ACW v Du Bray
[2019] FCA 1075
•12 July 2019
FEDERAL COURT OF AUSTRALIA
ACW v Du Bray [2019] FCA 1075
File number: NSD 430 of 2019 Judge: WIGNEY J Date of judgment: 12 July 2019 Catchwords: BANKRUPTCY AND INSOLVENCY – application by creditor seeking an order to identify respondent by his full name in creditor’s petition to obtain a sequestration order and to provide the creditor’s petition and any sequestration to the Official Receiver of Bankruptcy – where respondent contended that the applicant has other available avenues to enforce a monetary judgment or order – consideration of information required to be made public concerning creditor and debtor in bankruptcy proceedings for purposes of the Bankruptcy Act 1966 (Cth) – consideration of whether petitioning creditor’s name is required to be information entered on the National Personal Insolvency Index pursuant to the Bankruptcy Regulations 1996 (Cth)
PRACTICE AND PROCEDURE – interlocutory application filed by applicant seeking that respondent be identified by his full name in this proceeding and in creditor’s petition – where parties previously referred to by pseudonyms as a result of suppression orders made pursuant to s 37AF of the Federal Court of Australia Act 1976(Cth) – whether suppression order is necessary to prevent prejudice to applicant – whether leave should be granted to identify respondent by his name in creditor’s petition – whether leave should be granted to applicant to amend creditor’s petition – where orders sought by applicant opposed by respondent – where new suppression regime granted
Legislation: Bankruptcy Act 1966 (Cth) s 49
Evidence Act 1995 (Cth) s 91
Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG(1)(a), 37AH(5)
Bankruptcy Regulations 1996 (Cth) reg 13.03(1)(a) and Sch 8
Federal Court Rules 2011 (Cth) r 2.32(3)(a)
Cases cited: Attorney-General v Leveller Magazine Ltd [1979] AC 440
Australian Competition and Consumer Commission v Air New Zealand Limited(No 12) [2013] FCA 533
Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; 343 ALR 632
Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Date of hearing: 4 July 2019 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 64 Counsel for the Applicant: Dr C Ward SC Solicitor for the Applicant: Marque Lawyers Counsel for the Respondent: Mr C D Wood Solicitor for the Respondent: Prime Lawyers ORDERS
NSD 430 of 2019 BETWEEN: ACW
Applicant
AND: LEE FRANCIS DU BRAY
Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
12 JULY 2019
THE COURT ORDERS THAT:
1.The pseudonym ACW be substituted for the pseudonym previously used to identify the applicant in this proceeding and in the creditor’s petition presented on 12 March 2019 and endorsed by the Court on 21 March 2019 (Creditor’s Petition).
2.The applicant have leave to identify the respondent by his full name for the purposes of:
(a)proceeding with the Creditor’s Petition;
(b)obtaining and enforcing any sequestration order against the respondent;
(c)providing the Creditor’s Petition and any sequestration order made to the Official Receiver in Bankruptcy and any other relevant government officer or authority.
3.The applicant have leave to file an amended creditor’s petition to:
(a)identify the applicant by the new pseudonym referred to in Order 1 above;
(b)identify the respondent by his full name in accordance with Order 2 above.
4.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth):
(a)the applicant’s name and other information that could identify the applicant, including her occupation, employment, history and health be prohibited from disclosure or publication;
(b)the pseudonyms formally used to identify the applicant and respondent in these and other proceedings and the particulars of the other proceedings in which those pseudonyms were used be prohibited from disclosure or publication in or in connection with these proceedings,
on the ground that those orders are necessary to prevent prejudice to the proper administration of justice.
5.Pursuant to and for the purposes of r 2.32(3)(a) of the Federal Court Rules 2011 (Cth), documents filed in these proceedings before the date of this order be confidential and not be inspected by a person who is not a party to the proceedings.
6.The respondent pay the applicant’s costs of and associated with the amended interlocutory application filed on 11 April 2019.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WIGNEY J:
This somewhat unusual application involves the potentially uncomfortable intersection between orders that suppress information which discloses the identity of parties to a proceeding and the need to publicly identify the debtor in subsequent bankruptcy proceedings based on a judgment debt arising from that proceeding.
