• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

File Number(s): 2023/00229469

JUDGMENT

1. By Notice of Motion filed on 24 April 2026, the Applicant (and Plaintiff in the proceedings), Gratory Pty Ltd (recs and mgrs apptd), seeks an order pursuant to s 192A of the Evidence Act 1995 (NSW) that certain documents produced in these proceedings by the Fifth Respondent (and Second Defendant), La Serenissima Pty Ltd (in its own right and as trustee for the Pastrello Family Trust), may be tendered by the Applicant and admitted for all purposes without any limitation prescribed by s 87 of the Civil Procedure Act 2005 (NSW) (the CPA). The Fourth Respondent (and First Defendant), Mr Robert Pastrello, opposes this order. Although the Applicant originally also sought orders against three other respondents, that aspect of the dispute has fallen away and La Serenissima and Mr Pastrello are the only active Respondents. Accordingly, I will refer to them as the Respondents.

2. In support of its motion, the Applicant read the affidavit of Mr Stephen Mattiussi, the solicitor on the record for the Applicant, and tendered the exhibit to that affidavit. Mr Pastrello read the affidavit of his solicitor, Ms Brittany Everett. Those affidavits were read without objection.

Background

3. There is little factual dispute between the parties.

4. The Applicant is a venture which was founded and operated by Mr Pastrello’s father. It owns and operates the Eagle Hawk Hotel (the Hotel), a licensed hotel business located in the New South Wales town of Sutton near the northern border of the Australian Capital Territory. The Applicant alleges that Mr Pastrello, while operating the Hotel in the aftermath of his father’s death, committed fraud and director defalcation.

5. As part of ordinary pre-trial procedures, the Respondents served their affidavit evidence under the cover of an email from their solicitors that stated, inter alia:

“Further, each of Robert Pastrello and La Serenissima deny the allegations made in these proceedings against them. In giving evidence, however, we are concerned to ensure that Robert Pastrello has the opportunity to rely upon the common law privilege against self-incrimination. That is because the nature of the claim is one which, if established, may expose him to the possibility of prosecution.

…

Accordingly, we do not intend to serve any affidavit from Robert Pastrello (but may call him orally in the proceedings).”

6. The parties have corresponded in relation to any attempt by Mr Pastrello to give oral evidence, but that is not a matter that I need to deal with presently.

7. On 25 November 2024, Slattery J made the following orders in related proceedings which have since been resolved:

“8 DIRECTS each of Robert Pastrello and La Serenissima Pty Ltd to produce to the solicitors of the Receivers and Managers, by 4pm on 29 November 2024, copies of all statements or transaction listings for accounts with Authorised Deposit-taking Institutions held in La Serenissima’s name, solely or jointly with others, or held by others on La Serenissima’s behalf, for the period 1 July 2012 to date, including but not limited to:

(a) ANZ bank account numbered [XXXX], BSB [XXXX]; and

(b) ANZ bank account numbered [XXXX], BSB [XXXX].

9 DIRECTS each of Robert Pastrello and La Serenissima to produce to the solicitors of the Receivers and Managers, by 4pm on 5 December 2024, for the period 1 July 2012 to date, copies of all La Serenissima:

(a) management accounts;

(b) financial statements and tax returns; and

(c) Business Activity Statements.

10 DIRECTS each of Robert Pastrello and La Serenissima to produce to the solicitors of the Receivers and Managers, by 4pm on 5 December 2024, copies of all security agreements granted by La Serenissima during the 18-month period ending 11 November 2024.

11 NOTES that each of Robert Pastrello and La Serenissima object to complying with orders 8, 9 and 10 on the grounds that some or all of the information required to be disclosed may tend to prove that either or both of them has engaged in culpable conduct within the meaning of s 87 of the Civil Procedure Act 2005 (NSW).

12 NOTES that the Court has determined that there is a reasonable basis for the objection and requires that the documents be disclosed to the Receivers and Managers and at the time of production of the documents the Court will cause Robert Pastrello and La Serenissima to be given certificates in respect of the information contained within those documents under s 87 of the Civil Procedure Act 2005 (NSW).”

