Aslan v Pucci (No 2)

Cases Cited: Australian Medi-Care Company Ltd v Hamilton Pharmaceutical Pty Limited (No 3) [2008] FCA 976
Bondelmonte & Ors v Bondelmonte [2017] FamCA 924
Clifford v Vegas Enterprises Pty Ltd [2009] FCA 1204
Griffiths and Beerens Pty Ltd v Duggan (No 2) [2008] VSC 230
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Holpitt Pty Ltd v Varimu Pty Limited (1991) 29 FCR 576
iSam Securities (UK) Ltd v Press (No 2) [2025] NSWSC 768
Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 554
Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 21] [2023] WASC 169

Category: Procedural rulings

Parties: Dina Aslan (Plaintiff)
Enrico Pucci (First Defendant)
Ross Pucci (Second Defendant)
Alfredo Pucci (Third Defendant)
Nicholas Tropea (Fourth Defendant)
Causbrook & Associates (Fifth Defendant)
Alfred Dean Pucci (Sixth Defendant)
Narghiza Ergashova (Seventh Defendant)
John-Paul Pucci (Eighth Defendant)
Shirina Holmatova (Ninth Defendant)
Patricia Ficarra (Tenth Defendant)
Berta Dias (Eleventh Defendant)
Dominic Carbone (Twelfth Defendant)
Sydney Law Practice Pty Ltd (Thirteenth Defendant)
Jason Michael (Fourteenth Defendant)
Unique Property Real Estate (Fifteenth Defendant)
Integrated Programmed Services Pty Ltd (Sixteenth Defendant)

Representation: Counsel:
D Allen (First, Second, Third, Sixth, and Sixteenth Defendants)
Solicitors:
Plaintiff (self-represented)
Stewart & Associates (First, Second, Third, Sixth, and Sixteenth Defendants)
N Ergashova (self-represented and representing the Ninth Defendant)

File Number(s): 2025/186499

Publication restriction: Nil

JUDGMENT

1. The plaintiff sues sixteen defendants in the tort of conspiracy.

2. On 23 May 2025, Rothman J made freezing orders on an ex parte basis in respect of a number of those defendants.

3. On 14 and 15 July 2025, I heard the application by the plaintiff for the continuation of those freezing orders.

4. In the course of the hearing, the persons known as the Pucci defendants (the first, second, third, sixth and sixteenth defendants) who were represented by Mr Allen of counsel objected to parts of the affidavits relied on by the plaintiff on the basis that some of the material referred to in the plaintiff’s affidavits represented a breach of the Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 (“Hearne v Street”) obligation (also known as the Harman undertaking).

5. I delivered an ex tempore judgment on 15 July 2025 dealing with the application for freezing orders.

6. On the plaintiff’s case she was scammed, cheated or defrauded into lending the money to the first defendant in circumstances in which the first defendant and other members of his family had fraudulently conspired to induce her to hand over the money.

7. Almost immediately after the plaintiff became aware of this, she commenced proceedings in the District Court.

8. On 14 May 2021, she obtained a judgment in the District Court albeit the matter has never proceeded to a hearing.

9. During the course of those proceedings, the plaintiff obtained access to certain of the first defendant’s bank statements (“bank statements”).

10. On her case, these bank statements, at least in part, show what happened to her money and tend to establish that the first defendant immediately took the money out of his bank account and used it for his own purposes.

11. During the course of the hearing, the Pucci defendants objected to the use of the bank statements on the basis that such use was in breach of the Hearne v Street obligation. Although the plaintiff obtained access to the documents during the District Court proceedings, there was never any hearing in the District Court and the documents were not otherwise used in those proceedings.

12. After hearing argument on the objection (that is the Pucci defendants’ submissions), I indicated that I would consider the matter further and indicate my ruling at the time of delivering my judgment.

13. During the course of delivering my ex tempore judgment, I indicated to the parties that I would release the plaintiff from the Hearne v Street undertaking.

14. These are my reasons for doing so.

15. I start by acknowledging that as the plaintiff is not represented, she had no knowledge of the undertaking and no capacity to make any submissions in these proceedings as to why she should be excused from the undertaking.

16. The Pucci defendants’ submissions were simply put, being:

17. The plaintiff is bound by the undertaking;

18. This Court should not excuse her from the undertaking (as the bank statements were obtained through the District Court proceedings); and

19. In any event, there are no special circumstances.

20. As is well known, if special circumstances exist, the Court may release a party from the Hearne v Street obligation (see Springfield Nominees Pty Ltd v Bridgelands Securit**ies Ltd (1992) 38 FCR 217, per Wilcox J at 225).

21. The principles which apply in determining whether the special circumstances exist have recently been succinctly summarised by Peden J in iSa**m Securit**ies (UK) Ltd v Press (No 2*)* [2025] NSWSC 768. I adopt what her Honour says as follows:

“[7] If the Court does find special circumstances, then it has a broad discretion as to whether or not to grant leave: Papantoniou v Stonewall Hotel Pty Ltd (2018) 19 BPR 38,547 at 38,553 (Barrett AJA, Beazley P and Ward JA agreeing).

