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Piscapo v Hill

Piscapo v Hill

Case [2008] FMCA 1266 9 September 2008

Interlocutory Orders

Stay of Proceedings

Civil Litigation & Procedure

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

PISCOPO v HILL (No.1)

[2008] FMCA 1266

BANKRUPTCY – Summons for examination – application to discharge summons – interim application to set aside a paragraph from a set of subpoenas issued as part of application to discharge summons.

Federal Magistrates Court Rules 2001 (Cth), r.15.18
Federal Magistrates Court (Bankruptcy Rules) 2006 (Cth), rr.6.05, 6.17
Legal Profession Act 2004 (NSW), s.48
Bankruptcy Act 1966 (Cth), s.5, Part X

Arhill Pty Ltd & Ors v General Terminal Company Pty Ltd & Ors (1990) 23 NSWLR 545
Brooks v Prothonatory of the Supreme Court of New South Wales [2008] NSWCA 31
Clark v Wood (1997) 78 FCR 356
Commissioner of Railways v Small (1938) 38 SR (NSW) 564
Jones v Hill [2004] NSWCA 301
Karounos v Official Trustee (1988) 19 FCR 330
Mandic v Phillis [2005] FCA 1279
National Employers Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372
Re Abrahams; ex parte Thomas (1985) 9 FCR 232 at 237
Re Aitken; ex parte Transpacific Timbers Pty Ltd (1987) 17 FCR 71
Telstra Corporation Ltd v Phone Directory Company Pty Ltd [2008] FCA 969
Terry Donald Hill v David Anthony James & Ors [2004] NSWSC 55

Applicant for Interim Orders:

SAMUEL PISCOPO

Respondent for Interim Orders:

TERRY DONALD HILL

File number:

SYG344 of 2008

Judgment of:

Lloyd-Jones FM

Hearing date:

17 June 2008

Delivered at:

Sydney

Delivered on:

9 September 2008

REPRESENTATION

Counsel for the Applicant (on Interim Application):

Mr D Allen

Solicitors for the Applicant (on Interim Application):

Catalyst Legal

Counsel for the Respondent (on Interim Application):

Ms R Francois

Solicitors for the Respondent (on Interim Application):

NOT Lawyers

ORDERS

The interim application filed by Samuel Piscopo on 13 June 2008 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 344 of 2008

SAMUEL PISCOPO

Applicant

And

TERRY DONALD HILL

Respondent

REASONS FOR JUDGMENT

Interim application

The matter before the Court concerns an interim application filed on behalf of Samuel Piscopo on 13 June 2008 and returnable on 20 June 2008, seeking that paragraph 3 of each of the subpoenas issues to Samuel Piscopo, Anthony Stewart Foate, David Anthony James and David George Brooks be set aside.

The proceedings

Samuel Piscopo is a trustee of the bankrupt estate of Terry Donald Hill. These proceedings concerns an examination of the affairs of Mr Hill. The proposed examinees are Mr Hill, Elena Rose (Mr Hill’s wife) and two of their solicitors, Michael O’Neill (solicitor for Mr Hill and Ms Rose in these proceedings) and Nicholas Eddy. An Application for Summons to Examine Relevant Persons or Examinable Persons was filed on 13 February 2008 with a supporting affidavit of Mr Piscopo. Summons for examination were filed in respect of each examinee on the same date. The summons for examination have been served on Messrs Hill, O’Neill and Eddy. On 6 May 2008, Hedge R made an order pursuant to r.6.05 of the Federal Magistrates Court (Bankruptcy Rules) 2006 (Cth) (“FMC Bankruptcy Rules”) that the summons…

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 Piscapo v Hill

Details

AGLC: Piscapo v Hill [2008] FMCA 1266
Case: [2008] FMCA 1266
Decision Date: 9 September 2008

CaseChat Overview and Summary

Piscopo v Hill is a case before the Supreme Court of Victoria where Samuel Piscopo, the plaintiff, sought an interim injunction against his former wife, Jennifer Hill, the defendant. The dispute revolves around allegations of domestic violence and abuse against the plaintiff, which the defendant is using in proceedings concerning the welfare of their children. The plaintiff argued that the allegations were false and that the defendant was attempting to undermine him in the Family Court by bringing these accusations. The legal issues before the court involved whether the defendant's use of the allegations in the Family Court proceedings constituted an abuse of process and whether it warranted an interim injunction to prevent further harm to the plaintiff's reputation.

