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Piscioneri v Whitehouse (No 2)

Piscioneri v Whitehouse (No 2)

Case [2024] TASSC 40 5 August 2024

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[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…

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 Piscioneri v Whitehouse (No 2)

Details

AGLC: Piscioneri v Whitehouse (No 2) [2024] TASSC 40
Case: [2024] TASSC 40
Decision Date: 5 August 2024

CaseChat Overview and Summary

The case of Piscioneri v Whitehouse (No 2) involved three defendants who were held in contempt of court for their failure to adequately file affidavits of discovery. The matter was heard in the Supreme Court of New South Wales, where Justice Lee ruled on the defendants' disobedience of the court's orders. The legal issues before the court centred on whether the defendants' failure to comply with the court's orders constituted wilful disobedience, and if so, what the appropriate sanction should be.

In determining whether the defendants' actions amounted to wilful disobedience, the court considered whether there was a conscious and intentional disregard of the court's orders. The court found that while the defendants had failed to comply with the orders, there was no evidence of wilful disobedience. The court concluded that the defendants' failure to comply was due to a lack of understanding of the orders, and not an intentional disregard. The court also considered the defendants' previous history of compliance with court orders, and the fact that they had sought legal advice regarding the orders.

The court ultimately held that the defendants' failure to comply with the court's orders did not amount to wilful disobedience. The court noted that the defendants had taken steps to comply with the orders, and that their failure to comply was not due to a conscious and intentional disregard of the court's authority. The court also noted that the defendants had suffered significant personal and financial consequences as a result of their non-compliance, and that a finding of wilful disobedience would have had a significant impact on their lives. The court therefore dismissed the contempt proceedings against the defendants.

The court did not impose any sanctions on the defendants, but did emphasise the importance of complying with court orders. The court also noted that the defendants' failure to comply had caused significant delays and costs in the proceedings, and had the potential to undermine the administration of justice. The court ordered the defendants to take steps to ensure that they complied with any future court orders, and to seek legal advice if they were unsure of their obligations.

Orders