Cazk & Cazk

[2011] FamCA 784

FAMILY COURT OF AUSTRALIA

CAZK & CAZK AND ANOR [2011] FamCA 784

FAMILY LAW - Wife sought ex parte Anton Piller order - Application refused - Other ex parte order made in relation to certain documents

Anton Piller KB v Manufacturing Processes Ltd [1976] Ch 55

APPLICANT: Mr Cazk

FIRST RESPONDENT: Ms Cazk

SECOND RESPONDENT: D Legal

FILE NUMBER: BRC 5282 of 2010

DATE DELIVERED: 7 October 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 7 October 2011

REPRESENTATION (Ex Parte)

COUNSEL FOR THE APPLICANT: Mr Curran of Counsel

SOLICITOR FOR THE APPLICANT: Rees Law

Orders

IT IS ORDERED

1. The wife's application in a case filed today for an Anton Piller order in relation to the documents described in paragraph 3 of that application is dismissed.

2. This matter be listed before the Honourable Justice O'Reilly at 9.30 am on Thursday 13 October 2011 for a procedural hearing.

3. Prior to that date the husband by his solicitors produce to the wife's solicitors or their nominated agent in B Town for inspection and copying the originals and all copies in the husband's possession of the documents described in paragraphs 5 and 6 of his affidavit filed 2 August 2011.

4. The wife's costs of today are reserved.

AND IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to brief Counsel.

NOTATIONS

1. At the hearing on 13 October 2011 her Honour will hear submissions as to whether the matters presently listed for 7, 8 and 9 March 2012 should be brought forward to 12, 13 and 14 December 2011.

2. The husband's necessary compliance with this order will not be regarded for any purpose as conduct by him amounting to any waiver of privilege in respect of the documents referred to in order 3.

3. As to the content of those documents it is noted that the wife already is aware of the contents.

IT IS NOTED that publication of this judgment under the pseudonym Cazk & Cazk is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5282 of 2010

Mr Cazk

Applicant

And

Ms Cazk

First Respondent

And

D LEGAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The wife seeks an Anton Piller order in relation to the originals of and all copies of a letter 14 November 2001 from D Legal the husband’s then solicitors to the husband and other materials.  At issue is the question whether the husband waived privilege in relation to the content of that letter to him. The wife already has a copy of the letter. The waiver argument is yet to be heard.  

2. The wife has annexed to her affidavit filed 9 August 2010, annexure SNC7, a copy of a version of that letter showing (in photocopy) a hand notation on the front page by Ms E, solicitor with D Legal.  The wife says she found that document, of which SNC7 is a copy, at home.

3. The husband deposes in his affidavit filed 2 August 2011 that he does not believe that the version of the letter annexed to the wife’s affidavit was ever in his possession, because of Ms E's hand notation on it and that it came into the wife’s hands by another means.  In particular, the husband refers to the circumstance that the wife’s sister at one time was an employee of D Legal, inferring misconduct in relation to her position in that firm.   The wife’s sister, however, Ms C, in her affidavit filed 9 August 2011 deposes that her employment with that firm ceased before the letter came into existence. 

4. Nonetheless, the husband says in his affidavit that Ms E gave him a copy of the letter on D Legal letterhead marked “Duplicate”, signed on p5 by Ms E, but not by him.  Ms E also provided him, he says, with an unsigned undated copy of the binding financial agreement (central to the principal matters in these proceedings) marked “Copy”. He says he took those documents with him and placed them "directly in the safe at the Cazk Pty Ltd office in B Town", being his business, where he held numerous private and confidential documents.

5. He deposes that subsequently Ms E mailed him a further copy of the documents to the post office box address for Cazk Pty Ltd, and that he put these copies also in the safe with the first copies received. 

6. He deposes, importantly, that on the documents that he received from Ms E there was no hand notation on the front page as appears on the wife’s annexure SNC7.  Thus, he deposes that the wife’s annexure SNC7 is not a copy of any document he received from Ms E.

7. He says further that he has "never" kept copies of the letter at home, as alleged by the wife.

8. The wife, however, says that at no time has the husband deposed to having checked the Cazk Pty Ltd safe to confirm that he has in it the documents from D Legal which he says he received.

9. The making of an Anton Piller order is extreme relief and, as set out in the decision from which the order takes its name, Anton Piller KB v Manufacturing Processes Ltd [1976] Ch 55, the applicant must show 4 things:

   1.      An extremely strong prima facie case.

   2.      Serious potential or actual damage to the applicant if the relief is refused.

   3.      Clear evidence that the respondent has in his possession the incriminating documents or things.

   4.      There is a real possibility that the respondent may destroy such material before any application inter partes can be made.

10. The husband says that he is in possession of the documents described by him. It seems to me however that there is no evidence of any real possibility that he may destroy them, because he has raised their existence in his own case to demonstrate that the copy in the wife's possession was obtained by foul means, such that his privilege, vehemently claimed, can be maintained.

11. The wife’s real case thus is that unless an Anton Piller order is made the husband may be likely to replace the front page of the documents in his possession to show that the front page does not have the notation which appears on the wife’s annexure SNC7.

12. Without wishing to appear cynical, it appears to me that the husband is unlikely to have deposed what he has already deposed if he proposes, in the future, to alter the document/s, and it is more likely than not that if the husband had wanted to make alteration he would have done that before swearing the affidavit.  Moreover, however, it is plain that the letterhead the subject of the husband’s evidence will be original D Legal letterhead and not any photocopy, so that it will be plain, upon examination ultimately of the documents that, at some stage, the husband must produce, whether there has been any alternation on or replacement of the front page.  For example, it would be fairly obvious if all of the letter were original, with an original signature, but a photocopied front page.

13. The issue of whether the husband waived privilege in the manner deposed by the wife is, I acknowledge, a very serious issue for the wife, because based on the contents of the D Legal letter she wishes to have the binding financial agreement set aside for fraud and/or unconscionable conduct by the husband. I am not satisfied however that there would be serious potential or actual damage to the wife's case if an Anton Piller order is refused.

14. Mr Curran of Counsel, for the wife, submitted that whilst the wife has not sworn any opinion or belief that unless an Anton Piller order is made the husband may in the future alter the document/s, or that he might be inclined to do that, I should infer such. For the reasons mentioned, I will not draw that inference.

15. It appears to me that a case for an Anton Piller order, being extreme relief, which should only be granted in exceptional circumstances, and only if there is no alternative by way of ensuring that justice can be done, is not met.

16. I have considered whether at the hearing of the waiver argument Ms E may be asked to give evidence as to the hand notation on the copy in the wife’s possession, whether there was only one such document on which she made that notation, what she did with it and who had access to it.  That is a course open to the wife and the husband. It could not be the subject of any privilege claim.

17. Although the wife has not made out a case for the relief the wife she seeks, her application has made clear to me the importance of the husband, as soon as possible, producing the originals and copies in his possession for inspection and copying by the wife’s solicitors or their agents.

18. I will therefore refuse the wife’s application for an Anton Piller order, but list the matter before me at 9.30 am Thursday 13 October 2011 for a procedural hearing. I will order that prior to that date the husband, by his solicitors, produce to the wife’s solicitors, or their nominated agent in B Town, for inspection and copying, the originals and all copies in his possession of the documents described in paragraphs 5 and 6 of his affidavit filed 2 August 2011. I am conscious that I am making that order ex parte. The wife’s costs of today are reserved. Certify for counsel.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 7 October 2011.

Associate:     

Date:              12 October 2011