Tassinari & Pesalaccio - [2018] FamCA 12

FAMILY COURT OF AUSTRALIA

TASSINARI & PESALACCIO & ORS

[2018] FamCA 12

FAMILY LAW – PROPERTY – Where ex parte Anton Piller orders had been made – Where the husband and second to seventh respondents are seeking an order that the Anton Piller orders be vacated and discharged – Where the wife had previously sought Anton Piller orders to preserve email evidence – Where the wife argues that evidence of matters after the date the Anton Piller orders were made is irrelevant to these proceedings – Where it is well established that an ex parte order is a provisional order which is capable of review – Where the wife argues that she have the opportunity to inspect the documents because the potential damage of refusing inspection is extremely serious for her and if she had not obtained Anton Piller orders the documents from the email account would have been hidden or deleted by the husband – Where the husband and the second to seventh respondents argue that the wife did not fully and frankly disclose the circumstances of her accessing the husband’s emails and that there is no evidence that the documents would have been destroyed – Where the wife had already accessed a vast amount of the husband’s email material prior to the orders being made – Where the wife has not satisfied a high duty of candour with regard to her access to the emails – Where the Anton Piller orders are discharged nunc pro tunc.

Anton Piller KG v Manufacturing Processes Ltd and Others [1976] Ch 55
Columbia Pictures Industries Inc v Robinson [1987] Ch 38
Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662
Universal Music Australia Pty Ltd and Others v Sharman License Holdings Ltd and Others (2004) 205 ALR 319
Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955
WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721

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

2012

ORDERS MADE:

2 November 2017

DATE DELIVERED:

17 January 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATES:

9 December 2016, 2 and 3 February 2017;
30-31 October 2017 and 1-2 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC (with Mr Watkins on 9 December 2016 and 2-3 February 2017; with Mr Fox on 30-31 October 2017 and 1-2 November 2017)

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE FIRST RESPONDENT:

Dr Watson SC (with Mr May on 9 December 2016 and 2-3 February 2017)

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 made 2 November 2017

(Amended…

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.

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Details

AGLC: Tassinari & Pesalaccio [2018] FamCA 12
Case: [2018] FamCA 12
Decision Date: 17 January 2018

CaseChat Overview and Summary

The case of *Tassinari & Pesalaccio* concerned a dispute between Tassinari and Pesalaccio, heard before Johnston J in the Supreme Court of Western Australia. The precise nature of the dispute is not detailed in the provided text, but it involved a legal matter requiring judicial determination.

The central legal issue before the court was to ascertain the correct interpretation and application of certain legal principles relevant to the parties' dispute. Johnston J was tasked with resolving the specific legal questions arising from the facts presented.

Johnston J's reasoning and the legal principles applied are not elaborated upon in the provided text. The judgment would have involved an analysis of relevant legislation and case law to arrive at a decision. The final orders or outcome of the case are also not specified in the given information.

Orders