Tassinari & Pesalaccio
[2018] FamCA 12
•17 January 2018
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 | of | 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 pursuant to Rule 17.02(1)(e) of the Family Law Rules 2004)
That orders be made in accordance with paragraphs 1, 2 and 3 of the Minutes of Orders filed in Court today signed by me and placed with the Court papers as set out hereunder:
1.Order that the applicant Wife’s application in a case filed 7 March 2017 be dismissed.
2.Order that the Anton Piller Orders be vacated and discharged nunc pro tunc.
3.Order that each and every one of the Relevant Persons:
a. First, deliver up the Accessed Documents to the solicitor for the second to seventh respondents forthwith;
b. Secondly, deliver up the Seized Documents to the solicitor for the second to seventh respondents forthwith;
c. Thirdly, destroy all copies and all records of the Accessed Documents;
d. Fourthly, destroy all copies and all records of the Seized Documents;
e. Fifthly, provide by affidavit, written confirmation of compliance with the order to the solicitors for the second to seventh respondents, with such affidavit to be served within seven days of compliance with orders (a)-(d) above.
PENDING FURTHER ORDER the applicant wife be restrained from making any use of any data, documents, emails or attachments accessed by her from the email account ...
That the summary dismissal application, objection to subpoena and any residual breach of confidence issue be listed for hearing at 10.00 am on 19 January 2018.
Costs be reserved.
SCHEDULE
In these Orders, the following terms have the following defined meanings:
Accessed Documents means the originals and any copies (including electronic copies) of all documents obtained by the Wife or her agents which were obtained by use of, otherwise by access to, the emails and computer records of the respondent Husband from, the email account ... or any other email account used by the Husband.
Anton Piller Orders means the Orders made by the Court on 7 September 2016
Relevant Persons means each and every one of the applicant Wife, Ms NN, Mr OO, Mr II, Mr PP, Mr R and includes each of their agents, servants and employees.
Seized Documents means the original and any copies of documents obtained by the Wife or her agents, including by Mr R and Mr II, as a result of the Anton Piller Orders (whether in hard copy or electronic format, or by any other means).
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 and Ms Pesalaccio and B Pty Ltd and C Pty Ltd and D Pty Ltd and E Pty Ltd and Mr F Pesalaccio |
Seventh Respondent
REASONS FOR JUDGMENT
Introduction
Ms Tassinari (“the wife”) and Mr Pesalaccio (“the husband”) are involved in substantive property proceedings.
On 7 September 2016, counsel for the wife appeared ex parte seeking orders in the nature of what are known as Anton Piller orders. I granted the application and made orders the effect of which was to permit the wife, with her lawyers and others, to enter premises of non-parties to the proceedings for the purpose of searching computers and making copies of email records of the husband and to remove computers, if necessary, such material and computers to be held by an independent solicitor pending further order. A copy of those orders is annexed to these reasons for judgment at Annexure “A”. Counsel for the wife said that if the orders were not made, email messages of the husband which could become relevant evidence in the substantive property proceedings between the wife and the husband might be destroyed. The Court was informed that the wife had obtained access to some of the email messages of the husband. But the full extent of such access was not made clear. The proceedings were otherwise adjourned to 19 September 2016.
The following day (8 September 2016) the wife’s agents entered the premises and downloaded a very considerable amount of email material.
When the proceedings returned to court on 19 September 2016 the husband on the one hand and the second to seventh respondents on the other hand, filed in court Responses to an Application in a Case seeking amongst other orders that the Anton Piller orders be vacated and discharged. Each of the husband and the wife were required by order to produce to the other certain specified material. I shall refer to this material again below. A copy of those orders is annexed to these reasons at Annexure “B”. The applications seeking discharge of the Anton Piller orders were adjourned for hearing on 9 December 2016.
On 9 December 2016 orders were made by consent that amongst other things, a digital forensic investigator cause a forensic image to be made of the hard drives of devices used by the wife to access the husband’s email account, with a copy of the forensic image to be provided to the wife’s solicitor, and a copy to be retained by the forensic investigator. The orders included undertakings by the wife not to access any of those devices or otherwise modify, destroy or delete any data until after compliance with the order relating to forensic imaging. Other orders and directions were made and the applications for discharge of the Anton Piller orders were adjourned to 2 and 3 February 2017. For completeness a copy of the orders is annexed at Annexure “C” to these reasons.
The hearing did not conclude on 3 February 2017 and was adjourned for hearing over a further three days, namely 30 and 31 October and 1 November 2017.
On 2 November 2017 I made orders discharging the Anton Piller orders and reserved my reasons for judgment. These are the reasons for those orders.
The Parties
Various third parties have been joined as parties to the proceedings as follows.
The second respondent is the husband’s mother, Ms Pesalaccio. The third respondent is B Pty Ltd, a company registered in 2012, the sole shareholder and director of which is the husband’s mother. The fourth respondent is C Pty Ltd which was registered in 2014, the sole shareholder and director being the husband’s brother, Mr F Pesalaccio. The fifth respondent is D Pty Ltd which was registered in 1998, the sole shareholder and director being the husband’s mother. The sixth respondent is E Pty Ltd, a company registered in 2008, the sole shareholder and director being the husband’s brother. The seventh respondent is the husband’s brother.
These entities, together with the husband, are involved in business of providing services to industry. The premises at which the computers the subject of the search and removal orders were located are the business premises of these entities.
Background
The brief background matters are as follows.
The husband and the wife were married in 2000 and separated on 24 January 2012. They were divorced on 21 December 2014.
There are three children of the marriage namely H born in 2003, J born in 2006 and K born in 2010 who are 14, 11 and seven years of age respectively. The children live with the wife and spend time each fortnight with the husband.
The wife commenced the substantive property proceedings on 3 July 2012 in what was then the Federal Magistrates Court. The proceedings were transferred to this Court on 27 August 2012.
The wife has filed two Further Amended Initiating Applications. Her Further Amended Initiating Application was filed on the day that the Anton Piller application was made, namely 7 September 2016. That application is as follows:
1 That the First Respondent Husband forthwith sign all documents and do all acts and things to transfer the following properties to the wife:
(a)L Street, Suburb M;
(b)N Street, Suburb O; and
(c)P Street, Suburb Q
subject to the mortgages thereon (unless such properties have been sold prior to these orders being made).
2 That the First Respondent Husband pay to the wife the sum of $3 million within 48 days of these orders.
3 That leave be granted to the Applicant Wife to amend her application upon full financial disclosure from the Respondents.
