Denniston and Gustz

[2017] FamCA 1003

FAMILY COURT OF AUSTRALIA

DENNISTON & GUSTZ [2017] FamCA 1003

FAMILY LAW – PRACTICE & PROCEDURE – Anton Piller Order – Significance of the disputed evidence in proceedings – Credibility evidence

Family Law Act 1975 (Cth) – s 34

Anton Piller KG v Manufacturing Processes Limited & Ors (1976) Ch. 55
In the marriage of Talbot, K and Talbot, AA (1994) 18 Fam LR 685
Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1998) 195 CLR 1

APPLICANT: Ms Denniston

RESPONDENT: Ms Gustz

FILE NUMBER: CAC 1096 of 2017

DATE DELIVERED: 5 December 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 5 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Davis

SOLICITOR FOR THE APPLICANT: Women’s Legal Centre

SOLICITOR FOR THE RESPONDENT: Ex-parte application

Orders

THE COURT NOTES

1. The applicant’s undertakings that she will not use information obtained pursuant to these Orders other than with the leave of the Court except for the purpose of these proceedings and undertakings to abide by a Court Order as to any damages caused to property seized by virtue of these Orders.

IT IS ORDERED THAT

1. Leave is granted to the applicant to proceed ex-parte.

2. The applicant is to provide to Ms F, a solicitor who is not a member of the firm of solicitors acting for the applicant (the supervising solicitor), with a copy these Orders in ample time for the supervising solicitor to become familiar with these Orders before attending any premises pursuant to these Orders.

3. The applicant is to arrange for the supervising solicitor to serve these Orders, together with the application and affidavit supporting the application, upon the respondent not before the time at which B is delivered to childcare on 6 December 2017 and not between the hours of 9pm and 8am. 

4. The applicant is to cause the supervising solicitor to make a list of all articles obtained as a result of these Orders prior to removal of any such articles into the supervising solicitor’s safe custody and to provide the respondent with a signed copy of the list prior to such removal.

5. The respondent must immediately on being served with these Orders permit not more than three persons comprising:

   a.The supervising solicitor;

   b.Ms J, who is a solicitor and member of the firm of solicitors acting for the applicant;

   c.The applicant

   to enter the premises at K Street Suburb A in the Australian Capital Territory and shall allow them to search for and shall surrender to them an electronic device in her power, custody or control that was used by her to access her email account ….com.au during the period 8-10 November 2016 as follows:

   a.Her laptop; and if that is not within her power, custody or control

   b.Her personal computer; and if that is not within her power, custody or control then

   c.Her mobile telephone, noting that only one of these devices is required to be surrendered in the hierarchy specified within this Order.

6. The supervising solicitor is to retain such item in the supervisor’s custody and not to permit any person to access that device without the leave of the Court.

7. The supervising solicitor is to inform the respondent that the respondent has a right to obtain legal advice prior to the execution of these Orders if that advice is sought forthwith.

8. The supervising solicitor is to inform the respondent of the applicant’s undertaking that except for the purpose of these proceedings the applicant will not make use of any of the information obtained pursuant to the execution of the Order.

9. The supervising solicitor is to advise the respondent that the seized item will be retained by the supervising solicitor pending further Order of the Court such that without further Order of the Court the applicant will not have access to the device.

10. The supervising solicitor is to prepare a written report about the execution of the Order and provide copies of that report to the respondent and the Court as soon as practicable.

11. The matter is otherwise adjourned to 10am on Monday, 11 December 2017 for further directions and or hearing.

12. It is requested that the supervising solicitor attend Court on the next occasion.

13. I direct the transcript be taken out of today’s proceedings.

14. Each of the parties is at liberty to restore this matter on short notice to the other parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Denniston & Gustz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1096 of 2017

Ms Denniston

Applicant

And

Ms Gustz

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an ex-parte application for an Anton Piller Order.  At issue is the provenance of an email, evidence of which is to be adduced at the trial of the matter, being an email sent in November 2016 by the applicant in the proceedings to the respondent in the proceedings.  That email is relied upon by the applicant.  The text of the version relied upon by the applicant can be found at page 9 of the affidavit of Mr L.  The disputed version, which includes an additional paragraph, can be seen in appendix 4 of that same affidavit.  That particular paragraph at its height contains an assertion by the applicant that she holds neither biological nor legal rights towards the child the subject of the parentage dispute.  What is sought is an Anton Piller Order to obtain an electronic device of the applicant from which the email the subject of dispute has been sent.  That application involves a serious incursion into the rights of the party and will no doubt involve entry onto that party’s premises and the removal of an item likely to contain personal information held by that party. 

