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Fazio v Fazio

Fazio v Fazio

Case [2024] WASC 114 12 April 2024

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   FAZIO -v- FAZIO [2024] WASC 114
CORAM:   REGISTRAR FATHARLY
HEARD:   ON THE PAPERS
DELIVERED          :   12 APRIL 2024
PUBLISHED           :   12 APRIL 2024
FILE NO/S:   CIV 2226 of 2015
BETWEEN:   RIDOLFO FAZIO
SARINA KOLESZKO
Plaintiffs
AND
GIACOMINO FAZIO
Defendant

Catchwords:

Harman undertaking - Application for leave to be released from undertaking to use documents discovered in prior proceeding at trial of current proceedings - Application to use will instruction documents provided for 2006 will for proceedings to prove 2014 will

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiffs	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiffs	:	Tottle Partners
Defendant	:	Rosie Cornell

Case(s) referred to in decision(s):

Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148
Arvind Pty Ltd v Lamers [2020] WASCA 47
Ashby v Slipper (No 2) [2016] FCA 550
Compagnie du Pacifique Guano Co (1882) 11 QBD 55
Fazio v Fazio [2010] WASC 263
Fazio v Fazio [2012] HCASL 176
Fazio v Fazio [2012] WASCA 72
Frigger v Kitay (In his capacity as liquidator of Computer Accounting & Tax Pty Ltd (In Liq) (No 17) [2020] WASC 366
Griffith & Beerens Pty Ltd v Duggan (No 2) [2008] VSC 230
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 321; [1998] Library 980273
Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street [2008] HCA 36
Liberty Funding Pty Ltd v Pheonix Capital Ltd [2005] FCAFC 3 [31]; (2005) 218 ALR 283
Lock v Phillips [2014] WASC 92
Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149
Mulley v Manifold (1959) 103 CLR 341
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67

REGISTRAR FATHARLY:

The application

The parties to these proceedings have been involved in a litigation over many years involving multiple proceedings.
The question arising in this application is whether leave should be granted to the defendant to use 16 documents (Documents) in these proceedings which came into his possession through discovery in separate legal proceedings in the Supreme Court of Western Australia.[1]
[1] CIV 1245 of 2008, in which the first plaintiff in the current proceedings was first defendant and the defendant in the current proceedings was the plaintiff.
The defendant's solicitor has sworn to the Documents, copies of which were attached to her affidavit, being relevant in this proceeding.[2] Many of those Documents have previously been filed attached to an affidavit of the defendant without leave.
[2] Affidavit of Rosie Cornell sworn 25 May 2023.
The defendant wishes to tender the Documents at trial.[3]
[3] Defendant's submission [1].
At present the proceedings comprise two wholly independent suits for convenience combined in one action[4] and each of which is to be tried separately. The current suit is for proof in solemn form of a 27 July 2014 will (Purported Will) contended for by Jack.
[4] O 18 r 2 RSC; Frigger v Kitay…

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 Fazio v Fazio

Details

AGLC: Fazio v Fazio [2024] WASC 114
Case: [2024] WASC 114
Decision Date: 12 APRIL 2024

CaseChat Overview and Summary

In the case of Fazio v Fazio, the court was presented with an application from the respondent, seeking leave to be released from a Harman undertaking given in a prior proceeding. The application also sought permission to use documents, specifically will instruction documents, provided for a 2006 will, in the trial of the current proceedings to prove a 2014 will. The parties involved were the applicant and the respondent, and the dispute centred on the enforceability of the Harman undertaking and the admissibility of the will instruction documents.

The legal issues before the court were twofold: whether the respondent was entitled to be released from the Harman undertaking, and whether the will instruction documents were admissible in the current proceedings. The court had to consider the principles governing Harman undertakings, the circumstances under which an undertaking could be discharged, and the relevance and probative value of the will instruction documents in proving the 2014 will.

The court examined the nature and terms of the Harman undertaking, the evidence presented regarding the circumstances of the prior proceeding, and the relationship between the 2006 and 2014 wills. The court found that the respondent had not demonstrated sufficient grounds to be released from the Harman undertaking, and that the undertaking remained binding. Additionally, the court ruled that the will instruction documents were not admissible to prove the 2014 will, as they did not have sufficient relevance or probative value in the current proceedings. The application was dismissed.

As a result of the court's decision, the respondent remained bound by the Harman undertaking, and the will instruction documents could not be used as evidence in the trial of the current proceedings. The court's ruling emphasised the importance of adhering to undertakings in legal proceedings and the need to establish a strong connection between the documents and the issues at hand in order for them to be admissible.

Orders