Piscioneri v Whitehouse (No 2)

[2024] TASSC 40

[2024] TASSC 40

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Piscioneri v Whitehouse (No 2) [2024] TASSC 40
PARTIES:	PISCIONERI, Gabriella Jean
v
WHITEHOUSE, David Milne
PISCIONERI, Matthew Dominic
GATES, Genevieve Maria
FILE NO:	3044/2021
DELIVERED ON:	5 August 2024
DELIVERED AT:	Hobart
HEARING DATE:	29 July 2024
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Courts and Judges – Contempt – Particular contempts - Disobedience of orders of court - Orders relating to documents – Failure to adequately file affidavits of discovery – Three defendants – Three lists of documents and three affidavits required by orders – No wilful disobedience.

Aust Dig Courts and Judges [140]

Cases cited:
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Circuit Finance Australia v Sobbi [2010] NSWSC 789
Commissioner for Fair Trading v Rixon (No 2) [2014] NSWSC 431
Fairclough v Manchester Ship Canal Co [1897] WN 7
Forestview Nominees Pty Ltd v Perron Investments Pty Ltd [1999] FCA 405, 93 FCR 117
Hinch v Attorney-General (Vic) (1987) 164 CLR 15
Maff Investments Pty Ltd v Fuller (1991) 3 WAR 546
Markisic v Commonwealth [2007] NSWCA 92, 69 NSWLR 737
Metcash Trading Limited v Bunn (No 5 ) [2009] FCA 16
Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Spindler v Balog (1959) 76 WN (NSW) 391
Steiner Products Limited v Willie Steiner Limited [1966] 1 WLR 986
Trade Practices Commission v C G Smith Pty Ltd (1978) 30 FLR 368

Witham v Holloway (1995) 183 CLR 525

REPRESENTATION:

Counsel:

Plaintiff:	In person
Defendants:	D Deayton
Murdoch Clarke:	D Deayton

Solicitors:

Defendants:  Murdoch Clarke

Judgment Number:	[2024] TASSC 40
Number of paragraphs:	25

Serial No 40/2024 File No 3044/2021

GABRIELLA JEAN PISCIONERI v DAVID MILNE WHITEHOUSE, MATTHEW

DOMINIC PISCIONERI and GENEVIEVE MARIA GATES

REASONS FOR JUDGMENT BLOW CJ
5 August 2024

1             The plaintiff in these proceedings, Gabriella Piscioneri, in an interlocutory application filed on 15 May 2023, amongst other things commenced proceedings for contempt of court. She is seeking to have the solicitors for the defendants, Messrs Murdoch Clarke, dealt with for contempt on the basis of non-compliance with two orders relating to the discovery of documents.

2             The contempt proceedings have been instituted in relation to orders made in contentious probate proceedings. The principal proceedings concern the estate of the plaintiff's mother, Marie Theresa Piscioneri, who died in 2021. In 2019 she signed a will that was prepared in the office of Murdoch Clarke. The plaintiff has brought an action seeking an order in the nature of a declaration that that will is invalid. The defendants in the proceedings are the executors named in that will – the solicitor who drew it and two of the plaintiff's siblings.

The discovery proceedings

3            On 5 October 2022 Holt AsJ conducted a directions hearing in the action and made a series of interlocutory orders. One of those orders was as follows:

"4 Within 21 days the defendants are to file and serve their affidavits verifying
their list [sic] of documents."

4            Only one of the three defendants filed an affidavit verifying a list of documents in accordance with that order. The second defendant, Matthew Piscioneri, swore that affidavit on 24 October 2022. The plaintiff contends that the defendants' solicitors committed a contempt by failing to obtain and file similar affidavits from the first and third defendants.

5             The plaintiff took the point that all three defendants should have filed affidavits verifying lists of documents. She applied for an order requiring them to do so. On 10 March 2023 Holt AsJ made another series of orders in relation to the action, including the following:

"3 The first and third defendants are to make, file and serve their affidavits
verifying their lists of documents within 14 days."

6 Rule 384 of the Supreme Court Rules 2000 includes the following:
"(1) A list of documents is to –

(a) be in accordance with the prescribed form …

…

(4) An affidavit verifying a list of documents is to be in accordance with the
prescribed form."

7             The Supreme Court Forms Rules 2000 contain prescribed forms for a list of documents (Form 26) and an affidavit verifying a list of documents (Form 27). The first and third defendants swore affidavits in March 2023 for the purpose of compliance with the order of Holt AsJ, but the prescribed forms were not used. No new list of documents was created. Instead each of those two defendants

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deposed to having seen the second defendant's list of documents of October 2022 and not being aware
of any further documents that he or she had access to that were relevant to the issues in the action.

8             The plaintiff contends that the defendants' solicitors committed a second contempt by not obtaining and filing new lists of documents and affidavits verifying them sworn or affirmed by both the first and third defendants.