jurisdiction

1. If relief is to be granted it is to be granted pursuant to a jurisdiction that enables it to be granted.  Justice Lindenmayer in Talbot[1] identified two potential sources of jurisdiction. One is s 34 of the Family Law Act which enables the Court to make the order where it is appropriate, or Justice Lindenmayer identified the inherent jurisdiction of the Court to protect its function, a matter that was also addressed in Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors[2] which set out the general principle that such injunction could be granted as is needed to ensure the effective exercise of the jurisdiction invoked.  In Patrick Stevedores the particular injunction was a Mareva injunction to preserve the subject matter of the litigation.  However the same principle is applicable to the preservation of the material by which a case is to be determined, which would be the subject of an Anton Piller injunction.  What justifies the making of the order is its necessity to protect the exercise of powers by the Court.

   [1] (1994) 18 Fam LR 685

   [2] (1998) 195 CLR 1

2. In Talbot Justice Lindenmayer referred to the key case of Anton Piller KG v Manufacturing Processes Limited & Ors (1976) Ch. 55 and extracted judgments from Master of the Rolls Denning and Lord Justice Ormrod. The Master of the Rolls stated that it was essential for the making of the order that the party should have an inspection of the item so that justice can be done. Lord Justice Ormrod set out three essential preconditions which, while they do not determine that an order will be made, are important to have in place before an order should be made. The first is that the applicant for the order hold an extremely strong prima facie case, the second is that the damage that would accrue to that person would be very serious, and the third is that there be clear evidence that the disputed material is in the possession of the party against whom the order is directed and that there is a real possibility of destruction of that material.

3. As I have observed in exchanges with counsel appearing for the respondent, who is the applicant in today’s proceedings, Lord Justice Ormrod’s three preconditions are met in this case.  As to the first matter it can be ascertained that each of the parties holds a strongly arguable case in relation to their application and response.  The applicant has a strongly arguable case to say that she is a parent and the respondent likewise has strongly arguable case to say that the applicant is not a parent.  As to the second matter which is damage, the identification of a particular person as a parent of the child of the other parent is an extremely significant matter, of such significance that it falls within that second category.  As to third matter, by inference from the expert’s report there is evidence as to the possibility of the existence of the evidence being sought still being held by the applicant to the substantive proceedings that is, unless it has already been disposed of.  Secondly, given the nature of the evidence that is being pursued, that is evidence said to have been fabricated, if such an assertion is true then there is a high risk of destruction of the material should the intention to seize the electronic device become known.

4. The real issue as to whether or not an Anton Piller injunction should be made is the overall qualifier made by Master of the Rolls Denning.  That is that it be essential that there been an inspection so that justice can be achieved.  That involves an assessment of the place in the proceedings, and at this stage, the place in the proceedings as they relate to parentage, of the disputed evidence.  The respondent in the substantive proceedings who is the applicant today says that the evidence presented by the applicant has no place in the proceedings.  However, she expects that the applicant will argue that the evidence is important because it will inform the nature of the relationship between the parties at the relevant time for a determination to be made as to parentage. 

5. For the respondent then the significance of the material sought to the proceedings is to contest the version put forward by the applicant at the substantive hearing and also for its relevance as to the determination of credibility of the parties.  If the version contended for by the respondent is accepted it seems that it does little to the substance of the applicant’s claims as to relationship.  At its highest, if the version contended for is accepted, it contains an assertion by the applicant that she held no biological or legal rights to the child which, as an expression made by the applicant, could count for little.  It seems reasonably clear that she has no rights accruing to her by way of biological descent and she may have been right or wrong as to the operation of law.  Little substantively turns on this matter. 

6. If the respondent’s contended for version is accepted and then it is potentially highly damaging as to the credibility of the applicant in the pursuit of her claim for parentage.  It may also be observed that if the applicant’s version is accepted such that the respondent is taken to have fabricated the evidence then there is likewise potentially grave damage done to the respondent in her pursuit of an outcome in the case. 

7. It may thereby be assessed that the chief relevance of this material is on a matter of credibility of the parties, both as to the content of the email and potentially more broadly as at its heart it involves a claim of a deliberate fabrication of evidence.  Does it then meet the Master of the Rolls description of being essential so that justice can be done?  Given the potentially heavy impact on the credibility that a deliberate fabrication of evidence may have on the parties, and thereby on the proceedings, and given that these proceedings in many ways appear to be likely to be heavily reliant upon the credibility of the parties, it does meet that description and so an Anton Piller Order will be issued.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 December 2017.

Associate: 

Date:  5 December 2017