Varelis v Rispoli - [2023] WASC 288

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   VARELIS -v- RISPOLI [2023] WASC 288
CORAM:   HOWARD J
HEARD:   27 JULY 2023
DELIVERED          :   27 JULY 2023
PUBLISHED           :   1 AUGUST 2023
FILE NO/S:   CIV 2132 of 2019
BETWEEN:   VICTORIA VARELIS
Plaintiff

AND

ROSE-MARIE JOYCE RISPOLI
First Defendant

ALISON DAPHNE LOUISE RISPOLI
Second Defendant

STEPHANIE FRANCESCA LEE RISPOLI
Third Defendant

ALISON DAPHNE LOUISE RISPOLI
Plaintiff by counterclaim

VICTORIA VARELIS
Defendant by counterclaim

Catchwords:

Breach of Harman obligation - Where defendants used documents produced in a subpoena to make application to the Registrar of Births, Deaths and Marriages - Defendants sought nunc pro tunc order to be released from the Harman obligation - Whether special circumstances justify the granting of leave - Application dismissed

Legislation:

Births, Deaths and Marriages Registration Act 1998 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr I R Gillon
First Defendant	:	Mr B W Ashdown
Second Defendant	:	Mr B W Ashdown
Third Defendant	:	Mr B W Ashdown
Plaintiff by counterclaim	:	Mr B W Ashdown
Defendant by counterclaim	:	Mr I R Gillon

Solicitors:

Plaintiff	:	Lawton Gillon
First Defendant	:	Forbes Kirby
Second Defendant	:	Forbes Kirby
Third Defendant	:	Forbes Kirby
Plaintiff by counterclaim	:	Forbes Kirby
Defendant by counterclaim	:	Lawton Gillon

Case(s) referred to in decision(s):

Harman v Secretary of State for the Home Department [1983] 1 AC 280
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67

HOWARD J:

(This judgment was delivered extemporaneously on 27 July 2023 and has been lightly edited for clarity.)