The applicant in this proceeding has filed a creditor’s petition in which she seeks a sequestration order against the respondent based on debts arising from a series of orders made in other proceedings. Suppression orders were made in the other proceedings so as to prevent the disclosure of the identity of the parties. The creditor’s petition filed by the applicant employs the pseudonyms that were used in other proceedings in place of the names of both the applicant and the respondent. The applicant has now applied for leave to use the respondent’s full name in the creditor’s petition and for new suppression orders.
BACKGROUND
For the last decade the parties in this matter have been involved in what could fairly be described as a litigious saga of epic proportions. That saga began in New Zealand when the parties’ domestic relationship came to an end. There followed what was described in one of the many judgments which followed, perhaps with some degree of understatement, as a “highly fractious property dispute”. The nature and tenor of the litigation was such that orders were made which permanently suppressed the parties’ names and any other information that could identify the applicant, who was the plaintiff in those proceedings. It is readily apparent that it was the applicant who applied for the suppression orders and that the primary, if not sole, purpose for which they were sought and made was to protect the applicant’s vulnerabilities and susceptibilities arising from the litigation and the way it had been conducted by the respondent, who was the defendant in the proceedings. The parties were also given pseudonyms for the purpose of the proceedings in New Zealand. For reasons that will become apparent, those pseudonyms will not be used in this judgment.
The applicant was, for the most part, the successful party in the New Zealand proceedings. The litigation then crossed the Tasman where it appears to have been fought with the same gusto by the respondent. It is unnecessary to describe the Australian arm of the litigation in any great detail. It suffices for present purposes to note that, since at least April 2012, suppression and pseudonym orders which essentially mirror those made in New Zealand have been made in both the Federal Circuit Court of Australia (formerly the Federal Magistrates Court) and subsequently in this Court.
For reasons that will again become apparent in due course, the names and proceeding numbers of the various cases in which suppression orders have been made will not be referred to in this judgment. Perhaps most significantly, in 2016, a judge of this Court delivered a judgment (the 2016 judgment) which explained the basis upon which he made suppression orders in the proceeding before him (the 2016 proceeding). The relevant points to note about the 2016 judgment and the orders made pursuant to it (the 2016 suppression orders) are as follows.
First, the proceeding before the judge had originally been commenced by the respondent (who was one of the applicants in that proceeding) by filing an originating application which identified the parties’ full names. The main relief sought by the respondent in that proceeding was an order setting aside the registration of two judgments of the High Court of New Zealand under the Trans-Tasman Proceedings Act 2010 (Cth).
Second, it was the applicant who applied for and obtained suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The judge also ordered that the parties be referred to by the same pseudonyms that were utilised in the New Zealand proceedings and that the respondent re-file his application and supporting affidavits using pseudonyms.
It is readily apparent that the respondent was not concerned about revealing his name or identity in the context of the 2016 proceeding. Had he been concerned he would not have filed an application in using the parties’ full names, particularly in circumstances where an application for suppression orders had been foreshadowed. He also would himself have applied for leave to use pseudonyms and for suppression orders, instead of leaving it to the applicant to take that course.
Third, the respondent did not oppose the applicant’s application for a suppression order.
Fourth, the judge was nevertheless required to consider whether the orders satisfied one of the grounds in s 37AG of the FCA Act. His Honour found that the suppression orders were necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a) of the FCA Act. His Honour reasoned that “as a matter of judicial comity, this Court should act conformably with the New Zealand Courts and suppress the parties’ names and because it is also in the due administration of justice to do so”. The judge referred specifically in that context to the suppression orders that had been made in the High Court of New Zealand.
Fifth, the judge noted that it was “evident that one of the bases for the suppression orders in the New Zealand proceedings is the fact that [the applicant] has been determined to be a ‘vulnerable person’ within the meaning of ss 11B-11D of the Family Court Act 1980 (NZ)”.
Sixth, it is readily apparent from the terms of the suppression order made by the judge that the primary, if not sole, purpose of the order was to prevent or prohibit the identification of the applicant. The main operative order was for the “permanent suppression of the parties’ names and any other information that could identify [the applicant], including her occupation, employment, history and health, howsoever … whether in the proceedings or in any related proceedings or otherwise”. There was no specific order suppressing information that could identify the respondent.