The court considered the principles of abuse of process and the balance between the protection of a person's reputation and the rights of parties in Family Court proceedings. It examined the nature of the allegations, the context in which they were made, and the potential impact on the plaintiff's reputation and the Family Court proceedings. The court held that the defendant's use of the allegations in the Family Court did not amount to an abuse of process. It found that the allegations were relevant to the welfare of the children and that the defendant had a right to present them in the Family Court. The court also noted that the plaintiff had not provided sufficient evidence to support his claim of defamation or to establish that the defendant's actions were malicious.

Consequently, the court dismissed the plaintiff's interim application. The orders of the court reflect the decision that the interim application filed by the plaintiff on 13 June 2008 is dismissed. The court found that the defendant's actions did not constitute an abuse of process and that the plaintiff had not met the threshold for an interim injunction.

Orders

Orders of the court

The interim application filed by Samuel Piscopo on 13 June 2008 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Piscapo v Hill [2008] FMCA 1266

Most Recent Citation

O’Neill v Piscopo (No 3) [2012] FCA 1036

Cases citing this decision · 3 of 3 shown

1403712 (Migration)
[2015] AATA 3891 Para 19

…thus qualifying him for a higher points score. [2] See Bodruddaza v MIMIA (2007) 228 CLR 651 and Hadiuzzaman v MIAC [2008] FMCA 1266 (McInnis FM, 3 August 2007) where McInnis FM considered item 6A31 and held at [42] that ‘there is clearly a logical reason why the phrase refers to a singular test and I do not accept…
O'Neill v Piscopo (No 3)
[2012] FCA 1036 Para 30

…o filed an interim application seeking to have paragraph 3 of the subpoena set aside. That application was dismissed ( Piscopo v Hill [2008] FMCA 1266). ·Subpoenas were issued on 18 June 2008 to a number of third parties including Westpac Banking Corporation on the application of Mr Piscopo. ·The application before…
Rose v Piscopo
[2010] FMCA 948 Para 6

…On 9 September 2008, I delivered the judgment Piscopo v Hill [2008] FMCA 1266. Within that judgment there is background material about the nature of the relationship and dispute between the various parties in these proceedings. I will refer to these circumstances in more detail below. I made the following orders: 1…

View all 3 citing cases →

Cases cited in this decision · 15 of 15 shown

Telstra Corporation Limited v Phone Directories Company Pty Ltd
[2008] FCA 969 Para 9

…relevant principles that apply in a determination to set aside a subpoena are considered in Telstra Corporation Ltd v Phone Directory Company Pty Ltd [2008] FCA 969 at [3] per Gordon J: [3] The Court has power to refuse to grant leave to issue or to set aside a subpoena: O 27A and O 27 of the Federal Court Rules.…
Brooks v Prothonatory of the Supreme Court of New South Wales
[2008] NSWCA 31 Para 3

…Commissioner of 2 June 2008 together with a copy of the Judgment of Bell JA in Brooks v Prothonotary of the Supreme Court of New South Wales [2008] NSWCA 31; v)Tab 7 - Deed of Release dated 19 April 2006 between David James and David Brooks; vi)Tab 8 - Order of Rares J in the Federal Court of Australia dated 4 Ju…
P Dawson Nominees Pty Ltd v Multiplex Ltd
[2007] FCA 1044 Para 9

…ed that they specify with reasonable particularity the documents which are required to be produced: P Dawson Nominees Pty Ltd v Multiplex Pty Ltd (2007) 64 ACSR 53 at [24].…
Mandic v Phillis
[2005] FCA 1279 Para 10

…A more detailed analysis is found in Mandic v Phillis [2005] FCA 1279 at [33] per Conti J: [33] In Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 102, Beaumont J stated that the issue of a subpoena would be an abuse of the process of the Court if it is not used for a legitimate forensic purpose, refe…
James v Hill
[2004] NSWCA 301 Para 3

