Federal Court of Australia

Krejci (liquidator) v Panella, in the matter of Richmond Lifts Pty Ltd (in liq) (No 4) [2025] FCA 1209

ORDERS

THE COURT NOTES THAT:

1.    In these orders, the following definitions apply:

“Blue phone” means the blue “Vivo” mobile phone referred to in paragraphs [111] to [116] of the Independent Lawyers’ report to the Court dated 25 February 2025.

“DISP” means end to end digital investigation software and platform programs, including but not limited to those offered by Cellebrite and Oxygen.

“Flattened” means extracting, to the extent possible, all information to native files and reports including call logs, messages, internet history, multimedia files and providing a comprehensive overview of the digital activity of the device.

“Independent IT Experts” means Mr Nigel Carson, Mr Kaustav Mehta, Mr Briston Talbot and Mr Mar Noordin of Digital Trace Australia.

“Independent Lawyers” means Mr Dominic Calabria and Mr Ben Dibden of Bridges Lawyers.

“Liquidators” means Peter Krejci and Jonathan Keenan as Liquidators of the Fifth Plaintiff.

2.    The Independent IT Experts have brought the following information to the attention of the Court:

(a)    two images have been taken of the Blue Phone:

(i)    a full file extraction; and

(ii)    an agent-based extraction;

(b)    while there is a large degree of overlap of data contained in each image as a result of the two different types of imaging referred to above, the data captured by each image is not identical;

(c)    in order to maintain the integrity of the data of the Blue Phone, the Independent IT Experts propose:

(i)    providing a separate flattened report of each image; and

(ii)    not to attempt to de-duplicate the data from the two images; and

(d)    the Independent IT Experts will identify any limitations or difficulties in complying with these orders and possible further available steps in the report that they will produce in accordance with these orders.

AND THE COURT ORDERS THAT:

3.    The Independent IT Experts are to:

(a)    on or before 3 October 2025, using whichever DISP is deemed suitable and appropriate, and any such software, applications and steps as may be required, deliver to the Court and provide to:

(i)    the Liquidators;

(ii)    the 5th plaintiff;

(iii)    the 2nd, 4th and 7th to 23rd defendants; and

(iv)    McEvoy Legal,

(Recipients of the Blue Phone Data)

a copy of the data on the Blue Phone in a flattened format;

(b)    on or before 17 October 2025, deliver to the Court and provide to the Court and the Recipients of the Blue Phone Report, a brief report to the Court and the parties which:

(i)    sets out any impediments, limitations or complications encountered in complying with order 1(a), including:

A.    whether any identifiable errors occurred when the image was taken of the Blue Phone, such that the image of the Blue Phone might not be a complete image of the information and data stored on the actual device;

B.    to the extent that the image of the Blue Phone contained any data or information which was unable to be accessed and or flattened, details as to why that information or data could not be accessed or flattened;

C.    to the extent that the image of the Blue Phone had any applications on the phone, details of those applications; whether those applications require passwords or an access key; and whether those applications were able to be accessed; and

D.    any other password or encryption issues;

(ii)    identifies:

A.    whether the Blue Phone was accessed on or after 8.40am on 21 February 2025;

B.    whether any information or data was removed or deleted from the Blue Phone after that point in time;

C.    whether any information or data on the Blue Phone was encrypted, altered or otherwise modified; and

D.    whether that information or data can be recovered.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOORE J:

1    These reasons concern a dispute about what orders should be made in relation to a mobile telephone, referred to in the materials as the Blue Phone, that was seized during the search of the premises at 74 McEvoy Street, Alexandria, NSW 2015 (the Premises).

2    On 19 February 2025, the Court made search orders directed at various defendants and McEvoy Legal Pty Limited that authorised independent lawyers and independent IT experts to search and seize materials at the Premises, including any mobile telephones. On 21 February 2025, a search was conducted at the Premises and the Blue Phone was seized. The Blue Phone has subsequently been in the custody of the independent lawyers and independent IT experts. The independent IT experts have extracted data from the Blue Phone by the taking of four photographs of the contents of the telephone.

