Cazk & Cazk

In the Family Court of Australia, the wife (applicant) sought an Anton Piller order against the husband (first respondent) and a second respondent, D Legal. The dispute centred on the potential waiver of privilege concerning a letter from D Legal to the husband, a copy of which the wife possessed and which contained a handwritten notation. The wife sought the order to secure original documents and copies held by the husband, alleging they might be altered or destroyed.

The court was required to determine whether the wife had established the necessary criteria for an Anton Piller order, specifically whether there was a strong prima facie case, serious potential damage to the applicant if the order was refused, clear evidence of the husband possessing the documents, and a real possibility of their destruction. The court also considered the husband's assertion that the wife's copy of the letter was not obtained from him and that he had never kept such documents at home.

Justice O'Reilly refused the application for an Anton Piller order, finding that the wife had not demonstrated a real possibility of the husband destroying the material. The court reasoned that the husband's own evidence, which raised the existence of the documents to argue against waiver of privilege, made it unlikely he would subsequently alter them. Furthermore, the court was not satisfied that serious potential or actual damage would befall the wife's case if the order was refused, noting that the issue of waiver was a serious one for her, as it related to her desire to have a binding financial agreement set aside. The court suggested that evidence from Ms E, the solicitor who made the notation, could be sought at a future hearing.

Despite refusing the Anton Piller order, the court ordered that prior to a procedural hearing scheduled for 13 October 2011, the husband was to produce to the wife's solicitors, 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. The wife's costs of the application were reserved, and the court certified that it was reasonable to brief counsel.