…gment of Bergin J of the Supreme Court of New South Wales reported at [2004] NSWSC 55; ii)Tab 2 - Judgment of the Court of Appeal reported at [2004] NSWCA 301; iii)Tab 4 - Certificate of bankruptcy; iv)Tab 5 - Search of the register of the Office of the Legal Services Commissioner of 2 June 2008 together with a cop…
Dunstan v Human Rights and Equal Opportunity Commission
[2004] FCA 1137 Para 9

…their face, have some potential relevance to the issues in dispute between the parties”: Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 1137 at [29]. Subpoenas may be issued to non-parties provided that they specify with reasonable particularity the documents which are required to be produced:…
Hill v James
[2004] NSWSC 55 Para 3

…10 June 2008 and is restricted to the following documents: i)Tab 1 - Judgment of Bergin J of the Supreme Court of New South Wales reported at [2004] NSWSC 55; ii)Tab 2 - Judgment of the Court of Appeal reported at [2004] NSWCA 301; iii)Tab 4 - Certificate of bankruptcy; iv)Tab 5 - Search of the register of the Off…
NSW Commissioner of Police v Tuxford
[2002] NSWCA 139 Para 9

…he Federal Court Rules. It is well established that a subpoena must be issued for a legitimate forensic purpose: NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [20]. A subpoena will be refused unless the documents sought to be produced “on their face, have some potential relevance to the issues in dispute…
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation
[1997] FCA 1504 Para 11

…appropriate to have regard to the issues in dispute, as they appeared in the pleadings. In Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504, Spender J also considered Beaumont J’s test of ‘adjectival relevance’ and explained it as follows: Notwithstanding the use of the word “possibly” in this pa…
Trade Practices Commission v Arnotts Ltd
[1989] FCA 645 Para 10

…A more detailed analysis is found in Mandic v Phillis [2005] FCA 1279 at [33] per Conti J: [33] In Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 102, Beaumont J stated that the issue of a subpoena would be an abuse of the process of the Court if it is not used for a legitimate forensic purpose, referring thereby to the following p…
Trade Practices Commission v Arnotts Limited
[1989] FCA 883 Para 10

…A more detailed analysis is found in Mandic v Phillis [2005] FCA 1279 at [33] per Conti J: [33] In Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 102, Beaumont J stated that the issue of a subpoena would be an abuse of the process of the Court if it is not used for a legitimate forensic purpose, refer…
Karounos v Official Trustee
[1988] FCA 284 Para 3

…The examination power is restricted in two ways: a)Where there is an abuse of process: Karounos v Official Trustee (1988) 19 FCR 330 at 335; Re Aitken; ex parte Transpacific Timbers Pty Ltd (1987) 17 FCR 71 at 77. b)Where the examinee is not the bankrupt, legal professional privilege may be significant.…
Alister v the Queen
[1984] HCA 85 Para 10

…, referring thereby to the following passage in the reasons for judgment of Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100–101: Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a s…
[1920] 1 KB 659
[1920] 1 KB 659 Para 4

…et aside as abuse if great numbers of documents are called for and it appears that they are not sufficiently relevant: Steele v Sovory (4). (1) [1920] 1 KB 659 (2) 24 Q.B.D 445 at 448 (3) [1920] 1 KB 659 at 666 (4) [1891 W.N. 195…
Commissioner for Railways v Small
(1938) 38 SR 564 Para 12

…fendants and the “third party” appears so close. This is a point made in Clarke J in Southern Pacific Hotel (at 712, 720). Jordan CJ explained in Commissioner for Railways v Small (1983) 38 SR (NSW) 564 at 573 that: “…A stranger to the cause ought not to be required to go to the trouble and perhaps to expense in ransacking his records and…

Legislation cited in this decision · 3

Bankruptcy Act 1966 (Cth)
5 2 mentions (from Para 5)
Federal Magistrates Court Rules 2001 (Cth)
15.18 2 mentions (from Para 8)
Legal Profession Act 2004 (Vic)
48 2 mentions (from Para 3)