Albarran (Liquidator) v Rankin, in the matter of Hartford Investments Pty Ltd (In Liq)

[2018] FCA 2111

FEDERAL COURT OF AUSTRALIA

Albarran (Liquidator) v Rankin, in the matter of Hartford Investments Pty Ltd (In Liq) [2018] FCA 2111

File number:

NSD 2192 of 2017

Judge:

JAGOT J

Date of judgment:

19 December 2018

Catchwords:

CORPORATIONS – examination – application for review of orders made by Judicial Registrar – real risk of harm to the administration of justice by publication of parts of examination transcript – application for review upheld

Legislation:

Criminal Code Act 1995 (Cth)

Cases cited:

Friedrich v The Herald and Weekly Times Ltd [1990] VR 995

Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486

Date of hearing:

19 December 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

9

Counsel for Mr Menon:

P Bruckner

Solicitor for Mr Menon:

Hardinlaw

Counsel for Fairfax Media Pty Ltd:

D Sibtain

Solicitor for Fairfax Media Pty Ltd:

Banki Haddock Fiora

Counsel for the Liquidators:

HW Somerville

Solicitor for the Liquidators:

Nelson McKinnon Lawyers

ORDERS

NSD 2192 of 2017

IN THE MATTER OF HARTFORD INVESTMENTS PTY LTD (IN LIQUIDATION) (ACN 607 002 102)

BETWEEN:

RICHARD ALBARRAN AND BRENT KIJURINA IN THEIR CAPACITY AS THE LIQUIDATORS OF HARTFORD INVESTMENTS PTY LTD (IN LIQUIDATION) (ACN 607 002 102)

Applicant

HARMON INTERNATIONAL HOLDINGS PTY LTD
Prospective Applicant

AND:

GEOFFREY RANKIN

First Prospective Respondent

YANKEE RIGGING PTY LTD

Second Prospective Respondent

DEV MENON (and others named in the Schedule)

First Interested Person

IN THE INTERLOCUTORY APPLICATION:

BETWEEN:

DEV MENON

Applicant

AND: 

FAIRFAX MEDIA PUBLICATIONS PTY LTD (ACN 003 357 720)

Respondent

RICHARD ALBARRAN AND BRENT KIJURINA IN THEIR CAPACITY AS THE LIQUIDATORS OF HARTFORD INVESTMENTS PTY LTD (IN LIQUIDATION) (ACN 607 002 102)

Interested Person

JUDGE:	JAGOT J
DATE OF ORDER:	19 DECEMBER 2018

THE COURT ORDERS THAT:

1.Pursuant to s.597(13) of the Corporations Act 2001 (Cth), the examinee Dev Menon review and sign a copy of the transcript of his examination ("Menon Examination") redacted as attached to these orders if/when it is provided to him by the Applicants ("Liquidators").

2.The transcript of the Menon Examination, redacted as attached to these orders, be made available to the public.

3.Direct pursuant to s.596F(1)(e) of the Corporations Act 2001 (Cth) that, without the leave of the Court, pending the final determination of the criminal proceedings against Dev Menon, no person or organisation shall be entitled to have access to such parts of the transcript of the Menon Examination which have been redacted or to any other written record thereof, other than Dev Menon, the Liquidators and their respective legal advisers, and any solicitor and counsel for Fairfax Media Pty Ltd who have already received it confidentially. (To avoid any doubt, a reference to the Liquidators includes the Liquidators' employees.)

4.Direct pursuant to s.596F(1)(f) of the Corporations Act 2001 (Cth) that, without the leave of the Court, pending the final determination of the criminal proceedings against Dev Menon, the Liquidators by themselves, their servants and agents, and any solicitor or counsel for Fairfax Media Pty Ltd who have already received it confidentially, must not publish or communicate to any person or organisation other than their legal advisers any information about such parts of the transcript of the Menon Examination which have been redacted, including questions asked and answers given during the redacted portion of the Menon Examination.

5.Fairfax Media Pty Ltd pay Dev Menon's and the Liquidators' costs of and incidental to the Interlocutory Application filed on behalf of the examinee Dev Menon on 10 September 2018 and of the Interlocutory Process filed 15 November 2018.

6.Without the leave of the Court, pending the final determination of the criminal proceedings against Dev Menon, each of the following documents on the Court file be kept confidential:

(a)The unredacted transcript of the Menon Examination;

(b)The transcript of the Menon Examination as redacted by Judicial Registrar Ng;

(c)The "Confidential Affidavit" of Paul Hardin sworn 10 December 2018 and Annexures thereto, being the documents referred to in (a) and (b) above;

(d)Submissions of Fairfax Media Pty Ltd dated 22 October 2018 (and those same submissions as annexed to Fairfax's submissions filed 17 December 2018).