These proceedings were commenced by writ on 27 June 2019, and the defendants filed defences and counterclaims on or about 22 August 2019. (Although they are also counterclaimants, I will refer to them from here as the defendants).
As accepted by counsel, and is obviously the case, the question of whether the plaintiff was the de facto spouse of the deceased, Biagio Roberto Rispoli, is a central issue to be resolved in these proceedings and has been since no later than the filing of the defences and the counterclaims. The deceased was the father of the defendants.
It follows that it was a live issue at the time when two subpoenas were issued by the defendants to the Department of Transport in February 2021 and to Sussan Corporation in March of 2021. Documents were returned pursuant to those subpoenas, and it appears from the affidavit material filed by the defendants that they were given notice of the returned documents by their then solicitors in about the middle of May 2022. The returned documents included the three documents which are the subject of the defendants' present application and are set out in the defendants' Chamber Summons dated 21 March 2023 at proposed Order 1(a), (b), (c) (and are set out more fully at par 13 of the defendants' submissions filed 17 May 2023).
Those three documents were used by the defendants in an application to the Registrar of Births, Deaths and Marriages on about 11 August 2022 and were attached to statutory declarations made by each of the defendants and by the defendants' mother.
On the defendants' material, on or around 14 November 2022 they became aware, by a communication from their present lawyers, that they, the defendants, may have breached the Harman obligation[1] in respect of those three documents. The defendants on about that date received an email from the Registrar of Births, Deaths and Marriages to this Court dated 10 November 2022.
[1] Harman v Secretary of State for the Home Department [1983] 1 AC 280.
That issue of the Harman obligation, I am told and accept, was agitated before a Registrar of this Court on 1 December 2022, and the Registrar made orders at that point in time, which I do not need to recite. I am told by counsel for the defendants, and accept, that the defendants took advice and considered their position in November and December, and then after the Christmas and New Year break. That led to the filing of the Chamber Summons which is before me this afternoon dated 21 March 2023.
That summons seeks that the defendants be released from the Harman obligation with respect to the three documents obtained pursuant to the subpoenas issued for the purpose of using those documents in support of their application to the Registrar of Births, Deaths and Marriages to correct the death certificate issued in respect of Biagio Roberto Rispoli.
They seek that order to take effect as and from 8 August 2022, so effectively a nunc pro tunc order, and then, thirdly, there be no orders as to the costs of this application.
In support of their application, the defendants read, without objection, five affidavits:
1.affidavit of Rose‑Marie Joyce Rispoli made 3 March 2023;
2.affidavit of Alison Daphne Louise Rispoli made 3 March 2023;
3.affidavit of Stephanie Francesca Lee Rispoli made 3 March 2023;
4.affidavit of Kerry Lorraine Rispoli made 3 March 2023; and
5.an affidavit from their solicitor, Mitchell Terry Tolcon, made 26 July 2023, which was received by the court after hours 26 July 2023.
While dealing with the evidence, I note that the plaintiff read, again without objection, an affidavit of the plaintiff made 17 April 2023 and also sought to rely on two previous affidavits of the plaintiff of 22 July 2019 and 13 August 2019.
The principles to be applied are well‑established and were not in dispute at the hearing, and I can refer only to the decision of the Court of Appeal in Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 and, in particular, to the paragraphs commencing at [69]. The principle or consideration which appears to me to be most relevant to the application is that contained in [72] which is that:
The power to dispense with or modify the Harman obligation is not freely exercised, but will be exercised if there are special circumstances.
And then at [74] the considerations that may be relevant to the exercise of the discretion are set out. The most relevant of those is in (g):
[T]he likely contribution of the document to achieving justice in another proceeding.
And at [75] the Court of Appeal said that:
The last of these considerations [from [74(g)]] has been recognised as being the most important.
The Court of Appeal went on to say in that paragraph:
It has been said that special circumstances will fairly readily be found where it is established that the use of documents discovered in proceedings is reasonably required for the purpose of doing justice between the parties in other proceedings.
That I have power to make the release order nunc pro tunc is also not in doubt, and I refer to [100] of Murray Riverside in that respect.
In deciding whether to exercise my discretion I have considered the exercise at two points in time. The first is whether I would grant the defendants a release as at today's date, that is, with all that has occurred.
In short, I would not be minded to exercise the discretion as at today's date, and that is largely because, as things stand, the Registrar of Births, Deaths and Marriages by letter dated 13 March 2023, which is annexed as 'VV1' to the affidavit of the plaintiff made 17 April 2023, makes plain that the application which was made by the defendants to the Registrar is on hold pending the outcome of the matters which are to be determined in this Court.
I interpose to say that I read the Registrar's letter as including on hold the question of whether the plaintiff was the de facto spouse of the deceased. Counsel for the defendants has taken me to the correspondence that is attached to Mr Tolcon's affidavit and submitted to the effect that the defendants are seeking to have the Registrar reconsider the position put in her letter of 13 March 2023. I do not know whether they will be successful or not in agitating that issue with the Registrar.
I can say, for what it is worth and with respect, that it does seem to me that the position adopted by the Registrar in her letter of 13 March 2023 is readily understandable and sensible.
The question of whether I would have released the defendants prior to their use of the documents in August 2022 is a relevant consideration as identified by the Court of Appeal at [104] of Murray Riverside. Of course, it is always difficult to conduct that hypothetical exercise, but it seems to me that the Court would not have been likely minded to release the defendants prospectively.
I accept on the defendants' evidence that they were not aware of the Harman obligation and that they did not in that sense intentionally breach the Harman obligation.
However, it is plain that the defendants knew that the documents had come into their possession via subpoenas and that they were compulsory processes of the court. I make no further finding about their states of mind than those two findings.
The reason I consider that the Court would not have been minded to exercise its discretion at that time is that, in my view, it was inevitable that the position reached now by the Registrar's letter of 13 March 2023 would have been reached even if leave had been given prospectively back in August of 2022. That is, as counsel for the defendants rightly accepted, with respect, the Registrar would inevitably have become aware not just of these proceedings, but that a central issue in these proceedings was whether the plaintiff was the de facto spouse of the deceased.
In those circumstances I consider that it most unlikely, having regard to the consideration set out in [74(g)] of Murray Riverside, that a Court considering the matter prospectively would have thought that the documents would have made a significant enough contribution to the Registrar's consideration of an application under s 50 of the Births, Deaths and Marriages Registration Act 1998 (WA). I say that because I consider that it was most likely that the position reached by the Registrar's letter of 13 March 2023 would have been reached in 2022 or would have appeared to the Court then as being the most likely outcome.
Counsel for the defendants submitted that an interim position was possible; that is, that the documents would have made a significant contribution to the question of whether the Registrar opened a s 50 inquiry and may have led to some provisional correcting or notation of the death certificate. With great respect, I am not sure that was a likely possibility, and even if it be accepted that it was a possible outcome, in my view, the Court would most likely have considered it was not significant enough to release the defendants from the Harman obligation.
I am also fortified in that conclusion by the very proper submission made by counsel for the defendants to the effect that the primary position taken by the defendants with the Registrar is that there was an error in process or in the reporting under s 42 of the Births, Deaths and Marriages Registration Act and that was the primary basis for the application.
That being so, there is evidence from the funeral director, or there is a letter from the funeral director, which is annexed in the defendants' affidavits, to the effect that there was an error of process by the funeral director in providing certain information to the Registrar. That, of course, was available to the defendants in August of 2022 and remains available to them now. In saying that, again, I express again my view that the present position adopted by the Registrar seems to me, with respect, to be entirely understandable and sensible.
For those reasons I would dismiss the Chamber Summons dated 21 March 2023.
I understand from counsel for the defendants that a copy of these reasons will be supplied by the defendants to the Registrar of Births, Deaths and Marriages when available.
Following delivery of the above reasons, the plaintiff applied for her costs of the application, including reserved costs, on an indemnity basis. It was submitted for the plaintiff that this application was effectively the defendants seeking to be relieved of their contempt in breaching their Harman obligation and on a contempt application costs should be awarded on an indemnity basis.
The defendants accepted they ought to pay the costs of the application but resisted paying them on an indemnity basis.
After argument, I ordered that the defendants pay the plaintiff's costs of the application, including any reserved costs, on a non-indemnity basis. In my view, while the defendants' application was a difficult one for them to succeed, it was nonetheless sufficiently arguable that it could not be said that properly advised the application ought not to have been brought. Further, in my view, the defendants' application is different from their defending a contempt application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
1 AUGUST 2023