ACW v Du Bray

Case [2019] FCA 1075

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…

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AGLC
ACW v Du Bray [2019] FCA 1075
Case
[2019] FCA 1075
Decision Date

CaseChat Overview and Summary

In the case of ACW v Du Bray, the applicant sought to identify the respondent by his full name in her creditor’s petition, which sought a sequestration order against the respondent. The petition was filed following a long history of litigation between the parties, primarily in New Zealand, where suppression orders had been made to prevent the disclosure of the parties' identities. These suppression orders were subsequently mirrored in Australian proceedings. The applicant sought leave to amend the creditor’s petition to use the respondent's full name and to provide a copy of the petition and any sequestration order to the Official Receiver of Bankruptcy. The respondent opposed these applications, arguing that the applicant had other means to enforce a monetary judgment or order and that the suppression order was necessary to prevent prejudice to the applicant.

The court considered the legal issues surrounding the disclosure of the respondent's identity in bankruptcy proceedings, the requirements under the Bankruptcy Act 1966 (Cth) and the Bankruptcy Regulations 1996 (Cth), and the necessity of suppression orders under the Federal Court of Australia Act 1976 (Cth). It also considered whether the petitioning creditor’s name should be included in the National Personal Insolvency Index. The court found that the suppression order was initially made to protect the applicant, who was deemed a vulnerable person, and that the new suppression regime was necessary to prevent prejudice to the proper administration of justice. The court granted the applicant leave to identify the respondent by his full name and to amend the creditor’s petition accordingly. Additionally, the court imposed new suppression orders to protect the applicant’s identity and ordered that certain documents filed in the proceeding remain confidential.

The court's decision allowed the applicant to proceed with the creditor’s petition, ensuring that the respondent could be properly identified in the bankruptcy proceedings. The court also established a new suppression regime to safeguard the applicant’s identity, aligning with the previous orders made in New Zealand. The respondent was ordered to pay the applicant's costs associated with the amended interlocutory application.

Orders

Orders of the court

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.

Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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