Fazio v Fazio

Case [2024] WASC 114


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

  1. The parties to these proceedings have been involved in a litigation over many years involving multiple proceedings.

  2. 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.

  3. 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.

  4. The defendant wishes to tender the Documents at trial.[3]

    [3] Defendant's submission [1].

  5. 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…

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Fazio v Fazio [2024] WASC 114
Case
[2024] WASC 114
Decision Date

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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