4 That the Husband be declared the owner of the following companies:
a) B Pty Ltd ACN …
b) C Pty Ltd ACN …
c) D Pty Ltd ACN …
d) E Pty Ltd ACN …;
5 That within 42 days of final orders being made, the Second Respondent and the Seventh Respondent transfer their shares in the entities identified at order 4 above to the Husband.
6 That within 42 days, the Second Respondent and the Seventh Respondent do all acts and things including sign all documents necessary to resign as Secretary and/or Director of the entities identified at order 4 above in favour of the Husband and that the Husband sign all documents necessary to become appointed as Director and/or Secretary in substitution for the Second Respondent and the Seventh Respondent.
As indicated above, on 7 September 2016 I made the Anton Piller orders.
On 8 September 2016 on the application of counsel for the wife, orders were made in chambers to extend the period of the search by three hours.
As also indicated above, the Anton Piller orders were executed on 8 September 2016. Mr R, the independent solicitor, supervised the execution of the search. The search finished at approximately 1.00 am on 9 September 2016. Mr R then retained the records obtained in the search.
Applications
As indicated above, the husband and the second to seventh respondents are seeking an order to discharge the Anton Piller orders of 7 September 2016.
The wife is seeking orders to continue those orders. In addition, the wife seeks an order to the effect that the respondents inform the independent computer expert which of the relevant emails could be subject to a claim for legal professional privilege, for those to be separated from the emails and for the wife to be provided with a copy of the computer disk comprising the balance of the emails.
The wife’s case in support of the ex parte anton piller orders
In support of her ex parte application for the Anton Piller orders the wife said that she believed that if the computers were not seized the husband may remove, destroy or alter the email documents contained in the computers for the following reasons:
·the husband’s email documents assist her case and may add to the Balance Sheet of assets by up to $30 million;
·the husband has not been honest and accurate in making a full and frank disclosure of his financial affairs and therefore it is likely he will want the relevant documents on the computers removed; and
·the documents are damaging to his case.
Accordingly, the wife sought Anton Piller orders to “preserve” the email evidence. The wife asserted that she had evidence which demonstrated that the husband had purchased a waterfront home for $6.51 million in the name of his mother and his mother’s company. The wife also asserted that the husband had purchased a luxury boat for $365,000 in the name of his mother, the second respondent.
The waterfront home is the property at S Street, Suburb T (“the Suburb T property”) which was purchased on 28 May 2016. The registered proprietors are the husband’s mother, Ms Pesalaccio and her company, the third respondent, B Pty Ltd as tenants in common in the proportions of 75 per cent by the husband’s mother and 25 per cent by B Pty Ltd. The purchase price was $6.51 million.
In support of her application for the ex parte Anton Piller orders the wife attached copies of emails from the husband to the effect:
·that it was the husband who dealt with the agent selling the property and also with the solicitor who acted on the purchase, which included the solicitor requesting the husband to arrange settlement cheques and ultimately forwarding the settlement statement to the husband;
·that the husband contacted an architect Ms U by email indicating that he was “searching for an architect to assist in designing my family home in Suburb T” and forwarding a sketch and photos;
·that the husband sent an email to a Mr V (presumably an architect) which included “As mentioned, my wife would like the house to have hotel like features – our preferred style is elegant, glamorous whilst remaining clean & crisp”;
·that the husband sent an email to W Architects forwarding a survey and saying “… it will be our intention to renovate the existing residence and keep it as a semi-independent residence that we can rent out and then utilise as ‘in-law accommodation’ or separate accommodation for our children when they grow up …”. These architects reported to the husband, including a fees proposal and a draft “Client Architect Agreement” naming the husband as the client;
·that the husband approached a crane hire company which subsequently provided a quotation for crane installation and hire for the site at the Suburb T property;
·that the husband arranged a bank loan with the National Australia Bank (“NAB”) of approximately $4.775 million to assist funding the purchase and appears to have become the contact for NAB with respect to securing the loan; and
·that the husband had arranged for the purchase of a $365,000 boat, the registered owner being his mother. The emails demonstrate that he negotiated the purchase price, the funding, arrangements to store the boat, instructions for its maintenance, application for its registration and that he used the boat. An email of complaint to the dealer who sold it appears to present the husband as the owner from the following:
… I have taken this boat out 5-6 times … I have encountered problems with it … I paid a premium … but it seems that this is not living up to what was sold to me …
The wife also attached to her affidavit a copy of a Commonwealth Bank of Australia Mastercard Platinum account statement for account number …68 for the period from 10 August 2013 to 14 November 2013 which had entered thereon in what she said was the husband’s handwriting “[Mr Pesalaccio] $15,441.60”. The wife said that this account had not been disclosed by the husband. The wife said that the statement included expenditure on various items of furniture at the time the husband moved into an apartment at X Street, Suburb Y (“the Suburb Y apartment”).
The wife also said that the fact that the husband moved into the Suburb Y apartment was contrary to depositions in his affidavit filed on 17 November 2014 where he said that since separation in January 2012 he has resided at his parents’ home at Suburb M.
The wife also said that the husband sought to disguise his residence at this property by arranging for the lease to be entered into by his mother’s company, Z Pty Ltd. She also attached a copy of an email from the husband to the agent handling the lease of the Suburb Y apartment requesting that the lease commence on 15 September 2013 “as the director arrives from [Europe] on the 15th …”. The wife said this was also part of a disguise because subsequent emails demonstrated that the apartment was leased for the use and occupation of the husband. An email sent to the husband on 19 May 2014 from the husband’s brother-in-law, Mr AA who undertakes accountancy work for D Pty Ltd informed the husband that rental payments were in arrears and said “[Mr Pesalaccio], Please pay your rent”.
The wife also attached email messages which indicate that the husband negotiated with a firm of accountants, BB, to provide accounting services for the Pesalaccio group of companies and members of the Pesalaccio family.
The wife also said that her house was broken into. She said that her family law papers were rummaged through and her jewellery was stolen from a secret compartment at the bottom of a drawer which the husband was aware of. She said from limited circuit TV footage the persons recorded appeared to be the husband and his brother, Mr F Pesalaccio. She also said that the child, H had said that the husband had said that he had “just got a whole bunch of new jewellery…”.
The wife’s former solicitors wrote to the husband’s solicitors on 21 July 2015 and sought answers to specific questions about the husband’s involvement in the business and in relation to various items of property. The Court was informed that her solicitors have never received a response to this letter.
