net.au ([121.216.23.67]) by
webmail07.syd.optusnet.com.au with http
([email protected]);
Wed, 07 May 2008 16:00:44 +1000
From: [email protected]
To: [email protected]
Date: Wed, 07 May 2008 16:00:44 +1000
Subject: Mary Alafaci – Information Officer - Evidence
Content-Type: multipart/mixed; boundary=’------------_1210140044-2643-0’

This is a multi-part message in MIME format …

------------=_1210140044-2643-0
Content-Type: text/plain
Content-Disposition: inline
Content-Transfer-Encoding: binary

Attention: Sue Young

Please find attached evidence in relation to financial abuse of Mary Alafaci. Please contact me on 0410 43 00 58 to discuss.

Kind regards

(ii) Mr Urquhart thought this email originated from someone using a computer connected to a Telstra Internet (Bigpond) service with an IP address of 121.216.23.67 and using an Optusnet web mail facility to send the email and that it was very unlikely that the message originated from Mr Marco Mangano’s home or work computers.

(iii) The user name and password of the Optusnet web mail facility of Mr Marco Mangano must have been made available to the sender of the email.

(iv) The mobile telephone number contained in the email is the mobile telephone number supplied by Marco Mangano on the application.

f) The email and attachments sent about 16:01 hours on 7 May 2008 to the Guardianship Tribunal contain references to “Pamaja”. See the Tribunal’s electronic records.

g) The file note on 12 May 2008 of Ms Sue Young, Team Leader at the Guardianship Tribunal records a conversation which took place that morning, in which, in response to the question how did he get the records he sent with the application, he replied that the “accounts had been subpoenaed for another matter to do with his mother – Family Provision Act”. She also records “There is a spreadsheet that had to be supplied to the court showing if the money was spent for Paul, rather than Mrs A. He’ll email a copy of that.”

h) On 12 May 2008 Mr Marco Mangano sent an email to the Guardianship Tribunal which reads, inter alia, “Attached is the spreadsheet as discussed”. The spreadsheet received by the Guardianship Tribunal extends over some six pages and covers the period from 13 May 2006 to March 2008 and shows alleged payments by Mary Alafaci on behalf of her son, Paul Alafaci, of $66,558.

i) On 1 June 2008 at 8.37 pm Mr Marco Mangano sent an email to the Guardianship Tribunal stated to be from “Callista Podiatry [[email protected]] stating “I wanted to let you know that the residence at 43 Chamberlain Ave Rose Bay is on the market”.

100 In his affidavit of 31 October 2008, Mr Noel Atfield has stated that on 7 May 2008 Marco Mangano arrived at his home at Tregear at approximately 3.45 pm and left at approximately 4.30 pm and during the whole of that period Marco Mangano provided podiatry services to Mr or Mrs Atfield. Both of them were patients or clients. Mr and Mrs Atfield do not have a computer in their home. Mr Atfield was not cross examined.

101 This affidavit establishes that Marco Mangano did not personally send the email to the Guardianship Tribunal about 16:01 hours on 7 May 2008 and the attachments.

102 However, it does not establish that he did not arrange for someone else to do so, or did not facilitate their doing so, or did not adopt the sending of the documents.

103 The two statements made by Mr Mangano and recorded by Ms Young on 12 May 2008 and 11 June 2008 respectively are important as he explained where he obtained the records supporting the application. They were copies of documents subpoenaed for another matter – his mother’s FPA application. The statements recorded by Ms Young as being made by Mr Marco Mangano appear to be factually correct. There is little, or no, room for the suggestion that she misunderstood or made a mistake in what she recorded.

104 Marco Mangano also relied on the affidavit of MG Streeter of 27 May 2009 and on the documents produced by the Guardianship Tribunal in response to a subpoena served on the Tribunal by Streeter Law. The purpose of this material was to point to an alternative source that could possibly have been relied on by Marco Mangano. There was one letter from Mr MI Grose of 28 April 2006 which contained information relating to the account of Pamaja Pty Ltd with Citibank for the period 22 August 2005 to 31 March 2006. The other letter of that date contained information relating to a joint account in the names of the late Mr Alafaci and his wife for the period 4 August 2005 to 4 March 2006. Other available materials related to matters ending on 12 July 2007 and principally related to matters at an earlier date.

105 The time sequence is compelling. Copies of the documents are obtained on 6 May 2008 and, later that day, an online application is made to the Guardianship Tribunal. It is described as an urgent matter. The particulars supplied, “Son … has now obtained credit cards and store credit cards … which my grandmother is paying for …” suggest access to the records produced on subpoena. See also the spread sheet sent to the Tribunal on 12 May 2008.

106 There is no substance in the contention that either the initiating application sent on 6 May 2008 or subsequent submissions were possibly not based on the copy documents obtained on 6 May 2008.