Section 87 of the Civil Procedure Act 2005 (NSW)

8. Section 87 of the CPA provides protection against self-incrimination in circumstances where an application is made for, or the Court makes, an order for production against a person and that person objects to the making of such order on the ground that the evidence required by the order may tend to prove that the person has engaged in culpable conduct: CPA s 87(2). That was the precise circumstance in which Slattery J made orders 8 and 9 set out above.

9. Pursuant to CPA s 87(8), relevantly, any document obtained as a direct or indirect consequence of the person having provided such evidence cannot be used against the person in civil proceedings.

10. Pursuant to CPA s 87(5), the Court is to cause a person to be given a certificate if the Court overrules an objection to the making of an order for production. As is plain from Slattery J’s orders, his Honour was satisfied that the issuing of such a certificate was justified.

11. Once the documents were produced, two certificates, relating to orders 8 and 9 respectively, were sealed by Slattery J in the related proceedings. Both certificates, albeit relating to different orders made on 25 November 2024, contained the following text:

“This Court certifies under section 87 of the Civil Procedure Act 2005 (NSW) that evidence in these proceedings being documents produced by Robert Pastrello and La Serenissima Pty Ltd pursuant to the order for production…”

Correction of certificates

12. On 24 October 2025, subpoenas were issued to several banks at the Applicant’s request. On 14 November 2025, after each of those banks produced documents responsive to those subpoenas, the Respondents filed a Notice of Motion seeking orders that the subpoenas be set aside together with costs. The motion was heard by Hammerschlag CJ in Eq on 9 and 18 March 2026.

13. During the hearing before me, the parties placed much emphasis on the transcript of what occurred. Before considering that transcript, it is necessary to note the orders made by Hammerschlag CJ in Eq on both occasions. Relevantly, his Honour made, on 9 March 2026, an order that the second certificate dated 30 January 2025 in respect of those documents produced by La Serenissima was to be corrected by deleting the words “La Serenissima Pty Ltd”. It is unclear whether that amendment was made solely on the basis that such a certificate could not be granted to a body corporate.

14. Nine days later, on 18 March 2026, his Honour made, relevantly, the following two orders:

“4. Correct the certificate dated 20 December 2024 (a copy of which is annexed) (Certificate) by deleting, nunc pro tunc, the words in the body of the certificate ‘and La Serenissima Pty Ltd’, and record that against that entity the order for production has effect, nunc pro tunc.

5. Record that the documents have been produced by La Serenissima Pty Ltd as recorded in the certificate, and the Applicant has immediate access to those documents.”

15. The outstanding prayer for relief in the Applicant’s Notice of Motion seeks the following:

“3. An order pursuant to section 192A of the Evidence Act 1995 (NSW) that the following documents produced in this proceeding by [La Serenissima] may be tendered by the Applicant and admitted for all purposes, without any limitation prescribed by section 87 of the Civil Procedure Act 2005 (NSW):

(a) all documents produced by La Serenissima Pty Ltd pursuant to Order 8 of the Orders made by Slattery J dated 25 November 2024;

(b) all documents produced by La Serenissima Pty Ltd pursuant to Order 9 of the Orders made by Slattery J dated 25 November 2024;

(c) all documents contained in packet S-4 produced in answer to the subpoena dated 24 October 2025 addressed to National Australia Bank Ltd;

(d) all documents contained in packet S-5 produced in answer to the subpoena dated 24 October 2025 addressed to Macquarie Bank Limited;

(e) all documents contained in packet S-6 produced in answer to the subpoena dated 24 October 2025 addressed to the Commonwealth Bank of Australia; and

(f) all documents contained in packet S-7 produced in answer to the subpoena dated 24 October 2025 addressed to Westpac Banking Corporation.”

The Applicant’s submissions

16. The Applicant’s argument as to why it is entitled to use, against Mr Pastrello, the documents produced in the proceedings hinges on a discrete point, namely, that he is not entitled to any protection against self-incrimination from documents produced by La Serenissima alone. Both parties accept that Mr Pastrello is not entitled to such protection if documents were only produced by La Serenissima. They disagree as to the provenance of those documents. The Applicant contends that the documents were produced by La Serenissima alone. The Respondents contend that the documents were produced by both La Serenissima and Mr Pastrello. If the Respondents are correct, Mr Pastrello is entitled to the protection of CPA s 87.