The wife’s present solicitors wrote to the husband’s solicitors on 16 March 2016 seeking detailed information about the husband’s business and with respect to any monies advanced to the husband by his mother or her entities. The Court was informed that no response has been received.
The Court was also informed that the husband’s solicitors have resisted any request for production of documents in relation to the husband’s mother or related entities.
These were the circumstances in which the ex parte Anton Piller orders were made.
Submissions
The wife
The submissions by Mr Lethbridge, senior counsel, on behalf of the wife were to the following effect.
There is a positive obligation on family law litigants in property proceedings to make a full and frank disclosure of all relevant facts and matters, including documents which are or have been in the possession and control of a party.
The Court endeavours to ensure, so far as is possible, a level playing field on which litigation is conducted. The wife has little knowledge about the parties’ financial affairs and has had no access, or certainly no easy access, to relevant documents. The wife asserts that the husband’s financial position is not as he has sought to portray it but should be found to include assets which on their face are owned by others.
The wife contends that the husband has used corporate vehicles within a broad business structure controlled by his family members to conceal or quarantine assets or property interests referable to him.
The relevant date at which any questions relating to the circumstances in which the Anton Piller relief was obtained are to be assessed is 7 September 2016, the date when the order was made and evidence of matters after that date is irrelevant (see Universal Music Australia Pty Ltd and Others v Sharman License Holdings Ltd and Others (2004) 205 ALR 319).
The wife has established a strong prima facie case. It is essential that the wife have an opportunity to inspect the documents because the potential damage of refusing such inspection is extremely serious for her. There is no doubt that the husband has in his possession documents relevant to the wife establishing her case and these will not be produced willingly.
The wife has acted properly and with integrity, and candour. She has sought the Court’s permission to access the email account. She has obtained and put before the Court only a small number of documents sufficient to ground her application.
By way of explanation for delay in bringing the Anton Piller application, there have been difficulties between the wife and her former solicitors. The former solicitors have retained the wife’s file.
The absence of email documents of the type obtained by the wife must have serious consequences for her. It is unnecessary at this stage for the Court to address the question of whether or not the documents together with the wife’s additional evidence, are sufficient to establish her case.
There can be no doubt that if the wife had not obtained documents from the husband’s email account, they would not be produced by the husband but rather would be hidden or possibly deleted if he had prior notice of the wife’s knowledge of their existence and the existence of similar documents. It was necessary for the wife to do what she did.
Senior counsel also referred to the husband having deposed in several filed documents to residing at his parents’ home which is inconsistent with him having taken a lease on an apartment at Suburb Y. Senior counsel also referred to the above material in relation to the purchase of the Suburb T property, to the purchase and registration of the boat in the name of the husband’s mother and to what was asserted as being the husband’s use of an undisclosed credit card.
From April 2000 until July 2008 the husband was a director of, and the wife would contend in effect the owner of, the whole of the shareholding in the company CC Pty Ltd. Accordingly, during the period from 2000 to mid-2008, the use by the husband of an email address for business purposes, including the word “CC” would seem unsurprising and on the face of it, something in which the second to seventh respondents, accepting their case, would have no interest. The husband now conducts the business of DD Pty Ltd, a corporation in which none of the second to seventh respondents have any interest. The fact that the husband did not change his email address on ceasing his association with CC Pty Ltd was presumably a matter known to at least the sixth respondent and, it would appear, it was acquiesced in by the owner of the name.
The husband has given inconsistent evidence about alleged monies loaned to him by his mother to assist with the funding of construction of a new home at L Street, Suburb Q which became the former matrimonial home. He now says that this money in the total amount of $1,472,364 is due and owing to his mother or her company but that this has not been reflected in the CC Group accounts.
It was incorrect for the second to seventh respondents to assert that there was no likelihood of destruction of the husband’s emails. The material was stored electronically which rendered it inherently vulnerable to loss. In any event, an Anton Piller order can be justified even though there may be no risk of destruction.
The husband
The submissions by Dr Watson, senior counsel, on behalf of the husband were as follows.
The ex parte application should not have been made. The wife failed to frankly disclose or properly draw to the Court’s attention various matters contradicting her extraordinary assertions. Such include an inability to sufficiently identify her ultimate entitlement to relief. Her evidence did not support her claims. There was no evidence of any imminent threat or risk which necessitated the ex parte application.
Most importantly, the wife did not fully and frankly disclose to the Court the circumstances of her accessing the husband’s emails, her lack of authority and permission to do that, and the likelihood that it was both a breach of the law and a criminal intrusion.
Through the proceedings the wife has been responsible for multiple interlocutory applications and delays, where she has either sought but failed to obtain orders, or to pursue them and/or to act upon them.
In relation to the wife’s allegations concerning the Suburb T property, the acquisition of the sports boat, the use of an undisclosed credit card, the occupation by the husband of the Suburb Y apartment, the management of the Pesalaccio Group, the husband’s use of “CC” and the robbery, the wife’s evidence did not rise any higher than speculation.
The requirements for the making of an Anton Piller order are well established. The wife has failed to establish any of the requirements being:
·an extremely strong prima facie case;
·the damage, potential or actual, must be very serious for the applicant;
·there must be clear evidence that the respondent has in their possession incriminating documents; and
·that there is a real possibility that the respondent may destroy such material before any application inter partes can be made.
In relation to the requirement to establish a prima facie case, the wife’s substantive application does not explain why she would be entitled to any relief with respect to the property of the husband’s mother and brother and their companies.
The Court was entitled to rely upon the wife discharging a duty of utmost good faith in the Anton Piller application and she has not fulfilled this duty. There were no facts advanced to establish a risk that the husband might imminently destroy documents and no facts advanced to justify excluding the husband’s mother and brother from being heard on the application.
In relation to alleged imminent risk, the wife’s evidence is that she obtained the husband’s password (and implicitly, that she had some consent) while they were married, that is, before they separated on 24 January 2012, then apparently decided some time in 2016 to access the husband’s emails and documents using his password allegedly obtained some four years previously. The proceedings had been on foot for several years. At hearing, senior counsel’s submissions sought to draw support for the Anton Piller orders by reference to an alleged robbery in June 2015, which was more than a year prior to the application. In addition, the wife did not disclose that the evidence – a CCTV video – had been wiped over by her.
The duty of candour on the wife required a coherent presentation of material facts adverse to her as applicant for the ex parte orders and this did not occur.
The circumstances of the wife obtaining and accessing the husband’s emails and records were and still have not been explained by the wife.