107 I reject the submission that there is no evidence that Marco Mangano had access to the copy documents on 6 May 2008 or on 7 May 2008. I also reject the submission that there is no evidence suggesting that Marco Mangano was in any way aware of the events giving rise to the implied undertaking or legal obligation as at 6 May 2008. The evidence as a whole and the statements made by Mr Marco Mangano to Ms S Young and recorded by her indicate that he was aware of the source of the copy documents and was using and relying upon them in the Guardianship proceedings.

108 I am not satisfied beyond reasonable doubt that Marco was aware of the express undertaking contained in the standard Supreme Court uplift form, nor that he should be taken to be aware of such terms. He is bound by his legal obligation.

109 As to the first charge against Marco, I am satisfied beyond reasonable doubt that from 6 to 14 May 2008 Marco, knowing that certain documents (those produced under subpoena) had been obtained under compulsory court process in proceedings 5491 of 2006, used those documents for a collateral purpose, namely to commence and maintain proceedings in the Guardianship Tribunal to obtain a financial management order in relation to Mrs Mary Alafaci. In my opinion all the elements of the contempt charged have been proved beyond reasonable doubt. He breached the legal obligation imposed upon him. I have noted that the statements recorded as made by Marco to Ms Young were made on 12 May 2008 and 11 June 2008 and that these were made after 6 and 7 May 2008. There are two observations to be made. First, Marco told Ms Young of the Guardianship Tribunal that the “accounts had been subpoenae’d for another matter to do with his mother – Family Provisions Act”. Secondly, there is the compelling time sequence. I have not accepted that what occurred was merely a coincidence.

110 As the second, third, fourth and fifth charges were alternatives it is unnecessary to deal with them.

111 It was submitted by Marco that, even if the plaintiffs’ case was held to be proved against him, that case amounted to a technical contempt and the Court would, rather than putting the parties to the additional cost of coming back for penalty proceedings, provide no greater relief to the plaintiffs than was obtained in Ainsworth v Hanrahan (1991) 25 NSWLR 155, that is, a bare declaration and that the proceedings be otherwise dismissed with no order as to costs. In my opinion that would not be appropriate in a case where the copy documents obtained in the FPA proceedings were used to support an application to the Guardianship Tribunal.

112 As Marco advised the Tribunal, not later than 11 June 2008 and prior to the institution of these proceedings but after he knew that these proceedings were proposed, that he desired to withdraw his application for a financial management order in relation to Mary Alafaci and the Tribunal on 10 July 2008 ordered that such application be withdrawn, I have had reservations about granting injunctive relief. There is little likelihood of the copy documents being used to institute further proceedings.

113 However, there is no evidence as to what has become of the copy documents. There was no evidence that they had been destroyed and no acceptable evidence as to their future non-use.

114 I will deal with some questions of relief subsequently. I will not deal with matters relating to penalty.

Case against Janice

115 Janice, as the remaining plaintiff in the FPA proceedings 5491 of 2006, was the person to whom the Court granted access to the documents produced on subpoena. She (or her solicitor) was the person (other than the defendants in the FPA proceedings) who could arrange for the documents to be uplifted and copied by an approved copier. The standard uplift form envisages that the solicitor for the plaintiff or a defendant will arrange for the documents to be copied and that the stipulated undertakings will be given on behalf of the party by his or her solicitor.

116 The plaintiffs relied on the following:

a) Janice, as the remaining plaintiff, was the only person to have an interest and who had the authority and power to inspect the documents and uplift (and copy) them.

b) In the absence of any evidence from the defendants, the Court can infer that Janice authorised Janel to uplift (and copy) those documents.

c) Janel arranged for the task to be performed by Nicole, who arranged for a co-worker to do that for her, notwithstanding that she, the co-worker and their firm had no interest in the proceedings.

d) Nicole filled in the top part of the standard Supreme Court form (names of parties and the number of the proceedings) and supplied details which the co-worker inserted. Nicole inserted in the form the date access was granted. The details inserted by Nicole were correct.

e) Janice, Janel and Nicole lived at the same address. The copy documents were sent to the Tribunal from that address in the name of Marco.

117 There is no direct evidence that Janice received the copy documents. There is no evidence that she was aware of the steps that Nicole took to obtain copies of the documents, or that Nicole had given any undertakings to the Court, if that be the case, or the terms of any such undertakings. I am not satisfied beyond reasonable doubt that Janice gave any express undertakings or that she should be taken to have done so. She was not aware of the terms of any express undertaking. She was subject to the obligation not to use the documents for a collateral purpose.