17. The key matter the Court must determine is whether the documents were produced by both Respondents or only one of them. If the Applicant persuades me that only La Serenissima produced the documents, its motion will succeed.

18. The limbs of the Applicant’s argument are as follows:

19. the orders for production were directed to both Mr Pastrello and La Serenissima, such that they should be treated as joint and several obligations that bound both Mr Pastrello and La Serenissima jointly and individually;

20. La Serenissima produced all of the documents, and this was confirmed by the terms of the orders made by Hammerschlag CJ in Eq on 9 and 18 March 2026; and

21. the email from Colquhoun Murphy, solicitors for the Respondents, to Mr Mattiussi on 8 January 2025, which concerned order 9 of the short minutes, contained what was described as orders “which required La Serenissima to deliver … documents to the receivers and managers and that, our client produces those documents” (emphasis added). The Applicant emphasises the use of the singular in that email.

The Respondents’ submissions

19. In response, the Respondents maintain the following:

20. the documents, described by the Respondents as the “Category 1 Documents”, were jointly produced by the Respondents pursuant to orders 8 and 9 made by Slattery J in the related proceedings. Those orders envisaged joint, rather than joint and several, production by both Respondents;

21. the email of 8 January 2025 was not sent only by Mr Pastrello but by solicitors acting for both Respondents. The documents produced in compliance with order 8 were sent the same way on 3 February 2025; and

22. the documents produced by the banks in answer to subpoenas issued to them, described as the “Category 2 Documents” in the Respondents’ written submissions, are bound by the same certificates because they were obtained as a consequence of the Respondents’ joint production of the order 8 documents.

Consideration

20. I initially considered that the primary means to determine the provenance of the documentation is to properly characterise the orders made by Slattery J. I therefore granted the parties an opportunity to file further written submissions on the construction of the orders in question.

21. The principles concerning the construction of orders were recently set out in Henderson v Harvey [2026] NSWCA 56 at [40(d)], where Griffiths AJA (with whom McHugh JA and Harrison AJA agreed) stated the following:

“The terms of an order (or undertaking) are to be given a sensible meaning, consistent with the actual terms, but considerations of context and purpose are also relevant (Pang at [57] and [59], Fairbrother at [57]). The task of construction requires an objective determination of meaning giving primacy to the text, but read in light of the context, purpose and the surrounding circumstances known to the parties (Fairbrother at [57] and see also Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 at [72]-[79] per Leeming JA, Gleeson and White JJA agreeing), including correspondence between the parties’ legal representatives (Pang at [59]-[62]).”

22. The Applicant argues that La Serenissima had a personal obligation and complied with it personally. It submits that the situation is analogous to money judgments being given against multiple parties where each obligor is individually responsible even if their obligation is also joint. The Applicant asserts that for the purposes of Court orders, whether the obligation is joint or joint and several is irrelevant, as each party is individually responsible for compliance and the orders are enforceable against any single obligor. The Applicant points to the use of the words “each of” in orders 8 and 9 as conveying an individual obligation on each Respondent.

23. The Respondents’ position on this issue seems to have converged somewhat with the Applicant’s position that each of orders 8 and 9 on 25 November 2024 should be treated as having imposed a joint and several obligation. There remains a divergence concerning the identity of which party or parties produced the documents. The Respondents contend that they jointly produced the documents and that the joint production was not several as between them. In this regard, the Respondents state that the Applicant has not attempted “to separate out the documents produced as between those [Respondents]”.

24. In reply, the Applicant submits that the Respondents’ submissions assume rather than demonstrate that the documents were produced jointly. It buttresses that argument by reference to the notations made by Hammerschlag CJ in Eq on 9 and 18 March 2026 recording “that the documents have been produced by [La Serenissima] as recorded in the certificate”. I assume the Applicant refers to part of the Respondents’ written submissions whereby they state that the Category 1 Documents “were jointly produced by the Respondents”. Mr Lloyd SC, who appeared for the Respondents, submitted that if such documents were jointly produced, they cannot be relied upon in the case against Mr Pastrello.