9             The plaintiff was not satisfied with the new affidavits. She sought and obtained another order from Holt AsJ. On 19 May 2023 his Honour made a series of orders in relation to the action, including the following one:

"3 The time within which the defendants are to file their affidavits verifying their lists of documents in accordance with the requirements at law and under the rules is extended for 4 weeks from today."

10          About four weeks later the defendants' solicitors filed new affidavits verifying lists of documents sworn or affirmed by each of the three defendants.

The applicable law

11           Courts have powers to punish for contempt because such powers are "necessary to uphold and protect the effective administration of justice": Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107.

12 Contempt charges must be proved to the criminal standard, beyond reasonable doubt: Witham
v Holloway (1995) 183 CLR 525 at 529; Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 49-50.

13           A contempt of court can be constituted by the breach of an order of the court: Trade Practices Commission v C G Smith Pty Ltd (1978) 30 FLR 368 at 375; Spindler v Balog (1959) 76 WN (NSW) 391; Circuit Finance Australia v Sobbi [2010] NSWSC 789 at [10]; Commissioner for Fair Trading v Rixon (No 2) [2014] NSWSC 431 at [39].

14           A person cannot be found guilty of a contempt for breach of an order if the terms of the order are ambiguous: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 515-516; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [56]-[57].

15           When it is alleged that a contempt has been committed by failing to comply with a court order, it must be demonstrated that the contempt was "wilful" or "contumacious", as distinct from "casual, accidental or unintentional": Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (above) at 111-112; Markisic v Commonwealth [2007] NSWCA 92, 69 NSWLR 737 at [64]; Fairclough v Manchester Ship Canal Co [1897] WN 7 (Court of Appeal); Steiner Products Limited v Willy Steiner Limited [1966] 1 WLR 986 at 991 (Stamp J); Maff Investments Pty Ltd v Fuller (1991) 3 WAR 546 at 550 (White AJ); Commissioner for Fair Trading v Rixon (above) at [41].

16           It is not necessary for an applicant to prove that the alleged contemnor was aware that his or her conduct constituted a breach of the relevant order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143; Metcash Trading Limited v Bunn (No 5 ) [2009] FCA 16 at [9]; Commissioner for Fair Trading v Rixon (above) at [43].

The evidence

17           I conducted a hearing of the contempt proceedings on 29 July 2024. The plaintiff represented herself, relied on an affidavit that she had sworn, and was not cross-examined. The defendants and Murdoch Clarke were represented by counsel. The solicitor who had carriage of the proceedings in the

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office of Murdoch Clarke at all material times, Michael Flanagan, was the only other witness. An
affidavit affirmed by him was taken as read and he was cross-examined by the plaintiff.

18           In my view Mr Flanagan was an honest and truthful witness. I accept his evidence as to his state of mind concerning compliance with the orders of 5 October 2022 and 10 March 2023. I accept that at all material times he was aware of the relevant orders and intended that they be complied with in a timely manner. I am satisfied that he believed that obtaining and filing the second defendant's list of documents, verified by affidavit, was sufficient to comply with the first of the two orders because he believed that the other defendants did not have any discoverable documents. I am satisfied that he believed that the two affidavits filed in March 2023 were sufficient to comply with the second order for the same reason.

19   I am satisfied that Mr Flanagan did not intend to disobey or defy either of the two orders.

20           I am satisfied that the affidavits filed in October 2022 and March 2023 were not sufficient to comply with the two orders. The first of those orders made it clear that multiple affidavits were required. In my view there was no scope for reading the plural as including the singular in that order. I am also satisfied that the order of March 2023 required the filing of lists of documents, verified by affidavit, as distinct from affidavits making it clear that there was no practical need for a new edition of the October 2022 list.

21          To the extent that there was non-compliance with the two orders, all such non-compliance was trivial, unnoticed, and not wilful or contumacious.

22   It follows that no contempt was committed.

Conclusion

23          The order for punishment for contempt sought by the plaintiff did not make it clear whom she was accusing. The order sought read as follows:

"An Order for contempt given the defendants failure to comply with Order 4 of the 5th October 2022 and Order 3 of the 10th March 2023 especially given the effort and stress this has subjected the plaintiff to and that, as she is unrepresented, she is unable to get an award of costs."

24           It became clear when the plaintiff was before me on other occasions over the last 10 months that it was the firm Murdoch Clarke whom she alleged to be guilty of contempt. During the hearing on 29 July it emerged that Mr Flanagan was an employee of the firm, not a partner, at all material times. If Mr Flanagan had committed a contempt, his employers would not necessarily have been guilty of contempt. The principles relating to vicarious liability are not applicable: Forestview Nominees Pty Ltd v Perron Investments Pty Ltd [1999] FCA 405, 93 FCR 117.

25   For the reasons stated, paragraph 4 of the interlocutory application filed by the plaintiff on 15

May 2023 is dismissed.