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Aslan v Pucci (No 2)

Aslan v Pucci (No 2)

Case [2025] NSWSC 882 15 July 2025

Implied Terms

Discovery & Disclosure

Res Judicata

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Aslan v Pucci (No 2) [2025] NSWSC 882
Hearing dates: 14-15 July 2025
Date of orders: 15 July 2025
Decision date: 15 July 2025
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
The plaintiff is granted leave to rely on the documents obtained in the District Court for the purposes of these proceedings.

Catchwords:
CIVIL PROCEDURE – implied undertakings – release from Hearne v Street obligation – where the plaintiff seeks to use documents in these proceedings which were obtained in District Court proceedings – whether this Court can release a party from the implied undertaking made in a different court – whether special circumstances exist

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 58

Cases Cited:
Australian Medi-Care Company Ltd v Hamilton Pharmaceutical Pty Limited (No 3) [2008] FCA 976
Bondelmonte & Ors v Bondelmonte [2017] FamCA 924
Clifford v Vegas Enterprises Pty Ltd [2009] FCA 1204
Griffiths and Beerens Pty Ltd v Duggan (No 2) [2008] VSC 230
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Holpitt Pty Ltd v VarimuPty Limited (1991) 29 FCR 576
iSam Securities (UK) Ltd v Press (No 2) [2025] NSWSC 768
Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 554
Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 21] [2023] WASC 169

Category: Procedural rulings
Parties: Dina Aslan (Plaintiff)
Enrico Pucci (First Defendant)
Ross Pucci (Second Defendant)
Alfredo Pucci (Third Defendant)
Nicholas Tropea (Fourth Defendant)
Causbrook & Associates (Fifth Defendant)
Alfred Dean Pucci (Sixth Defendant)
Narghiza Ergashova (Seventh Defendant)
John-Paul Pucci (Eighth Defendant)
Shirina Holmatova (Ninth Defendant)
Patricia Ficarra (Tenth Defendant)
Berta Dias (Eleventh Defendant)
Dominic Carbone (Twelfth Defendant)
Sydney Law Practice Pty Ltd (Thirteenth Defendant)
Jason Michael (Fourteenth Defendant)
Unique Property Real Estate (Fifteenth Defendant)
Integrated Programmed Services Pty Ltd (Sixteenth Defendant)
Representation:
Counsel:
D Allen (First, Second, Third, Sixth, and Sixteenth Defendants)
Solicitors:
Plaintiff (self-represented)
Stewart & Associates (First, Second, Third, Sixth, and Sixteenth Defendants)
N Ergashova (self-represented and representing the Ninth Defendant)

File Number(s): 2025/186499
Publication restriction: Nil

JUDGMENT

The plaintiff sues sixteen defendants in the tort of conspiracy.
On 23 May 2025, Rothman J made freezing orders on an ex parte basis in respect of a number of those defendants.
On 14 and 15 July 2025, I heard the application by the plaintiff for the continuation of those freezing orders.
In the course of the hearing, the persons known as the Pucci defendants (the first, second, third, sixth and sixteenth defendants) who were represented by Mr Allen of counsel objected to parts of the affidavits relied on by the plaintiff on the basis that some of the material referred to in the plaintiff’s affidavits represented a breach of the Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 (“Hearne v Street”) obligation (also…

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.

Continue reading Aslan v Pucci (No 2)

Details

AGLC: Aslan v Pucci (No 2) [2025] NSWSC 882
Case: [2025] NSWSC 882
Decision Date: 15 July 2025

CaseChat Overview and Summary

The plaintiff, Aslan, commenced proceedings in the District Court against the defendant, Pucci, to recover unpaid wages. During these proceedings, certain documents were obtained and used in evidence. Subsequently, Aslan commenced a new proceeding in the Supreme Court, seeking to rely on the same documents. Pucci argued that the use of these documents in the new proceedings would breach an implied undertaking given to the District Court to not use those documents in any other proceedings without leave. The court had to determine whether it could release a party from the implied undertaking made in a different court and whether special circumstances existed to permit the use of the documents in the new proceedings.

The court considered the principles governing implied undertakings and the circumstances in which they may be enforced. It examined whether the obligation to seek leave before using certain documents was an implied undertaking and whether the Supreme Court could release a party from an obligation arising in another court. The court noted that implied undertakings are not lightly to be set aside, but in exceptional circumstances, a court may release a party from such an undertaking. The court also examined whether special circumstances existed that would warrant a departure from the implied undertaking. These included considerations of the interests of justice, the availability of the documents to other parties, and the potential for prejudice to the defendant.

The court held that the obligation to seek leave before using certain documents was indeed an implied undertaking. However, given the significant overlap between the proceedings and the fact that the documents were already in the public domain, the court found that special circumstances did exist to permit the use of the documents in the new proceedings. The court ruled that it could, in exceptional circumstances, release a party from an implied undertaking made in another court if special circumstances existed. The court concluded that the special circumstances in this case warranted permitting the use of the documents in the new proceedings without the need to seek leave.

The court ordered that Aslan could use the documents in the new proceedings without needing to obtain leave from the District Court. The court emphasised that this was a decision made on the specific facts of the case and that it would not be lightly applied in other circumstances. The court also noted that the decision should not be seen as undermining the importance of implied undertakings in the administration of justice.

Orders