Tassinari and Pesalaccio And Ors

[2017] FamCA 1127

FAMILY COURT OF AUSTRALIA

TASSINARI & PESALACCIO AND ORS [2017] FamCA 1127

FAMILY LAW – PRACTICE AND PROCEDURE – Legal Professional Privilege – Where a digital forensic expert was appointed during complex proceedings to inspect the wife’s email material – Where the second to seventh respondents have filed an application that legal professional privilege does not attach to documents inspected – Where it is held that given the nature of the material, which includes correspondence between the wife and various lawyers, the ordinary principles of legal professional privilege apply to each of these documents without exception – Where the application is dismissed.

Family Law Rules 2004 (Cth) r 15.60

APPLICANT: Ms Tassinari

FIRST RESPONDENT: Mr Pesalaccio

SECOND RESPONDENT: Ms Pesalaccio

THIRD RESPONDENT: B Pty Ltd

FOURTH RESPONDENT: C Pty Ltd

FIFTH RESPONDENT: D Pty Ltd

SIXTH RESPONDENT: E Pty Ltd

SEVENTH RESPONDENT: Mr F Pesalaccio

FILE NUMBER: SYC 3880 of 2012

DATE DELIVERED: 31 October 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATES: 30 & 31 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC with Mr Fox

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE FIRST RESPONDENT: Dr Watson SC

SOLICITOR FOR THE FIRST RESPONDENT: Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE SECOND TO SEVENTH RESPONDENTS: Mr McInerney SC with Mr Alexander

SOLICITOR FOR THE SECOND TO SEVENTH RESPONDENTS: McGrath Dicembre & Company

Orders

1. That paragraph 3 of the Application in a Case filed on 15 March 2017 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tassinari & Pesalaccio and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3880 of 2012

Ms Tassinari

Applicant

and

Mr Pesalaccio
First Respondent

and

Ms Pesalaccio
Second Respondent

and

B Pty Ltd
Third Respondent

and

C Pty Ltd
Fourth Respondent

and

D Pty Ltd
Fifth Respondent

and

E Pty Ltd
Sixth Respondent

and

Mr F Pesalaccio 

Seventh Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. During the course of this complex litigation a single expert was appointed, namely Mr G, who is a digital forensics expert.  He has inspected computer hardware and software and has had access to a considerable amount of email material pursuant to various orders made in these proceedings and has now prepared three reports.

2. One of the matters which was contained in the Application in a Case filed by the second to seventh respondents on 15 March 2017 is at paragraph 3 set out as follows:

   3.Pursuant to Rule 15.60 of the Family Law Rules, the Court accede to the request made by the Expert Witness, [Mr G], for a direction in the nature of a procedural order, in that:

   a.The Court inspect the documents contained within the sealed A4 envelope marked “Private and Confidential” [which I note were documents which were sent directly to me in chambers in March this year] …; and

   b.The Court give the directions to the expert whether, and if so in what circumstances, he can have regard to the email communications described in sub-paragraph (a) above, in answering the question as to “how the Wife was able to access the Husband’s emails and the full extent of that access”; and

   c.In respect such direction declare that legal professional privilege does not attach to any of those documents … for the reasons outlined …, and that the expert may have regard to the email communications described … above, in answering [that] question.

3. Mr G was required under orders made on 3 February 2017, upon giving a confidentiality undertaking and complying with a certain protocol, to access certain email material of the wife in these proceedings for the purpose of preparing his report.  During the course of accessing email material he came across certain email messages which are email messages between the wife and her lawyers. 

4. As I have alluded to, Mr G sent a letter to my associate in March 2017 seeking directions from me pursuant to Rule 15.60 of the Family Law Rules (2004) which, as an expert, he is entitled to do. That matter really had not come to my full attention until we resumed the hearing yesterday. As can be gleaned by the application an issue has arisen about whether the particular documents which form the contents of that envelope which came to me in chambers, are the subject of legal professional privilege. As I was asked to do, I inspected those documents yesterday. I have heard submissions on behalf of the second to seventh respondents, including very detailed submissions about the exceptions to the relevant principles including what was submitted about evidence unlawfully obtained.

5. Having considered those matters I am not persuaded by the application.  In my view, given the nature of the material that I have viewed which is correspondence between a client and her various lawyers, in my view, the ordinary principles of legal professional privilege apply to each of those documents without exception.  In these circumstances, in my view, it would be inappropriate for Mr G to consider those documents for the purposes set out in the application.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 31 October 2017.

Associate: 

Date:  24 January 2018