Seventh, the judge granted the applicant leave to “disclose any part of the confidential exhibit as and when necessary for enforcing orders made in the proceedings or any related proceedings”. The confidential exhibit was an exhibit which revealed the parties’ full names. For convenience this order will be referred to as the leave to disclose order. The leave to disclose order again indicated that the suppression orders were made for the benefit of the applicant and not for the benefit of the respondent. As will be seen, there is an issue in this proceeding about whether the orders sought by the applicant fall within the leave to disclose order.
The judge ultimately dismissed the respondent’s application to set aside registration of the two New Zealand judgments. An appeal from the 2016 judgment was subsequently dismissed. That appeal concerned the substantive relief granted by the primary judge. The Full Court which heard that appeal made a suppression order which was in the same terms as the order made by the primary judge, though it appears to have been unnecessary for any orders to be made about the confidential exhibit or its use. The suppression order made by the Full Court identified the ground for making the suppression order as being that it was necessary to prevent prejudice to the proper administration of justice.
The present dispute arises because the litigation between the parties has now progressed to the bankruptcy stage. On 18 July 2018, a bankruptcy notice was issued by an Official Receiver on the application of the applicant. It identified the addressee and the creditor by use of pseudonyms which, save in one minor and immaterial respect, coincided with the pseudonyms used throughout the litigation between the respondent and the applicant. The bankruptcy notice claimed that the respondent was indebted to the applicant in the amount of $6,558,934.61 arising from seven specified judgments or orders together with accrued interest. Those judgments or orders are those that relate to the registered New Zealand judgments and costs orders made against the respondent in the proceeding and appeal in this Court to set aside the registration.
The respondent commenced proceedings in this Court in 2018 seeking, inter alia, an order that the bankruptcy notice be set aside. He claimed, in essence, that the bankruptcy notice was a nullity by reason of defects arising from the fact that it used pseudonyms to identify both the debtor and the creditor. Despite what had occurred in the 2016 proceeding, the respondent again commenced the proceedings using his name. He was, however, subsequently ordered to refile the application and supporting affidavit using the pseudonym for his name which had been used in previous proceedings.
The respondent’s application to set aside the bankruptcy notice was dismissed. In dismissing the application, however, the presiding judge made it tolerably clear that there would be potentially insurmountable hurdles in using pseudonyms for the respondent’s name if the bankruptcy notice was not complied with and a creditor’s petition was filed. Her Honour noted, in that regard, that the use of acronyms or pseudonyms in a creditor’s petition, particularly in respect of the debtor’s name, would not be appropriate given the nature of the statutory scheme concerning bankruptcy.
The respondent failed to comply with the bankruptcy notice and the applicant duly filed a creditor’s petition. That creditor’s petition used the same pseudonyms as those used in the bankruptcy notice.
THE ORDERS NOW SOUGHT BY THE APPLICANT
The applicant has now applied for orders the effect of which would resolve the difficulties that would inevitably arise from her use of a pseudonym to describe the respondent in the creditor’s petition she has filed, but still maintain the protective effect of the pseudonym and suppression orders that have been made in the past.
The specific orders sought by the applicant can conveniently be grouped into two categories.
The first category relates to the naming of the respondent in the bankruptcy proceedings. The applicant seeks leave to identify the respondent by his full name for the purposes of proceeding with the creditor’s petition, obtaining a sequestration order and providing the creditor’s petition and any sequestration to the Official Receiver and others. The applicant also seeks leave to amend the creditor’s petition by inserting the respondent’s full name in lieu of the pseudonym.
The applicant’s primary submission was that this category of orders fell within the leave to disclose order. It was also submitted that the suppression orders that have been made in the past, including the 2016 suppression orders, have been made for the purpose of protecting the applicant’s identity and not the respondent’s identity. It followed, in the applicant’s submission, that the Court should therefore have no difficulty disclosing the respondent’s name in these proceedings so long as appropriate protection can otherwise or nevertheless be given to the applicant. That is the apparent purpose of the second category of orders.