25. In determining this matter, I have had careful regard to the evidence on which each party relies. The Applicant largely relies on three evidential sources in support of its construction of the orders in question. Those are:

26. the email sent by the Respondents’ solicitors on 8 January 2025 which refers to “our client” in the singular. The Applicant contended that this email identifies La Serenissima, rather than Mr Pastrello, as the producing party;

27. an email from Ms Everett of Colquhoun Murphy dated 3 February 2025 transmitting the order 8 documents. This document is largely neutral. There is no reference to Mr Pastrello having produced the documents, but neither is there reference to La Serenissima doing so alone; and

28. the orders of Hammerschlag CJ in Eq on 9 and 18 March 2026, which record that the documents had been produced by La Serenissima as recorded in the certificate.

29. In support of their argument concerning the orders, the Respondents rely upon the following:

30. both certificates were issued in terms that the certified documents were being “produced by Robert Pastrello and La Serenissima” pursuant to orders 8 and 9 respectively. The proposition that the certificates on their face record joint production by both Respondents is central to the Respondents’ argument;

31. the documents were produced by the solicitor acting for both Respondents in each proceeding. Accordingly, the physical act of production was indivisible as between the two Respondents;

32. in the transcript of the hearing before Hammerschlag CJ in Eq on 18 March 2026, Mr Norton of Counsel, who appeared for the Respondents, submitted that the documents were jointly produced. Of course, this was an assertion (doubtless made on instructions) but, if relied upon by the Respondents, it would not, in my opinion, constitute evidence of joint production; and

33. during the 18 March 2026 hearing, Hammerschlag CJ in Eq acknowledged the Respondents’ contention that they had jointly produced the documents. It appears that his Honour proceeded on the basis that the certificates covered both parties but that La Serenissima did not need any such protection.

34. I consider that the amended certificates and the recording made by Hammerschlag CJ in Eq are significant factors in the Applicant’s favour. However, I also attach significance to the fact that, as set out at [11] above, the certificates stated that the documents were produced by both Respondents.

35. There is also the question of who prepared the CPA s 87 certificates. On 18 March 2026, the following exchange took place between Mr Katekar SC and Hammerschlag CJ in Eq:

“Katekar SC: … We would say that La Serenissima produced those documents and the certificate should not have been given to [Mr Pastrello] in the first place, but may be that is a matter for trial.

His Honour: I thought you jointly prepared the certificate. Who prepared the certificate?

Katekar SC: I don’t honestly know the answer to that. What I’m suggesting is probably not something for your Honour necessarily to resolve right now, but it might be a matter…”

29. The question Hammerschlag CJ in Eq raised with Mr Katekar SC was not addressed orally by the Applicant’s Counsel at the hearing of the motion. However, I note that Mr Mattiussi states in his affidavit that the Respondents’ solicitors, on 8 January 2025, indicated that the “first certificate” was prepared by the Respondents’ solicitors. This goes some way towards answering his Honour’s question. Later in the same affidavit, Mr Mattiussi states that it was in fact the Respondents’ solicitors who prepared the second CPA s 87 certificate.

30. The Applicant’s solicitors do not appear to have interrogated this matter, and the certificates, as drafted by the Respondents’ solicitors, were issued by Slattery J (albeit later amended, no doubt when the potential significance of this issue was understood).

31. I consider that the evidence goes both ways and is not of great assistance to either party.

32. I do not accept the Applicant’s submission that the Respondents have assumed, but not demonstrated, that the documents were produced jointly. Such a submission seeks to place the onus in this matter on the Respondents to disprove sole production by La Serenissima. The question before me is not whether the Respondents have demonstrated that the documents were jointly produced. It is whether the Applicant has persuaded me that the documents were produced by La Serenissima alone.

33. The Applicant has not persuaded me that the documents were produced only by La Serenissima. In the absence of establishing that the documents were produced by La Serenissima alone, the application must be dismissed.

Orders

34. I make the following orders:

35. The Applicant’s Notice of Motion filed on 24 April 2026 is dismissed.

36. The Applicant is to pay the Respondents’ costs of the motion.

**********