Du Bray v ACW
[2019] FCA 1586
•25 September 2019
FEDERAL COURT OF AUSTRALIA
Du Bray v ACW [2019] FCA 1586
Appeal from: ACW v Du Bray [2019] FCA 1075 File number: NSD 1181 of 2019 Judge: JAGOT J Date of judgment: 25 September 2019 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – insufficient doubt as to the correctness of the primary judge’s decision – no injustice to applicant supposing primary decision to be wrong – application for leave to appeal be dismissed Legislation: Evidence Act 1995 (Cth) ss 91, 91(1)
Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AG(1)(a)
Trans-Tasman Proceedings Act 2010 (Cth)
Cases cited: 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
Bellamy’s Australia Limited v Basil [2019] FCAFC 147
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Queensland) (Formerly Hillier, Parker (Queensland) Pty Ltd [2001] FCA 237; (2001) 183 ALR 700
The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341
Date of hearing: 18 September 2019 Registry: New South Wales Division: General National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 38 Counsel for the Applicant: Mr C D Wood Solicitor for the Applicant: Prime Lawyers Counsel for the Respondent: Dr C Ward SC Solicitor for the Respondent: Marque Lawyers ORDERS
NSD 1181 of 2019 BETWEEN: LEE FRANCIS DU BRAY
Applicant
AND: ACW
Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
25 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The application for leave to appeal be refused.
2.The applicant pay the respondent’s costs of the application as agreed or taxed.
3.Pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), for a period of 14 days from the date of these orders, these reasons for judgment not be published other than to the parties and their legal representatives.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
The application for leave to appeal
These reasons for judgment explain why I have decided that the application for leave to appeal should be dismissed.
In Bellamy’s Australia Limited v Basil [2019] FCAFC 147 at [7] Murphy, Gleeson and Lee JJ said:
…an applicant [for leave to appeal] must usually show that: (a) in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) supposing the decision to be wrong, substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). The sufficiency of the doubt in respect of the decision proposed to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. It has also been said that the considerations are cumulative such that leave ought not be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at 38 [5] (Ryan, Stone and Jagot JJ); Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 at 4 [3] (Jagot, Yates and Murphy JJ).
I have concluded that the applicant has not made out either of the cumulative requirements necessary for the grant of leave. To understand my conclusion it is necessary to provide some background material by reference to the reasons for judgment of the primary judge. For reasons which should become apparent I will not give the citation for the primary judge’s reasons because when they are published the names of the parties will differ from the names which presently appear on the Court’s file.
The primary judge’s reasons
As the primary judge explained in [2] of his reasons, the respondent to the application for leave had filed a creditor’s petition seeking a sequestration order against the applicant on the leave application based on debts arising from a series of orders made in other proceedings. That is, the respondent to the application for leave was the applicant before the primary judge and the applicant for leave was the respondent before the primary judge. To avoid doubt I will refer to the respondent to the application for leave as the creditor and the applicant for leave as the debtor.
The creditor’s petition as filed used pseudonyms that have been used in other proceedings instead of the names of the creditor and the debtor. By an amended interlocutory application the creditor sought the leave of the Court to identify the debtor by his full name for the purposes of proceeding with the creditor’s petition, obtaining and enforcing any sequestration order against the debtor, providing the creditor’s petition and any sequestration or other order to any necessary government authorities, and otherwise taking steps to enforce the orders made in certain other proceedings. The creditor also sought orders for the permanent suppression of her name and other information that could identify her, prohibition of any publication of any identifying information, suppression in this proceeding of the pseudonyms used to date including references to other proceedings to which two or more of these parties were a party, and a new pseudonym for the creditor unrelated to her name, as well as leave to amend the creditor’s petition to refer to the debtor by name and the creditor by her new pseudonym.
The primary judge made orders generally as sought by the creditor but stayed their effect, presumably to enable the debtor to make any application for leave to appeal. The application for leave to appeal concerns those orders.
The primary judge explained in [3] of his reasons that the parties had been involved in litigation arising from the breakdown of their relationship for the past 10 years. In the other proceedings which their disputes had generated suppression orders had been made, it being readily apparent that the creditor had applied for and obtained such orders to protect the creditor as a vulnerable person in the litigation in New Zealand. The dispute then extended across the Tasman and suppression and pseudonym orders essentially mirroring those made in New Zealand were made by the Federal Circuit Court of Australia, a single judge of this Court, and a Full Court of this Court.