The purpose of the second category of orders is to put in place a new confidentiality and suppression regime which would prevent the applicant’s identity from being disclosed despite the disclosure of the respondent’s name in the creditor’s petition. The applicant sought orders pursuant to s 37AF of the FCA Act which would have the effect of suppressing her name and other information that could identify her; suppressing the pseudonyms that had been used to denote her and the respondent to date; prohibiting publication of any information which could identify her; and substituting a new pseudonym unrelated to the applicant’s name in place of the pseudonym used to identify the applicant in the bankruptcy notice and creditor’s petition.
The applicant submitted, in essence, that it was, in terms of s 37AG(1)(a) of the FCA Act, necessary to prevent prejudice to the proper administration of justice to make the second category of orders. That was because the Court should again, as a matter of judicial comity, act conformably with the New Zealand courts and protect the applicant from disclosure of her identity.
THE RESPONDENT’S OPPOSITION TO THE ORDERS
Perhaps not surprisingly, given the sorry history of the litigation between the parties, the respondent opposed the applicant’s application for leave to identify him in the creditor’s petition. He also opposed the new suppression regime sought by the applicant. He advanced four propositions or arguments against the course proposed by the applicant.
The first proposition was that there is no inalienable right of any litigant to move to bankruptcy proceedings. In the respondent’s submission, bankruptcy is not a form of judgment execution and, in any event, a party has other available avenues to enforce a monetary judgment or order. The point that the respondent appeared to be making in this regard was that, the fact that the applicant would be effectively precluded from proceeding with the creditor’s petition if orders permitting the respondent to be identified by his full name are not made, is not a sufficient reason to make the orders sought by the applicant.
The second proposition was that it would be unfair to the respondent to retrospectively unwind the suppression regime that has been in place to date. The effect of permitting the respondent to be named in the creditor’s petition would, in his submission, enable someone so inclined to conduct searches that would link him to the relevant Australian and New Zealand proceedings. While the suppression and pseudonym orders had been made on the applicant’s application, they nonetheless benefitted and served to protect him. In the respondent’s submission, it would be unfair to now effectively deprive him of that benefit and protection.
The third proposition was that the orders proposed by the applicant do not fall within the leave to disclose order. That is because bankruptcy proceedings are not a form of judgment execution. The respondent contended that, in those circumstances, it was necessary for the applicant to either vary the 2016 suppression orders, or obtain a new order to permit her to name the respondent in the creditor’s petition. The respondent also submitted that acting upon the orders sought by the applicant in this proceeding would also contravene suppression orders made by a judge of the High Court of New Zealand and that the applicant would first need to apply to that court for variation of that order.
The fourth proposition was that suppression and pseudonym orders now sought by the applicant would constitute a new suppression regime. In those circumstances, it was necessary for the applicant to demonstrate, relevantly, that the proposed orders were necessary to prevent prejudice to the proper administration of justice, rather than it being merely desirable to address potential prejudice. The respondent submitted that the applicant had not satisfied that requirement and had not identified a form of order that would ensure that the order is limited to achieving the purpose for which it is made: s 37AH(5) of the FCA Act. The respondent also appeared to contend that the new suppression regime would in any event be futile because, once the respondent was identified in the creditor’s petition, simple google searches made by someone so inclined to make them would inevitably reveal the applicant’s identity.
SHOULD THE ORDERS SOUGHT BY THE APPLICANT BE MADE?
While the two categories of orders sought by the applicant are obviously linked, different considerations arise in relation to them. It is accordingly appropriate to consider them separately.
The first category of orders – Disclosure of the respondent’s name
The question whether orders should be made which permit the disclosure of the respondent’s name for the purpose of the bankruptcy proceedings essentially raises four issues. The first issue is whether the making of those orders is permitted by the leave to disclose order. If so, the leave now sought by the applicant may be unnecessary. The second is whether the suppression orders made in the context of the 2016 proceedings, including the 2016 suppression orders, in any way preclude the making of the orders permitting the disclosure of the respondent’s name in the creditor’s petition. The third issue is whether it would be unfair to the respondent to unwind the protection that has been afforded to him by the existing suppression regime. The fourth issue is whether there are otherwise good reasons for making the orders.