[8] ‘Special circumstances’ does not require extraordinary factors. Instead, ‘good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes.’: Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 at [31] (Branson, Sundberg and Allsop JJ).

[9] In Springfield Nominees at 225, Wilcox J identified matters which may be relevant in determining whether to exercise the discretion:

(1) the nature of the document;

(2) the circumstances under which the document came into existence;

(3) the attitude of the author of the document and any prejudice the author may sustain;

(4) whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;

(5) the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);

(6) the circumstances in which the document came into the hands of the applicant; and

(7) most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.”

Are there special circumstances?

19. I consider that there are special circumstances for the following reasons:

20. The paragraphs of the plaintiff’s affidavits to which the Pucci defendants object are those in which the plaintiff refers to the content of the bank statements. The bank statements are documents which came into the plaintiff's possession in the District Court but they are also documents which are obviously in the possession and control of the first defendant.

21. The bank statements are documents which the plaintiff could, through the processes of this Court, obtain from the first defendant at any stage. They are documents which the plaintiff could also obtain directly from the bank through the issue of subpoenas should she choose to do so.

22. Bank statements are documents commonly produced in contested civil litigation and are not generally subject to any form of privilege, although the entitlement to obtain access to such documents must depend on their relevance to the issues in the proceedings.

23. There is no prejudice to the bank or any other reason why the bank would resist production of such bank statements in these proceedings.

24. The bank statements contain personal data but the personal data is not just relevant to the issues in the proceedings, it is particularly important evidence in these proceedings.

25. The plaintiff is unrepresented and was unaware of her implied undertaking at the time she prepared the affidavits. Further, the plaintiff seeks to use the bank statements in proceedings that partially arise out of similar facts to the District Court proceedings;

26. There is no practical way in which the plaintiff could now obtain a release from her undertaking in the District Court.

27. In all these circumstances, I am satisfied that the special circumstances exist.

Should leave be given to use the bank statements in these proceedings?

21. In my view, I have the power to and should grant leave to the plaintiff to rely on the documents even though the documents were obtained through the District Court proceedings.

22. It may be that the usual course is for the party to approach the Court through which the documents were produced to obtain a release from the undertaking (see for example Commissioner of Taxation v Rawson Finances Pty Ltd [2015] FCA 628 per Flick J) but in my view there may be circumstances in which another Court may grant leave to rely on documents subject to the undertaking.

23. I say this for the following reasons:

24. This Court is a superior court of inherent jurisdiction;

25. As set out in s 56 of the Civil Procedure Act 2005 (NSW) (“CPA”), the overriding purpose of the Act and the rules of the Court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the Court must seek to give effect to that overriding purpose when it exercises any power or interprets any provisions of the Act or rules.

26. Further, having regard to s 58 of the CPA in determining whether to make any order or directions, the Court must seek to act in accordance with the dictates of justice.

27. The Court may make orders which facilitate the administration of justice and the objects of the CPA.

28. In circumstances in which the District Court proceedings have come to an end, there is no practical and efficient way in which the plaintiff could approach the District Court to obtain a release from the undertaking. Further, there is no suggestion by the Pucci defendants that, if the plaintiff could approach the District Court, a release would not be obtained.

29. There are ample other cases where courts have assumed or accepted a power to release a party from the obligation. See, for example, Bondelmonte & Ors v Bondelmonte [2017] FamCA 924; Holpitt Pty Ltd v Varimu Pty Limited (1991) 29 FCR 576; Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436; Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 554; Australian Medi-Care Company Ltd v Hamilton Pharmaceutical Pty Limited (No 3) [2008] FCA 976; Clifford v Vegas Enterprises Pty Ltd [2009] FCA 1204; Griffiths and Beerens Pty Ltd v Duggan (No 2) [2008] VSC 230; Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 21] [2023] WASC 169.

30. In Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436, Tamberlin J said at [20]:

“There is a clash of two important public interest considerations in this case. First, there is the public interest in protecting the discovery process in the interest of encouraging openness and frankness in discovery made in the County Court proceeding by way of consistent and effectively enforced assurance to the party faced with compulsory discovery that the documents will not be used for any other purpose than the purpose for which they were discovered in that court. Second, there is the competing important public interest in the due and proper administration of justice in the proceedings before this Court by ensuring compliance with its orders. In these circumstances if the document was one which ought to have been discovered I am not persuaded either as a matter of power, discretion or comity that release of the undertaking must or should be first obtained from the County Court.”

24. In my view this Court has the power to release the plaintiff from the implied obligation and should grant leave to the plaintiff to rely on the bank statements. The refusal to grant leave would frustrate the processes of this Court and may preclude the plaintiff from relying on documents which contain important evidence in these proceedings.

25. In the circumstances I release the plaintiff from the Hearne v Street obligation, limited to the extent of use in these proceedings only, and grant the plaintiff leave to rely on the documents obtained in the District Court for the purposes of these proceedings.

26. I reject the objections made by the Pucci defendants arising out of those paragraphs in the plaintiff’s affidavits in which reference is made to the documents obtained in the District Court.

27. There were no other objections made by the Pucci defendants, and thus, this ruling applies to all of the objections made by the Pucci defendants.

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