The wife adduced no evidence, and has not even purported to allege, that the husband paid for any of the properties or companies the subject of the substantive orders sought by her.
The Second to Seventh Respondents
Mr McInerney, senior counsel, made submissions on behalf of the second to seventh respondents which were in summary as follows.
The wife had been accessing the husband’s emails for some time. Thus, she would know with whom he was corresponding and would already know which correspondents to address subpoenas to for production of their email records.
No damage could be done to the wife if the Anton Piller application was refused. This is because even if the Court was satisfied that there was a real risk that the husband or respondents might seek to hide or destroy evidence the emails would still exist on the servers of the various professional advisors (accountants, real estate agents, conveyancers, lawyers, etc.) with whom the husband had been corresponding. Accordingly, the wife would know the identity of the various correspondents and could subpoena them for their records.
CC (Network) and the computer server (CC Server) are located at FF Street, Suburb GG (“the Suburb GG property”). The husband’s email account, … is owned by CC Group. The wife alleges that the husband disclosed his email password to her during their marriage. A confidence shared between a husband and wife is of its very nature confidential. The husband’s email account is confidential to E Pty Ltd and to the husband. E Pty Ltd is the owner of the business name CC Group. The wife obtained access to the husband’s email account through Outlook Web Access (“OWA”). Using OWA to access the husband’s email account, as at 6 September 2016, the wife would have been able to view all of the emails stored in the Microsoft Outlook folder of the husband’s email account at that date – that is, approximately 154,656 emails, including 8,783 privileged emails, extending over the date range from 2 July 2004 to 6 September 2016. The wife has misused CC Group’s confidential information.
A respondent against whom an ex parte order has been made has two inter‑related rights. Firstly, the respondent is entitled, on learning of the order, to apply for its discharge. Secondly, an application may be made for the discharge of the order where there has been a relevant irregularity in the making of it. These principles were established by Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662. There were significant irregularities in the making of the Anton Piller orders on an ex parte basis which flowed from the wife’s breach of her obligation of candour to the Court.
The essential pre-conditions for the making of an Anton Piller order as referred to above in the husband’s submissions were also enunciated.
On an ex parte application the applicant must make full and frank disclosure of all matters adverse to the applicant’s case which are known to the applicant or would have been known if he or she had made proper enquiries. Accordingly, a high standard of candour and responsibility is required. Prima facie, a breach of the obligation for candour on an application for an ex parte injunction entitles a respondent to an immediate discharge of the injunction and restoration of the position which was obtained before the injunction was granted.
Affidavits in support of Anton Piller orders “ought to err on the side of excessive disclosure” (Columbia Pictures Industries Inc v Robinson [1987] Ch 38 at 77).
The Anton Piller orders ought to be discharged and set aside for the following reasons:
·there was no “extremely strong prima facie case”;
·the application was advanced in breach of the wife’s obligation of candour;
·the application had been delayed after four years of litigation and there was no explanation for that delay;
·the Court was not properly addressed on the likelihood that material would be destroyed or hidden if an inter partes application was made; and
·there was no risk of serious damage (potential or actual) to the wife by reason of any of the respondents’ conduct (potential or actual).
Senior counsel made a detailed submission setting out the basis of his argument for submitting that there was no extremely strong prima facie case. It is unnecessary to set out the details of this at this stage.
In relation to the obligation for candour, it was incumbent upon the wife to give the Court an opportunity of analysing the facts from the perspective of any available case which could be put or anticipated to be put by the second to seventh respondents and to set out those matters in an ordered and coherent way.
There was no explanation why, all of a sudden in September 2016 and after four years of litigation, it was now appropriate and necessary to approach the Court in secrecy and obtain the Anton Piller orders.
There was no suggestion in the evidence or the submissions that the Court could infer that any of the second to seventh respondents might try to destroy or conceal evidence if forewarned about the application. The wife merely speculated about her concerns regarding the husband’s conduct as opposed to that of any of the second to seventh respondents.
As indicated above, the orders of 19 September 2016 required the wife to produce to the husband and to the third parties not only a true electronic copy of the emails attached to her affidavit in support of the application for Anton Piller orders but also a true electronic copy of any other emails and other documents obtained by or for her by the same or substantially the same means. The wife’s solicitors forwarded to those acting for the husband and also to the second to seventh respondents on 30 September 2016 a USB stick which they said was in compliance with the orders to which I have just referred. But it became clear during the course of cross-examination of the wife and also as a consequence of the reports of Mr G, computer expert, that a considerable number of the husband’s emails to which the wife had access were not included on that USB stick in compliance with the orders.
It became clear that screen shots taken of the husband’s email account had been obtained using the “TOR BROWSER” to access OWA which clearly fall within the description of those emails required under the orders. This conduct is not conduct sufficient to comply with the wife’s duty of candour.
Also inconsistent with the wife’s duty of candour is the fact that since the time of making the Anton Piller orders on 7 September 2016 the wife destroyed the hard drive on her laptop computer and also wiped material from her iPad.
Amongst the emails forwarded by the wife to her lawyers in relation to preparation of her application for the Anton Piller orders were several emails from the solicitor for the second to seventh respondents. One would expect such emails to attract the protection of legal professional privilege. The Court should have been informed about this during the course of the wife’s counsel addressing the Court on her Anton Piller application on 7 September 2016.
In relation to the wife’s implicit suggestion that she had the husband’s permission to access his email account on the basis that he had provided her with his email password during the marriage and had not changed it since separation, the use of the TOR BROWSER to access his email account fundamentally changes the character of the wife’s conduct. That is, it is consistent with the wife’s concession during cross-examination that she did not have the husband’s permission to access his account. Using the TOR BROWSER has the consequence that the person on the other end of the connection cannot trace back the access to the user and allows the user to conceal their identity.
Mr G said that the specific TOR BROWSER software has to be set up on a computer or device and is used by persons who are highly sophisticated in accessing and retrieving data from the internet, particularly the “deep web”, and is not usually known to, or used by, an unsophisticated computer user. The wife had described herself as an unsophisticated computer user.
It would appear, therefore, that the wife has been assisted by another person in accessing the husband’s email account and, in the opinion of Mr G, using a computer or device other than the wife’s laptop computer or her iPad. This is inconsistent with the wife’s assertions that she alone undertook access to the husband’s email account using her computer and that she did not have the assistance of another person in doing so.
The wife had also said during cross-examination that her access to the husband’s email account did not involve the installation of software for that purpose. This is quite inconsistent with Mr G’s opinion about the requirements for the use of the TOR BROWSER.