As for the first of those issues, the better view would appear to be that the leave to disclose order is in sufficiently broad terms to encompass or include disclosing the respondent’s name in the creditor’s petition and any related bankruptcy proceedings or procedures. It may be accepted, as the respondent submitted, that bankruptcy is not a form of judgment execution: cf. Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; 343 ALR 632 at [40]. The leave to disclose order, however, does not use the language of judgment execution. It refers to disclosure of any part of the confidential exhibit, which relevantly includes the respondent’s full name, as and when necessary for enforcing orders in the proceeding or any related proceedings. It is not entirely inaccurate to refer to a bankruptcy notice or creditor’s petition as a means of enforcing an order for the payment of money. The creditor’s petition in this matter includes, as one of the orders giving rise to the claimed indebtedness of the respondent, an order made in the proceeding in which the leave to disclose order was made.
It would follow that it may be unnecessary to give the applicant leave to name the respondent in the creditor’s petition, though it would still be necessary to consider whether the applicant should be granted leave to amend the petition. It was, however, nonetheless prudent for the applicant to seek leave in the circumstances. It is also appropriate to consider whether it would be appropriate to grant leave in any event.
The second issue arises in light of the respondent’s contention that the orders sought by the applicant do not fall within the leave to disclose order and in effect require a variation to the 2016 suppression orders.
Contrary to the respondent’s contention, the first category of orders sought do not seek to vary the 2016 suppression orders. Nor is there any need to vary those orders. These are separate proceedings to the 2016 proceedings. The real question is whether the terms of the 2016 suppression orders in any way prevent or preclude the Court in this proceeding from making an order the effect of which would reveal the respondent’s identity in the context of bankruptcy proceedings.
The short answer to that question is “no”. If an appropriate new suppression regime is put in place, and a new pseudonym is used for the applicant’s name, the disclosure of the respondent’s name in this proceeding and in the creditor’s petition will not necessarily reveal the respondent as a party to the other proceedings in which suppression orders have been made, including the 2016 proceedings. Nor will the disclosure of the respondent’s name necessarily result in a disclosure of the applicant’s identity. Perhaps more significantly, even if it did, the Court nevertheless has power to make an order permitting a step to be taken in this proceeding which might otherwise have involved a contravention of a suppression order in another proceeding. That point also disposes of the respondent’s apparent contention that the first category of orders sought by the applicant would, if made, somehow contravene the suppression orders made in the New Zealand proceedings.
As for the third issue, the respondent’s submission that the orders should not be made because they would be unfair to him has no merit. Permitting the respondent to be named in the creditor’s petition and in this proceeding would not be unfair or prejudicial to him in any relevant or material respect.
It is abundantly clear from the 2016 judgment and the terms of the 2016 suppression orders that the orders were made for the applicant’s benefit. The obvious purpose of the orders was to suppress information that could identify the applicant, including her occupation, employment, history and health. It is true that the order also suppressed the respondent’s name, however it is readily apparent that that was done so as to prevent the applicant’s identity from being revealed. It is equally true that, in that limited sense, it could be said that the respondent obtained a benefit from the suppression orders. That benefit, however, was a mere by-product of the orders. It does not follow that it would now be relevantly or materially unfair to deprive him of that benefit.
The respondent did not adduce any evidence of any damage or prejudice that he would suffer by reason of the disclosure of his name in a creditor’s petition beyond the prejudice that any person named in a creditor’s petition may suffer. It may also be inferred that, despite the submissions he made in opposition to the orders sought by the applicant, the respondent is not genuinely concerned at the prospect of his name being revealed. Had the respondent been at all concerned, he would not have filed applications in proceedings in this Court on two previous occasions using his own name.
