Eizenberg v Eizenberg

[2008] VSC 322

sei

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

COMMON LAW DIVISION

No. 7043 of 2008

DAVID EIZENBERG & ORS (According to the attached schedule)	Plaintiffs
and
LISA EIZENBERG	Defendant

---

JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2008
DATE OF JUDGMENT:	28 August 2008
CASE MAY BE CITED AS:	Eizenberg & Ors v Eizenberg
MEDIUM NEUTRAL CITATION:	[2008] VSC 322

---

PRACTICE AND PROCEDURE – Search order – Anton Piller order – Privilege against self‑incrimination – Whether valid privilege claim made – Whether privilege waived by permitting execution of search order – Privilege claimed after seizure but prior to disclosure of contents of seized items to the plaintiffs – Held: valid claim to privilege established – Held: no waiver of privilege established – Whether seized items should be returned to the defendant – Risk of destruction or concealment contrary to s 254 Crimes Act 1958 (Vic) – Order for return of seized items refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A Rodbard-Bean	Dibbs Abbot Stillman
For the Defendant	Mr T Bourke	Kenna Teasdale Lawyers

---

TABLE OF CONTENTS

1. FACTS AND ISSUES................................................................................................................. 1

2. APPLICABLE LAW..................................................................................................................... 6

III  IS THERE A REAL AND APPRECIABLE RISK OF CRIMINAL...................................... 7

PROCEEDINGS?........................................................................................................................ 7

IV  HAS THE PRIVILEGE BEEN WAIVED?............................................................................... 9

1. SHOULD THE COURT ORDER RETURN OF THE SEIZED ITEMS AND THE....... 11

INDEPENDENT COMPUTER EXPERT’S REPORT?........................................................ 11

VI  CONCLUSION AND ORDERS............................................................................................. 12

HIS HONOUR:

I  FACTS AND ISSUES

1. The proceeding concerns five letters which the plaintiffs allege were written by the defendant to numerous persons.  The letters are unquestionably defamatory of the plaintiffs, and have been written with the obvious intention of causing them mental anguish and damaging their reputations.  The letters include allegations of fraud, forgery, blackmail, murder and rape.  All of the allegations are vehemently denied by the plaintiffs.

1. In Family Court proceedings between the defendant and her husband, a relative of each of the plaintiffs, the husband alleged in an affidavit sworn by him on 27 May 2008 that the first and second letters were sent by the defendant.  In an affidavit sworn on 26 June 2008 in the Family Court proceedings, the defendant denied sending the two letters.

1. On 2 June 2008, the plaintiffs’ solicitors wrote to the defendant and demanded an undertaking not to send any further letters containing allegations against them, seeking an apology and other matters.  At this time, four of the five letters had been sent.  The defendant did not respond.

1. On 13 June 2008, the fifth letter was sent.

1. On 4 July 2008, Ashley JA heard an ex parte application made by the plaintiffs for a search order under the provisions of Order 37B.[1]  Ashley JA made the search order.  The search order authorised a search party comprising an independent solicitor, two representatives of the plaintiffs’ solicitors and an independent computer expert to enter the defendant’s home and search for, and seize, drafts or copies of the letters, documents evidencing the persons to whom the letters were sent and…