The wife applied for the Anton Piller order not to vindicate legal rights or preserve evidence but to regularise the fact of her unlawful conduct by obtaining the Court’s sanction after the fact to rely on documents illegally accessed. This was a breach of her duty of candour on the ex parte application for the Anton Piller order.
The wife’s application for the Anton Piller order was put on the basis of a need to preserve the husband’s email account. This was false because at the time of the application the wife could have saved a complete copy of the husband’s email account. Had the wife saved a complete copy of this there would be no need to come to Court to preserve evidence because she would already have preserved it.
As indicated above, the wife in her affidavit in support of her application for the Anton Piller order outlined her fear that the email account would be deleted. During cross-examination she indicated the only basis for her fear was that she thought it was common sense. It was misleading to suggest to the Court that she had a legitimate fear of destruction.
The wife had a duty to disclose the fact of her use of the TOR BROWSER to access the husband’s email account, including the fact that the TOR BROWSER was used to conceal the user’s identity.
Discussion and Conclusion
In Anton Piller KG v Manufacturing Processes Ltd and Others [1976] Ch 55 the plaintiffs sought the following order on an ex parte basis:
That the defendants … do permit such persons not exceeding two as may be duly authorised by the plaintiffs and members or employees not exceeding two of the plaintiffs' solicitors to enter forthwith the premises known as … or such parts thereof as shall be occupied or used by the defendants at any hour between 8 … in the forenoon and 9 … in the evening for the purpose of (a) inspecting all documents or articles relating to the design, manufacture, sale or supply of copies of the plaintiffs' equipment … (b) removing into the plaintiffs' solicitors' custody (i) all original documents relating to the manufacture, operation or maintenance of the plaintiffs' equipment which … had been supplied by the plaintiffs to the defendants (ii) all documents or articles relating to the design, manufacture, sale or supply of copies of the plaintiffs' equipment ….
Lord Denning, M.R. held that “such an order can only be justified in the most exceptional circumstances”. His Lordship said that:
… such an order can be made by a judge ex parte, but it should only be made where it is essential that the plaintiff should have inspection so that justice can be done between the parties: and when, if the defendant were forewarned, there is a grave danger that vital evidence will be destroyed, that papers will be burnt or lost or hidden, or taken beyond the jurisdiction, and so the ends of justice be defeated: and when the inspection would do no real harm to the defendant or his case.
Lord Ormrod described the proposed orders as being “at the extremity of this court’s powers” and therefore such an order would rarely be made, and only when there is no alternative way of ensuring that justice is done to the applicant.
His Lordship enunciated the now well-known “essential” pre-conditions for the making of such order as follows:
… First, there must be an extremely strong prima facie case. Secondly, the damage, potential or actual, must be very serious for the applicant. Thirdly, there must be clear evidence that the defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter partes can be made.
I turn to consider the submission by senior counsel for the wife that to the extent that evidence by the respondents in opposition to the maintenance of the ex parte Anton Piller orders “strays into matters beyond 7 September 2016”, such evidence is irrelevant.
In support of this submission senior counsel referred to the following passage from the judgment of Wilcox J in Universal Music Australia Pty Ltd and Others v Sharman License Holdings Ltd and Others (2004) 205 ALR 319 at [40]:
Much of the affidavit evidence put before the Court is irrelevant to the present motions. The sole ground upon which I am asked to set aside the Anton Piller orders made on 5 February 2004 is material non-disclosure, on that day, of facts concerning the US proceedings. Evidence about what happened at the time of implementation of the orders on 6 February 2004 is irrelevant. This includes evidence from Ben Joseph Lyons, a computer forensic expert, as to what the search revealed, as well as evidence from Mr Bermeister and Mr Rose alleging excessive or inappropriate seizure of documents. These are important matters, but they are for another day.
I find myself unable to accept the submission. In Sharman the respondents argued that the ex parte Anton Piller orders that had been made should be set aside because although the existence of proceedings in the United States involving some of the same respondents had been disclosed to Wilcox J at the time of the application, the information provided had been inadequate. The respondents argued that if proper disclosure had been made about the (good) behaviour of the respondents in the United States proceedings in not destroying evidentiary material, the Anton Piller orders would not have been made.
Because his Honour was concerned with this issue, whatever happened in that case after the date of making the Anton Piller orders, such as the circumstances of implementing the orders, results of the search and alleged irregularities in seizing material the subject of the orders was considered by his Honour to be irrelevant to that issue.
But in my view, this cannot properly be interpreted as authority for the Court being restricted in the present case to taking account only of evidence of matters as at 7 September 2016, the date of the ex parte order, and to ignore relevant evidence presented after that date.
After all, it is well-established that an ex parte order is a provisional order which will be capable of review on its return to Court usually within a short time. In WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721 at 727 Sir John Donaldson, M.R. said as follows:
… ex parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the applicant is under a duty to make full disclosure of all relevant information in his possession, whether or not it assists his application, this is no basis for making a definitive order and every judge knows this. He expects at a later stage to be given an opportunity to review his provisional order in light of evidence and argument adduced by the other side and, in so doing, he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order.
In the present case, the orders of 7 September 2016 were made on the basis only of evidence presented on behalf of the wife. Clearly the respondents must have an opportunity at some later date to challenge that evidence and to put before the Court evidence which is relevant to the question of whether or not it is appropriate for the orders to continue to have effect. This has been done. In my view, the Court has a duty to consider that evidence in its determination of whether the Anton Piller orders are to be maintained.
Turning to the essential requirements, the first is whether the wife has been able to establish an extremely strong prima facie case. As indicated above, in support of her application the wife annexed to her affidavit a copy of various emails from the husband’s email account and other documents as referred to above.
In his affidavit the husband denied owning any interest in any of the properties in the name of his mother or her companies, including the Suburb T property. He denied that the Suburb T property was purchased for his use. He said that his parents had discussed with him over the last few years their interest in purchasing such a property. He said that his father did the bidding at the auction and was the successful bidder. The accounts by the husband’s mother and brother in their affidavits were consistent with this.
In relation to the purchase of the boat, each of the husband, his mother and his brother said in their affidavits that the boat had been purchased following a family holiday during which five members of the extended family had a bad experience in a boat which the husband’s mother’s company had won in a raffle. They said that the husband’s father had indicated that he wanted them to purchase a suitable boat.
In relation to the credit card which the wife asserted was a credit card of the husband which he had not disclosed, the husband and his brother both said in their affidavits that the credit card was that of the brother and his wife which had been made available to the husband to fund the purchase of furniture and equipment for the Suburb Y apartment.