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

REASONS FOR JUDGMENT

JAGOT J:

1. These reasons concern an application for review of orders made by a Judicial Registrar on 5 November 2018.  Those orders were in the following terms:

   1. Pursuant to s 597(13) of the Corporations Act 2001 (Cth), and following a review by the Judicial Registrar determining those parts of the examination that may be made available to the public, the examinee Dev Menon to review and sign a copy of the redacted transcript of his examination (document titled “NSD2192_2017 20180928 (redacted version of Menon examination.pdf)”) as at 5 Nov 2018”, if/when it is provided to him by the Liquidator.

   2.        The Examinee Dev Menon and Fairfax Media Pty Ltd to bear their own costs in relation to the Interlocutory Application filed on behalf of the Examinee Dev Menon on 10 September 2018 (“Interlocutory Application”).

   3.        The costs incurred by the Liquidator in appearing on the Interlocutory Application to be apportioned 50:50 and paid equally by the Examinee Dev Menon and Fairfax Media Pty Ltd.

   4. Any Interlocutory Application seeking to review the aforementioned orders to be made to a Judge of the Court on or before 4 pm on 12 November 2018.

   5.        The redacted version of the transcript identified in paragraph 1 may be made available to the public by Auscript on 13 November 2018 from 10 am, if no Interlocutory Application/s is filed and served in accordance with Order 4.

2. The application is brought by Dev Menon, the examinee in examination proceedings currently before the Registrar.  Mr Menon seeks a review of the orders in two respects.  First, Mr Menon contends that other parts of the examination transcript which the Judicial Registrar refused to redact, if published, could prejudice him as a person charged with various criminal offences.  Second, Mr Menon contends that he is entitled to his costs of and incidental to his application before the Registrar as he was wholly or substantially successful against Fairfax Media Pty Ltd (the intervener in these proceedings). 

3. As to the first ground, the relevant test is in substantially similar terms in both the High Court’s decision in Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 and Friedrich v Herald and Weekly Times Ltd [1990] VR 995 (the case which the intervener emphasised), namely, the existence of a real or substantial risk of harm to the administration of justice by publication of evidence given during an examination, albeit that the harm might take a number of forms.

4. In the present case, the form that the potential undermining of the administration of justice is said to take is, in effect, the provision of assistance to the prosecution by the questions and answers of Mr Menon in the examination in circumstances where Mr Menon is subject to serious charges. Relevantly, the charged offences are:

   (1)conspiring with other persons to deal with money of a value of greater than $1,000,000 or more, believing it to be the proceeds of crime contrary to certain provisions of the Criminal Code Act 1995 (Cth), in a period said to be between 1 March 2014 and about 31 January 2017; and

   (2)conspiring with other persons with the intention of dishonestly causing a loss to a third person, that third person being the Commonwealth, between about 1 March 2014 and 18 May 2017.

5. The question of the existence of a real risk of prejudice to the administration of justice in the form proposed, (namely assistance to the prosecution in one way or another by the answers given by Mr Menon) largely depends upon the interaction between the charges to which the applicant is subject and the subject matter of the examination. 

6. It is relevant that insofar as there are facts alleged at this time against Mr Menon in relation to the two charges, they appear to turn on the role of the company which is in liquidation, Hartford Investments Pty Ltd, and Mr Menon’s knowledge of the dealings of that company, including the allegations of the channelling of funds through that company.  It should also be noted that the conspiracy is said to involve a relatively large number of other persons in respect of each charge.

7. In these circumstances, given the nature of the charges and the fact that the subject matter of the examination which is sought to be protected from disclosure by orders relates to the company in question and the knowledge of Mr Menon about that company and individuals involved in one way or another with that company (some of whom are people alleged to be involved in the alleged conspiracy), I consider that there is a real risk of harm to the administration of justice from all of the material that has been pointed out in the submissions for Mr Menon of the kind that has been identified.  In the present case, the relevant harm is the provision of a real forensic advantage to the prosecution. 

8. In summary, I would not confine the redactions in the way that the Registrar has done, largely, it seems, to positive admissions in certain aspects.  Even in this regard, the other portions of the transcript contain some answers that might fit within that category of positive admissions.  Accordingly, I would be minded to uphold the whole of the review application.

9. As to the second ground in respect of costs, it has been accepted by the intervener that nothing could be put against Mr Menon having an order for costs in his favour if wholly successful both in these proceedings and before the Registrar, and also that Mr Menon should not then be responsible for the costs of the liquidators, who took a neutral position during the hearing of Mr Menon’s application.  It seems to me that this acceptance is unarguable on the facts of the matter, and accordingly there should be a costs order in Mr Menon’s favour both on this review application and in the application before the Registrar below and it should be the intervener alone who is responsible for the costs of the liquidators.

I certify that the preceding nine (9) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:        18 January 2019

SCHEDULE OF PARTIES

NSD 2192 of 2017
Interested Persons
Second Interested Person:	MRS WENTWORTH PTY LTD (ACN 169 277 070)
Third Interested Person:	WENTWORTH UNITS PTY LTD (ACN 169 272 879)