3    The first and sixth plaintiffs, Mr Krejci and Mr Keenan (the Liquidators), are the Liquidators of (inter alia) the fifth plaintiff, Financial Advisory Australia Pty Ltd (Financial Advisory).

4    Somewhat extraordinarily, in the seven months since the search orders were executed, nobody has come forward to claim ownership of the Blue Phone.

5    At a case management hearing on 11 September 2025, the independent lawyers raised the question of what was to happen to electronic devices held by them, including the Blue Phone. On 15 September 2025, the Court made orders, inter alia, that the plaintiffs’ solicitors notify Mr Cassaniti’s solicitors and the independent lawyers of their position in respect of any electronic devices and documents held by the independent lawyers and/or the independent IT experts.

6    In due course, the plaintiffs sought an order that a copy of the images of the Blue Phone be provided to them. The 2nd, 4th, and 7th – 23rd defendants resist this, and say that the image should first be provided to them so that they can review it and consider whether to make any privilege claims or ownership claims that would prevent the plaintiffs from seeing the Blue Phone. For convenience, I will refer to these defendants as the Cassaniti Parties, without that representing any view as to the relationship between them. McEvoy Legal adopts the same position as the Cassaniti Parties.

7    There is some evidence to suggest that the Blue Phone belongs to Financial Advisory. First, the Blue Phone has an active Gmail account with the username “wages2020”. The email address “wages2020@gmail.com” was used as the contact email address in documents of Financial Advisory described as “Payroll Activity [Summary]” for the years 2023 and 2024. Secondly, there is a WhatsApp account on the Blue Phone which has the number 0434 327 474 recorded as the telephone number for the account. That telephone number is recorded in an ATO Audit Position Paper as a telephone number associated with Mr Teddy John Panella, who is the sole director of Financial Advisory. Mr Panella is also the first defendant, but is not one of the Cassaniti Parties.

8    There is therefore evidence to suggest that the Blue Phone forms part of the books and records of Financial Advisory. If so, Financial Advisory would be entitled to view the data on the Blue Phone, and the Liquidators would likewise be entitled to view the data on the Blue Phone in their role as the Liquidators of Financial Advisory.

9    By contrast, there is no evidence to suggest that the Blue Phone has any association with any of the Cassaniti Parties or with McEvoy Legal. No ownership claim has been made by any such party (or indeed, by any person). No such party has claimed any interest in the Blue Phone, or articulated any proper basis for why documents belonging to those parties or concerning those parties would be on the Blue Phone.

10    The Cassaniti Parties and McEvoy Legal seek first access to the data on the Blue Phone on the basis that the phone was seized pursuant to search orders that merely preserve evidence and do not entitle any of the plaintiffs to obtain access, and otherwise on the basis that there is no prejudice to the plaintiffs in the Cassaniti Parties and McEvoy Legal having the opportunity to check for privilege and ownership first, before data on the Blue Phone is simply handed over.

11    However, these submissions somewhat miss the point. Nobody has claimed ownership of the Blue Phone. The Blue Phone was on premises that are the premises not only of relevant defendants (and McEvoy Legal) but also of relevant plaintiffs, including Financial Advisory. Neither the Cassaniti Parties nor McEvoy Legal have articulated any basis for thinking that the Blue Phone would contain privileged materials over which they had a claim. The only evidence about the Blue Phone is evidence suggesting that it belongs to Financial Advisory. On the information before the Court, if anyone is entitled to first access, then that person would be Financial Advisory. However, the Liquidators have informed the Court that they consent to the Cassaniti Parties and McEvoy Legal receiving simultaneous access to the data on the Blue Phone.

12    Therefore, the appropriate order is one providing for simultaneous access. The orders that are made are otherwise substantially in the form that was largely agreed between the parties, except for the contested issue the subject of this judgment.

13    Having regard to the way in which this issue has emerged, including that it has not been by way of any formal application, I will not make any special costs order. Rather, costs will simply be costs in the proceedings.

Associate:

Dated:    1 October 2025

SCHEDULE OF PARTIES