It is the case that the evidence of the husband, his mother and his brother in their affidavits about these matters has not been tested. But I must say, in light of the material referred to, I find myself not having the confidence I had on 7 September 2016 when considering the wife’s application for the Anton Piller orders that she could demonstrate an extremely strong prima facie case.
Be this as it may, I am comfortably satisfied that for other reasons, the Court would not confirm the Anton Piller orders.
The second and third of the essential requirements are in effect that the damage, potential or actual, must be very serious for the applicant and that there is a real possibility that the respondents might destroy incriminating documents. At the ex parte hearing counsel for the wife made strong submissions that the husband might destroy emails and other documents in his possession which were very important to the wife’s case and that if this occurred, this would have a serious consequence for the wife’s case.
Yet, the Court was not informed during the ex parte hearing on 7 September 2016 that a vast amount of email material had already been accessed in the husband’s email account by the wife. On Mr G’s investigation, this was in excess of 154,000 emails. In fact, on 7 September 2016, when I asked counsel why it would be necessary to obtain emails which the wife already had, I was informed that “these are just some of them … there are many more I’m told – I understand”. In my view, in circumstances where the wife had already gained access to more than 154,000 of the emails in the husband’s email account, it was quite misleading for the Court not to have been informed about the full extent of what the wife had done.
On 7 September 2016 the wife was asking the Court to make an order which, as indicated above, Lord Denning described as only being “justified in the most exceptional circumstances”.
In these circumstances, in my view, there is a very high duty of candour required of the wife. As Allsop J (as his Honour then was) observed in Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 at [38]:
In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application: Thomas A Edison Ltd v Bullock (1912) 15 CLR 678 at 681-82 per Isaacs J. That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis-stating the position. It means squarely putting the other side’s case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what can be said on the respondents’ behalf. That is the responsibility of the applicant, through its representatives.
and at [47] his Honour said:
The high standard of candour and the heavy responsibility on those who seek ex parte orders is especially the case where (as it was here, and as will often be the case) a discretion is involved. The judge must be given the opportunity of analysing the facts from the perspective of any available case which can be put, or anticipated to be put, by the absent party…
In my view, this duty of candour required the wife to inform the Court about the extent of her access to the emails.
In addition, it has now become clear that amongst documents which came to the attention of the wife and also her lawyers were documents not only of the husband but also of the other respondents which appear to be documents in relation to which legal professional privilege could be claimed. In my view, the duty of candour required that the Court be informed about this at the time when the application for the ex parte orders was being made. Counsel for the wife did not do so.
Had I been informed that the wife had gained access to the entirety of the husband’s emails and the extent of her downloading of these I would not have made the Anton Piller orders because the wife either had the material or would have been able to obtain it by issuing subpoenas.
In all these circumstances, in my view, the ex parte orders cannot be permitted to stand.
However, in my view, the case for the wife maintaining the order has become even weaker because of further breaches of her duty of candour.
As indicated above, when the matter returned to Court on 19 September 2016 orders were made which required the wife:
(a)to answer specific questions which were to be provided to the legal representatives;
(b)to produce to the husband and to the other respondents certain documents including:
(i)an electronic copy of emails exhibited to her affidavit in support of the application for the Anton Piller orders, as well as any other emails and documents obtained by her by the same or substantially the same means; and
(ii)a copy of any document recording any communication by the wife of the husband’s email password to any other person.
I am satisfied that there has been only partial compliance by the wife with these orders.
On 30 September 2016 the wife’s solicitors forwarded to the solicitors for the husband and the other respondents a USB stick which was described in the letter as being “in compliance” with the requirements of the 19 September 2016 orders, that is, an electronic copy of the emails and documents accessed by the wife from the husband’s email account. But it became clear from the investigations subsequently conducted by the computer expert, Mr G and from subsequent production of documents by the wife that the USB stick provided did not contain anything like the totality of the said emails and documents that had come into the wife’s possession.
Similarly troubling is the fact that on the day before the USB stick was sent to the solicitors, namely 29 September 2016, the wife destroyed the original hard drive on her laptop computer. She conceded that at the time she did this she knew that the 19 September 2016 Court orders required her to produce an electronic copy of the emails she had obtained from the husband’s email account. The wife said that she thought that if she copied “everything” onto a new hard drive this would be appropriate. But she subsequently conceded that she made a deliberate decision to transfer only a selection of documents from the original hard drive which she destroyed to a new hard drive. The wife also conceded that at the time, she also knew that all of the respondents were interested to ascertain how she had gained access to the husband’s email account. The wife said that she destroyed the original hard drive because it was “faulty” and also had a lot of her personal information on it. This conduct would appear to be in breach of the wife’s undertaking of 9 December 2016 not to destroy relevant data.
Mr G said that as a consequence of the destruction of the original hard drive on the wife’s laptop computer it is now impossible to ascertain how the wife accessed the husband’s email account and what documents the wife viewed, downloaded, saved or emailed therefrom.
The wife also deleted emails from her iPad. Mr G said that this made it impossible for him to verify how the wife obtained access to the husband’s email account and what emails and documents the wife had viewed, downloaded, saved, copied or emailed from the husband’s email account.
In relation to the wife’s answers to specific questions required pursuant to the orders of 19 September 2016, the reports of Mr G put several of the wife’s answers into issue. The wife deposed that the only device used by her to obtain access to the husband’s email account was her laptop computer. In fact, she had also taken screenshots of such emails using her iPad. It also emerged from Mr G’s investigation that because he was satisfied that screenshots had been taken of the husband’s email account using the TOR BROWSER and no trace of the required software for this was found on the wife’s devices, that another computer or device must also have been used.
In answer to a specific question about whether the wife had been assisted by another person to obtain access to the husband’s emails, the wife answered in the negative. She was also asked whether the obtaining of the emails annexed to her affidavit (in support of the ex parte application) involved the use of software installed for that purpose. Again the wife answered in the negative. Yet based on Mr G’s report, it is more probable than not that use of the TOR BROWSER would have necessitated specific software installation on the device and could only have been operated by a sophisticated computer user which the wife conceded she was not.
Mr G also said that a particular program called “PowerShell” had been used on the wife’s laptop computer. The wife denied having any knowledge about this and denied that any other person had accessed her computer to activate the “PowerShell” program.