118 There is no direct evidence that Janice was involved in providing the copy documents to Marco. However, it should be inferred that she had access to them. They were obtained by her daughters in the FPA proceedings Janice had instituted to assist in the conduct of Janice’s case. Janice participated in providing the copy documents to Marco and the Tribunal in conjunction with her daughters. This assisted Marco to commence and maintain the Guardianship Tribunal proceedings. There is some evidence (see the note of Ms S Young of 12 May 2008) that Marco prepared a spreadsheet for use in his mother’s FPA application.

119 I would infer that Janice was aware that documents had been produced to the Court by Mr Grose on his own behalf and that of Pamaja Pty Limited, that she had been granted access to them and that it was desired to obtain access to them, copy them and consider them, and that she left it to her solicitor and Janel to arrange to obtain copies of such documents.

120 As to the first charge, there is proof beyond reasonable doubt that between 6 and 14 May 2008 Janice knew that the documents produced under subpoena by Mr Grose and Pamaja Pty Limited to the Court had been obtained under compulsory court process in proceedings in this Court number 5491 or 2006. The evidence also proves beyond reasonable doubt that she used such documents for a collateral purpose, namely, she participated in providing them to Marco Mangano to be used to commence and maintain proceedings in the Guardianship Tribunal in relation to Mary Alafaci. Janice should be adjudged guilty of contempt.

121 It is unnecessary to deal with the second, third, fourth and fifth charges as they were in the alternative.

Generally

122 It was submitted by the second, third and fourth defendants that any contempt which had occurred, and it was not conceded that any had, had been purged or remedied by the withdrawal by Marco of his application for a financial management order. There would no future wrongful use of the documents produced on subpoena.

123 The second, third and fourth defendants also submitted that if a contempt was found it was a technical one. They submitted that no failure of public policy had been disclosed, no correction of the Court’s processes (or of the Tribunal) had been required and no loss had been occasioned to society. There was agreement with the submissions of the first defendant based upon Ainsworth v Hanrahan. It was pointed out that the first plaintiff had not been present at Court at all and that the proceedings appeared to be driven by the second plaintiff. While those statements appeared to be correct, there was no challenge to the retainer of the solicitor or counsel for the plaintiffs. I must deal with the proceedings on the evidence adduced.

124 As earlier mentioned, the plaintiffs relied heavily on Jones v Dunkel (1959) 101 CLR 298 and the inferences that could be drawn. Jones v Dunkel was a civil case in which facts had to be proved upon the balance of probabilities. There was a collision between two trucks and the evidence as to the cause of the collision was meagre. There were two defendants, namely the owner of the truck and the driver. The defendant-driver was not called to give evidence. The trial Judge had correctly directed the jury that the evidence given might be more readily accepted because it had been left uncontradicted and that the omission to call the driver as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched. At 308 Kitto J stated:

“But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if [the driver] had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which … I consider was open on the plaintiff's evidence.”

125 At 312 Menzies J said:

“… where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.”

126 At 321 Windeyer J pointed out:

“Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case.”

127 There is helpful discussion of the rule in Jones v Dunkel in Cross on Evidence, 7^th Aust. Edition, JD Heydon at paragraph 1215, pp 39 – 45.

128 In the present case the evidence adduced by the plaintiffs against each of the second, third and fourth defendants gives rise to a reasonable and just conclusion against each defendant in the absence of explanation or contradiction. Following the words of Abbott CJ in R v Burdett cited by Windeyer J at 321, enough has been proved to warrant a reasonable and just conclusion against each defendant on Charge 1 of the Amended Statements of Charge filed in Court on 28 April 2009.

129 None of the defendants called any one of their number rebutting or explaining the evidence relied upon by the plaintiffs and from which the Court was asked to draw inferences. The conclusion is fairly open that the evidence of each defendant would not have assisted that defendant or any of the other defendants.

130 Charges 3 to 5 appear to be based on the terms of the express undertaking. I have earlier held that each of the defendants was not aware of the terms of the express undertaking contained in the standard uplift form and should not be taken to have been aware of such terms or to have given the undertakings stipulated.

131 Nothing the Court has done prevents further proceedings in the Guardianship Tribunal. However, it is not permissible to use in any such proceedings documents produced on subpoena to this Court in proceedings Equity 5491 of 2006 without the leave of this Court or the written consents mentioned.

Relief

132 I make the following order against each defendant:

sub nom

133 I make the following declaration against each defendant:

134 I stand over the further hearing as to penalty as against each defendant and the question of costs on a day to be appointed.

**********

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Citations

Alafaci v Mangano [2009] NSWSC 1131

Most Recent Citation

Hastwell v Kott Gunning (No 3) [2019] FCA 1641

Cases Citing This Decision

1

Hastwell v Kott Gunning (No 3) [2019] FCA 1641

Cases Cited

9

Statutory Material Cited

4

Witham v Holloway [1995] HCA 3

Hearne v Street [2008] HCA 36

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)