It should also be noted, in this context, that the 2016 judgment and the 2016 suppression orders specifically refer to one of the judgments in the High Court of New Zealand in which suppression orders were made. That judgment, which again for reasons that by now should be apparent will not be specifically identified in this judgment, contains the following explanation for the making of suppression orders which also suppress the name of the respondent (at [181] and [182]):
While the proceedings remained in the Family Court the parties’ names were anonymised in the usual way. Before they were transferred from that Court to this (in 2011) their names were suppressed and there has been suppression orders in place ever since. This has been to protect the plaintiff who has been classified as a “vulnerable person”. Identifying her in these proceedings would also have the effect of undermining suppression orders made in a number of other proceedings in New Zealand and Australia.
In light of the defendant’s conduct in this matter (and to say that it beggars belief is an understatement) it seems to me that there is a strong public interest in making his name public. However the plaintiff is adamant that her identity should continue to be protected and I must accept that there are grounds for it to remain so. Although she was prepared, reluctantly, and only on condition that she was referred to by different initials, to agree to the naming of the defendant I consider that that course is fraught with complexity and difficulty. So with some regret I direct that the existing suppression orders are to remain in place.
(Footnotes omitted).
The respondent submitted that these paragraphs of the judgment of the High Court of New Zealand were not admissible in this proceeding by reason of s 91 of the Evidence Act 1995 (Cth). That section relevantly provides that evidence of the decision, or of a finding of fact, in an overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. The High Court of New Zealand’s reasons for making an order could not, however, accurately be described as a fact in issue in that proceeding. There is also no indication that the prior making of a suppression order by the Family Court of New Zealand or the classification of the applicant as a “vulnerable person” for the purposes of New Zealand law were facts in issue in the High Court of New Zealand proceedings. Section 91 of the Evidence Act accordingly does not preclude the applicant from relying on the judgment as an indication of the High Court of New Zealand’s reasons for making suppression orders, or the reasons why the Family Court of New Zealand had made suppression orders in the first place.
Those paragraphs from the judgment of the High Court of New Zealand further put paid to any suggestion that it would be in some way unfair to allow the respondent to be identified by his full name in the creditor’s petition and as a party to this proceeding. It should also be added that, unlike in the proceedings in the High Court of New Zealand, the applicant is no longer reluctant to agree to the naming of the respondent, albeit only in connection with the bankruptcy proceedings. The disclosure of the respondent’s name in the bankruptcy proceedings could also not now be said to be “fraught with complexity and difficulty” given the nature of the new suppression regime that can appropriately be put in place.
As for the fourth issue, there are good reasons for making the orders. If they are not made, the applicant would effectively be precluded from proceeding with the creditor’s petition. While it may perhaps be accepted, as the respondent submitted, that there is no “inalienable right” for a litigant to commence bankruptcy proceedings, it does not follow that the applicant should inadvertently be precluded from taking that course by reason of a suppression regime which was put in place for her protection.
In all the circumstances, the Court has the power to make, and should make, the first category of orders sought by the applicant. Leave should be granted to the applicant to amend the creditor’s petition to identify the respondent by his full name rather than a pseudonym and to disclose his name in the bankruptcy proceedings and any related proceeding or associated procedure.
The second category of orders – The new suppression regime
The applicant did not dispute that the second category of orders sought by her constituted a new suppression regime and that she was required to establish one of the grounds in s 37AG of the FCA Act. As has already been noted she contended, in that regard, that the making of the second category of orders was necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a) of the FCA Act.
To satisfy the ground in s 37AG(1)(a) of the FCA Act, the proposed orders “must be necessary to prevent prejudice to the administration of justice, not merely that it is desirable to address a potential prejudice to the administration of justice”: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8]. It has been held that, at least in this context, “‘necessary’ is a strong word”: Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30]; and that “[m]ere embarrassment or annoyance will not suffice”: Australian Competition and Consumer Commission v Air New Zealand Limited(No 12) [2013] FCA 533 at [7].
While the second category of orders sought by the applicant are somewhat unique, if not unusual, it may nonetheless be concluded, in all the circumstances, that they are necessary to prevent prejudice to the proper administration of justice. That is primarily because if they are not made, they will undermine the purpose and effect of suppression orders made in other proceedings between the respondent and applicant in both New Zealand and Australia.