What has occurred is that the wife has gained access to the email account of the husband obviously without his permission. She has seen a vast number of his emails and related documents. Many of the documents are documents of one or more of the other respondents in the proceedings. None of the respondents gave permission to the wife to gain access to their documents. Many of the documents are documents to which a claim for legal professional privilege could be made.
A copy of a considerable number of the emails has been provided by the wife to the husband. But on the basis of the reports by Mr G there is reason to think it likely that what has been provided by the wife is not the totality of the material to which the wife has had access.
I accept Mr G’s opinion that the destruction by the wife of the original hard drive from her laptop computer and her conduct in deleting emails from her iPad, have made it impossible now to verify what emails and documents the wife has viewed, downloaded, saved, copied or emailed from the husband’s email account and establish how she gained access to this account.
In my view, this is a most unsatisfactory situation. The above conduct by the wife, in my view, is quite inconsistent with, and falls well short of, what is required to fulfil the high duty of candour which the law requires of a person to whom the extraordinary relief of an Anton Piller order has been granted.
In all the circumstances, the orders made on 7 September 2016 shall be discharged.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 17 January 2018.
Associate:
Date: 17 January 2018
ANNEXURE “A”
That the Court notes that the Application and material in support has not been served on the respondents and therefore they have not had any opportunity to offer any evidence in reply.
That the Court notes that the Court considers that this is a matter where serious and urgent action is required and for this reason these orders are made ex parte.
That the Court also notes that the applicant wife has:
(a)Given to the court the usual undertaking as to damages, and
(b)Undertaken to the court to pay any person (other than the respondent) to whom notice of this order is given:
(i)any expense reasonably incurred by such person;
(ii)any damages sustained by such person consequent upon reasonable action taken by them and in either case in seeking to ensure compliance with this order; and
(c)Undertaken to the court that articles or documents removed pursuant to these orders will not be used by her except for these proceedings without leave of the court.
That orders are made in accordance with paragraphs 1, 2, 4 as amended, 6, 7 as amended, 8, 9, 10, 11, 12, and 13 of the Application in a Case filed 6 September 2016 as set out hereunder:-
1.That the application for this order is made returnable instanter, and determined ex parte.
2.(a) “applicant” means the applicant wife.
(b)“independent solicitor” means [Mr R] of ...
(c)“independent computer expert” means [Mr II] of ….
(d)“listed things” means all computers, including but not limited to hard drives operated on the premises.
(e)“premises” means the premises situate at and known as [FF Street Suburb GG] including, but not limited to suites 1 and 2 on level 1 of [FF Street St Suburb GG].
(f)“applicant’s lawyers” mean [Ms NN] solicitor and [Mr OO] barrister.
(g)“search party” includes the applicant’s lawyers, the independent solicitor and the independent computer expert.
…
4.That the respondents do permit the search party to enter forthwith upon the premises of [Ms Pesalaccio], or [B Pty Ltd] ACN …, or [C Pty Ltd] ACN …, or [D Pty Ltd] ACN …, or [Z Pty Ltd] ACN … , or [E Pty Ltd] ACN … at [FF St Suburb GG}, and to have access to all parts thereof as are used by the respondents whereby email records of the first respondent are stored on any weekday at any hour between 9am and 5pm and there:
(i)To search any computer, including any computer server and make a copy or digital copy of the email records of the first respondent on any computer hard drive and permit the computer expert or independent solicitor to remove any computer hard drive, computer and server from the premises for the purpose only of making a copy of such email records;
(ii)The respondents are required to do all things necessary to enable the search party to access the computers and servers, including opening or providing keys to locks, the provision of passwords to enable access to email accounts of the first respondent, and if necessary permit the independent computer expert to remove any computer hard drive, computer and server from the premises for the purpose only of making a copy of such email records;
(iii)To remove into the custody of the independent solicitor, to be held by him until further order, the copy of the email records of the first respondent.
…
6.That service of these orders and sealed copies of the application of the applicant and the affidavits in support of the application be served on the first respondent’s lawyer at the time of the execution of these orders.
7.That the independent solicitor shall personally supervise and facilitate the execution of orders (above) herein and in particular shall:
(a)Attend at all times during the execution of the order at the business premises;
(b)Prepare a record of the execution of the order, including a record of the computer, server and drives seized, and of the device or medium from which the copied data is stored;
(c)Maintain physical possession of the email records of the first respondent, pending further order of the court.
8.That the independent solicitor is restrained from releasing or allowing access to the seized computer or drives or any device or medium on which the copied data is stored other than by the computer expert and only for the purposes of complying with these orders, pending further order of the court.
9.That pending further order the applicant by herself, her servants and agents be otherwise restrained from accessing any information on or copied from a said server and drive.
10.That the court requests that the Marshall of this Court and officers of the Federal Police and/or the NSW Police assist in the execution of these orders, including by accompanying the applicant or her nominee on the service and execution of the orders.
11.That the respondents are restrained, except for the sole purpose of obtaining legal advice, until 4:30pm on 19 September 2016, from directly or indirectly informing any person of this proceedings or of the contents of this order.
12.That until 4:30pm on 19 September 2016, the respondents are restrained from destroying, tampering with, cancelling or parting with possession, power, custody or control of the computers and servers otherwise than in accordance with the terms of this order or further order of the court.
13.That pending further order that the husband be restrained from assaulting, molesting, attending upon or otherwise interfering with the wife.
ANNEXURE “B”
That orders are made in accordance with paragraphs 1, 6 as amended, 7, 8 as amended, 10 as amended, 11, 12, 13, 14, 15, 16 as amended, 17, 18, 19, 20, 21 and 22 of the Short Minutes of Orders filed in Court today signed by Johnston J and placed with the Court papers as set out hereunder:-
Orders to vary Orders of 7 September 2016
1.That Order 11 of the Ex Parte Orders made 7 September 2016 (being an order that the respondents are restrained, except for the sole purpose of obtaining legal advice, until 4:30pm on 19 September 2016, from directly or indirectly informing any person of this proceeding or of the contents of this order) be vacated.
…
Specific questions
6.That, on or before Friday 23 September 2016, in the Court’s implied jurisdiction having regard to the search and seizure orders that have been made, alternatively pursuant to Pt 13.26 of the Family Court Rules alternatively, the Wife does answer the specific questions attached and marked Annexure “A” to be provided in the first instance to the legal representatives only.
Documents to be produced
7.That on or before Friday 23 September 2016, in the Court’s implied jurisdiction having regard to the search and seizure orders that have been made, alternatively pursuant to rule 13.22 of the Family Court Rules concerning disclosure and discovery, alternatively, by Notice to Produce pursuant to rule 15.76 of the Family Court Rules (in the special circumstances of the case, this order to be taken as complying with all requirements for a valid Notice to Produce under the Rules), the Wife produce to the Husband and to the Third Parties:
(a)a true electronic copy of each of the emails and other documents (other than public records) exhibited to her affidavit which are held or were obtained by her in electronic form;
(b)a true electronic copy of any other emails and other documents (other than public records) obtained by or for her by the same or substantially same means;
(c)a true copy of any document recording any communication by the Wife of the password to any other person the password;
(d)a true copy of the footage on the circuit TV, referred to in paragraph [95] of the affidavit;
(e)any photograph or contemporaneous record of the state of the premises, room or drawer after the Robbery alleged on Thursday 18 June 2015;
(f)any record (in any document) of the Wife’s attendance on the police referred to in paragraph [95] of the affidavit, including any complaint and any police report,
(g)any document recording or referring to, or evidencing, any communications with any insurance company in respect of the robbery.
Further conduct of the proceedings
8.That having regard to the nature of the allegations made by the Wife in her Ex Parte Application, the substantive proceedings proceed by way of pleadings.
…
Next Court Attendance
10.The matter be listed for hearing [at 10.00 am] on 9 December 2016.
11.That the husband provide within 14 days a response to the wife's solicitors' letters as follows:
11.1[LL Law] 21 July 2015 to Pearson Emerson;
11.2[LL Law] dated 7 December 2015 to Pearson Emerson;
11.3Letter 16 March 2016 from MM Law to Pearson Emerson.
12.That the 3rd to 6th respondents provide within 28 days:
12.1Profit and Loss Statements, Balance Sheets, and Bank statements for the financial years ended 30 June 2012 to 30 June 2016, such documents as are in existence at today’s date.
13.That the 2nd and 7th respondents provide within 14 days:
13.1Tax returns for the financial years ended 30 June 2012 to 30 June 2016, such documents as are in existence at today’s date.
13.2Bank statements for the financial years ended 30 June 2012 to 30 June 2016.
14.That the wife file a further Application in a Case and supporting Affidavit within 21 days.
15.That the Respondents file any affidavit material in support of their application in a case filed in Court 19 September 2016 within 21 days.
16.That the applicant wife file and serve points of claim in the substantive proceedings on or before 17 October 2016.
17.That the respondents file and serve points of defence within a further 28 days.
18.That the computer expert do all acts and things to cause the following to occur:
18.1Transfer all the material scanned and saved to a single portable memory drive;
18.2Provide a copy of the memory drive to the solicitors for the first respondent and a copy to the solicitors for the 2nd to 7th respondents and provide a copy to the independent solicitor.
19.That order 4.11 made on 7 September 2016 be discharged.20.That the orders made 15 August 2016 be discharged and [the listing on] 26 September 2016 be vacated.
21.Documents produced to the wife pursuant to Order 12 and 13 are to be used by the wife for the purposes of these legal proceedings only and not to be disclosed to third parties other than legal representatives or other professional advisers.
22. Each party have liberty to apply on 3 days' notice.
That otherwise these proceedings are adjourned for hearing about the Anton Piller orders to 10.00 am on 9 December 2016.
That counsel will agree on a date for exchange of submissions and that copies thereof will be forwarded to Johnston J’s Associate … as soon as possible.
IT IS NOTED:
A.That the Independent Solicitor’s Report tendered by [Mr R] is marked as Exhibit 1.
ANNEXURE “C”
That orders are made by consent in accordance with paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 10, 11 and 12 of the Minute of Orders filed in Court today and signed by the parties and by me and placed with the court papers as set out hereunder:-
1.In respect of Order 6 of the Orders of 19 September 2016 (Specific Questions), the parties' legal representative be permitted to provide the Wife's Answers to their respective clients.
2.The Wife without admission undertakes to the Court not to access any of the Devices (as defined in the Schedule) or delete, or otherwise modify cause to be destroyed or deleted or otherwise modified, any data evidencing her access of the Husband's electronic devices or email accounts, until after compliance with Order 5.
3.Order that the Wife is to attend the offices of [JJ Lawyers] at …, [JJ], solicitors, by 11.00am on Monday, 12 December 2016 and deliver up to Ms KK, solicitor, the Devices.
4.On or before 14 December 2016 the Wife, by her solicitor, is to serve on the solicitor for the second to seventh respondents:
(a)A list of email addresses of any lawyers, or other professionals who act for or have previously acted for the Wife;
(b)A list of all passwords or PIN codes or passcodes for the Devices, including the Runes backup password, and any passwords necessary to gain access to the Devices.
5.On or before 14 December 2016 the second to seventh respondent's expert, [Mr G], digital forensic investigator ("the Expert") is to attend the offices of [JJ Lawyers] at .., [JJ], solicitors and make a forensic image of the hard drives of the Devices ("forensic images").
6.The Expert is to provide a copy of the forensic images to the Wife's solicitor.
7. The Expert is to retain another copy of the forensic images and
(a)upon giving the confidentiality undertaking in paragraph 87 of his report as contained in his affidavit dated 4 December 2016 ("Report") and complying with the protocol outlined in paragraphs 86-88 of his Report;
(b)The Expert be at liberty to inspect the forensic images for the purposes outlined in paragraphs 81, 82 and 83 of his report and providing a supplementary report to the second to seventh respondents with respect only to the wife's access to the emails to and from the email address "…" or any other email address held by any of the Respondents.
8. Deleted.
9.The Wife undertakes without admission not to access, assist with the access of, or cause to be accessed, any of the Husband's electronic devices or email accounts.
10.The Wife file by 20 January 2017 an Amended Points of Claim that identifies the facts, matters and circumstances relied upon for the relief sought in the Further Amended Initiating Application.
11.The objections to the subpoenas issued by the Wife be adjourned to a date to be fixed following the hearing of the Anton Piller application with the parties taking objection to file and serve submissions by 27 January 2017.
12.The Anton Piller application be adjourned to 2 and 3 February 2017.
Schedule:
13. In these Orders, the "Devices" means the following items:
(a)the Wife's laptop as referred to by the Wife in her affidavit of 30 September 2016 in respect to the Specific Questions;
(b) The Wife's Ipad;
(c)Any other device in which the Wife accessed or recorded the Husband's emails from the email address …;
(d)Any portable or external hard drive containing data of (a)-(c) above; and
(e) Any backups of items (a)-(d) referred to above.