Suppression orders were first made in the Family Court of New Zealand to protect the applicant because she had been classified as a “vulnerable person” under the Family Court Act. The High Court of New Zealand subsequently accepted that there were grounds to continue to protect the applicant’s identity from disclosure. It was accepted by a judge of this Court, in the 2016 judgment, that as a matter of judicial comity, this Court should act conformably with the New Zealand courts and that it was necessary to make the 2016 suppression orders to prevent prejudice to the proper administration of justice. The Full Court which dismissed the respondent’s appeal from the 2016 judgment also made a suppression order on the basis that it was necessary to prevent prejudice to the proper administration of justice.
Nothing has changed since the 2016 judgment, other than that the applicant has filed a creditor’s petition and has now sought leave to identify the respondent by his full name in it. The respondent did not contend that the 2016 judgment was wrongly decided, or that it should not be followed. Nor could such a contention be advanced in circumstances where the Full Court made a suppression order in essentially the same terms, again on the basis that it was necessary to prevent prejudice to the proper administration of justice.
Judicial comity, which in general terms refers to the respect shown by a court of one state to another state, is an important aspect of the administration of justice. This Court would not readily act in a way which would undermine a suppression order made by a New Zealand court. Comity provides a particularly strong basis for making suppression orders in this case given that the proceedings here, at least initially, concerned the registration of judgments of the High Court of New Zealand and given that the basis upon which the orders were made in that court was that they were necessary to protect the applicant.
It must also be accepted that it otherwise remains the case that an order suppressing information which would disclose the applicant’s identity is necessary to prevent prejudice to the proper administration of justice. That is because the orders are necessary to protect the applicant’s vulnerabilities and susceptibilities arising from the extraordinary nature of the proceedings in New Zealand. While the applicant did not specifically adduce evidence in this proceeding to demonstrate why suppression orders were otherwise necessary to prevent prejudice to the proper administration of justice, it is clear that it has been accepted by courts in both New Zealand and Australia that suppression orders were necessary to protect the applicant given the nature and character of the proceedings. It is readily apparent that the suppression of the applicant’s identity has been considered to be necessary for her protection and was not merely a matter of her avoiding mere embarrassment, annoyance or inconvenience. The respondent did not adduce evidence, or attempt to otherwise establish, that the applicant’s circumstances arising from the New Zealand proceedings have relevantly or materially changed.
The fact that the applicant has chosen to pursue bankruptcy proceedings does not mean that she has forfeited, or should be required to forfeit the right to continue to protect her identity. Nor does it necessarily follow that suppression orders in relation to the applicant’s identity are no longer necessary to prevent the proper administration of justice. There is no doubt that the scheme of the Bankruptcy Act 1966 (Cth) is such that, at least at the creditor’s petition stage, the name of the debtor must be made public and pseudonyms and acronyms cannot be used to identify the debtor. The same cannot necessarily be said of the identity of the creditor who files a creditor’s petition.
The respondent did not submit that the scheme of the Bankruptcy Act was such that a pseudonym could not be utilised in lieu of the full name of the creditor or applicant at the creditor’s petition stage. While it would appear that reg 13.03(1)(a) and Sch 8 to the Bankruptcy Regulations 1996 (Cth) requires the petitioning creditor’s name to be entered on the National Personal Insolvency Index, there is no reason in principal why a pseudonym cannot be used for the petitioning creditor’s name, so long as contact details are provided for the petitioning creditor’s solicitors. Provision of the contact details for the petitioning creditor’s solicitors would, for example, enable another creditor who wishes to be substituted pursuant to s 49 of the Bankruptcy Act to contact the petitioning creditor via their solicitor.
It may readily be accepted that bankruptcy is not just a variety of inter partes litigation. That is because it does not deal only with the private rights and obligations of the debtor and creditor, but rather has a public element or interest “through the general body of creditors and potential creditors of the debtor and prospective bankrupt, and through what is referred to as the change of status of the person who becomes a bankrupt”: Culleton at [40]. This particular feature or quality of bankruptcy proceedings does not, however, compel the conclusion that the creditor’s full name has to be revealed, or that suppression orders cannot be made in respect of the creditor’s identity in an otherwise appropriate case. It is relevant to note, in that regard, that the combined effect of reg 13.03(1)(a) and Schedule 8 of the Bankruptcy Regulations is that information in respect of a creditor’s petition must be entered in the Index “to the extent applicable”. There appears to be no reason in principle why the name of the petitioning creditor which is entered in the Index as required by reg 13.03(1)(a) and Schedule 8 cannot be a pseudonym.
The respondent contended that if the respondent’s full name is disclosed in the creditor’s petition it might be possible for someone to conduct searches which might ultimately enable them to work out the applicant’s identity. That is because the creditor’s petition identifies the proceeding numbers of the various proceedings in which the orders which give rise to the total judgment debt were made. The identification of the proceeding numbers would enable someone to conduct a search which would reveal the details of those proceedings, including the judgments that have been delivered in them. That in turn would reveal the pseudonyms that have been used in those proceedings, as well as the proceedings in New Zealand, which were the same as the pseudonyms that have to date been used to identify the parties to this proceeding. Further searches and research based on the facts disclosed in the New Zealand judgments might then allow someone to ultimately discover the identity of the respondent’s former domestic or de-facto partner and therefore the applicant’s name and identity.
The orders sought by the applicant attempt to meet that possibility by providing for the suppression, in this proceeding, of any references to the previous pseudonyms and the previous proceedings involving the parties which utilised those pseudonyms. The respondent did not specifically contend that an order in those terms would be inappropriate, or would be contrary to, or precluded by, any particular provision of the Bankruptcy Act or the Bankruptcy Regulations. The respondent did not contend that it was necessary for the details of the previous proceedings, upon which the debt in the bankruptcy notice and creditor’s petition was based, to be publicly known or available for the purposes of the bankruptcy proceedings. It does not appear that details of the proceedings upon which the debt is based have to be entered on the Index.
The respondent also relied on evidence which indicated that a Google search using the respondent’s surname revealed a “benchmark” summary of proceedings between the respondent and the applicant in the Supreme Court of New South Wales in which their names, rather than pseudonyms, were used. The applicant countered that evidence by adducing evidence of a subsequent Google search which tended to suggest that, for reasons not specifically addressed in the evidence, the detail and link in that particular benchmark summary is no longer available or able to be obtained by a Google search. It would appear that a Google search conducted now would therefore not reveal the parties’ names in the earlier Supreme Court of New South Wales proceeding.
In any event, the respondent’s evidence does not support a finding that the making of the suppression orders sought by the applicant would be futile, or that the identification of the respondent as the debtor in the applicant’s creditor’s petition would allow the applicant’s identity to be readily ascertained. There may be cases where orders suppressing the identity of a party or witness may not be appropriate because it would be easy to discover the identity of the party or witness from other publicly available information: cf. Attorney-General v Leveller Magazine Ltd [1979] AC 440; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465. This, however, is not such a case.
In all the circumstances, the Court should make the second category of orders sought by the applicant which establishes a new suppression regime in relation to information which might tend to reveal her identity. Those orders are necessary to prevent prejudice to the proper administration of justice for the purposes of s 37AG(1)(a) of the FCA Act.
CONCLUSION AND DISPOSITION
Orders along the line of those sought by the applicant in the interlocutory application filed on 28 March 2019 should be made.
The applicant should be granted leave to identify the respondent by his full name for the purposes of proceeding with the creditor’s petition, obtaining a sequestration order and providing the creditor’s petition and any sequestration to the Official Receiver and others. The applicant should also be given leave to amend the creditor’s petition by inserting the respondent’s full name in lieu of the pseudonym.
The naming of the respondent in the creditor’s petition means that the respondent’s full name should be used in this proceeding generally. The respondent’s surname has accordingly been used in the title of this judgment.
A suppression order should also be made pursuant to s 37AF(1) of the FCA Act on the ground that such an order is necessary to prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a) of the FCA Act. Orders should be made which suppress the applicant’s name and other information that could identify her, suppress the pseudonyms that have been used to denote her and the respondent to date, prohibit the publication of any information which could identify the applicant and substitute a new pseudonym for the pseudonym used previously. The applicant’s new pseudonym has been used in the title to this judgment.
The respondent should be ordered to pay the applicant’s costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 12 July 2019
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