The primary judge noted at [5]-[6] that what he referred to as the 2016 proceeding had been commenced by the debtor using his full name seeking to set aside the registration of two judgments of the High Court of New Zealand under the Trans-Tasman Proceedings Act 2010 (Cth). The creditor obtained suppression and pseudonym orders: [7]. From this, the primary judge noted that the debtor was not concerned about revealing his identity as, had he been concerned, he would not have filed the proceeding using the full names of the parties: [8]. The primary judge recorded that the judge who granted the suppression orders did so on the basis that he was satisfied that the orders were necessary to prevent prejudice to the proper administration of justice as provided for in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The judge had reasoned that as a matter of judicial comity this Court should act conformably with the New Zealand Courts and suppress the parties’ names, noting as he did so that the New Zealand Courts had made suppression orders because the creditor had been determined to be a vulnerable person under the applicable New Zealand legislation: [10]-[11]. The primary judge said that it was readily apparent that these suppression orders had been made to prevent the identification of the creditor, there being no specific order suppressing information that could identify the debtor: [12]. The primary judge also noted that the suppression orders included an order granting leave to the creditor to disclose any part of a confidential exhibit (revealing the parties’ full names) as and when necessary for enforcing orders made in the proceeding or any related proceeding. The primary judge referred to this as the leave to disclose order: [13].
The primary judge recorded that the judge dismissed the debtor’s application to set aside registration of the two New Zealand judgments (referred to as the 2016 judgment). Further, his Honour recorded that an appeal from that decision was also dismissed: [14].
The primary judge said that the litigation had now progressed to the bankruptcy stage. On the application of the creditor, a bankruptcy notice had been issued on 18 July 2018. It identified the creditor and the addressee by their pseudonyms apart from one minor immaterial difference: [15]. The debtor sought to have the bankruptcy notice set aside, again filing a proceeding using his full name, but was subsequently ordered to re-file the proceeding using his pseudonym from the previous proceedings: [16]. The debtor’s application to set aside the bankruptcy notice was dismissed but the judge in that matter noted that the use of pseudonyms on a creditor’s petition would not be appropriate given the statutory scheme concerning bankruptcy: [17]. The debtor failed to comply with the bankruptcy notice and the creditor filed the creditor’s petition and interlocutory application to which I have referred: [18].
The primary judge noted that the debtor opposed the making of the orders as sought by the creditor in the interlocutory application on four bases: [25]. The bases were:
(1)There is no inalienable right of any litigant to move to bankruptcy proceedings and the creditor had other avenues available to enforce a monetary judgment or order: [26].
(2)It would be unfair to the debtor to unwind the suppression regime that has been in place and his naming in the creditor’s petition would enable someone to conduct searches to link him to the Australian and New Zealand proceedings. While the suppression and pseudonym orders had been made on the creditor’s application they nevertheless also benefited the debtor: [27].
(3)The orders proposed do not fit within the leave to disclose order so it was necessary for the creditor to either vary the 2016 suppression orders or obtain a new order permitting her to name the debtor in the creditor’s petition. Further, the proposed orders would contravene the suppression orders made by a judge of the High Court of New Zealand and the creditor would also need to apply to vary that order: [28].
(4)The proposed orders constitute a new suppression regime so the creditor had to demonstrate that the orders were necessary to prevent prejudice to the proper administration of justice. The creditor had not done so on the basis of admissible evidence: [29].
The primary judge rejected each of these contentions. As to contention (2) (where the debtor alleged error arises) the primary judge said it was obvious the 2016 suppression orders were for the creditor’s benefit and while it may be accepted that the debtor also obtained some benefit this was a mere by-product of the orders. Accordingly, it did not follow that it would now be unfair to deprive the debtor of that benefit: [38]. The debtor had not adduced any evidence of damage or prejudice he would suffer from being named in a creditor’s petition beyond that which any person being so named would suffer. In any event, it could be inferred that the debtor is not genuinely concerned about his name being revealed because he had twice commenced proceedings in this Court using his own name: [39].
The primary judge also said that it should be noted that the 2016 judgment and suppression orders specifically refer to one of the judgments in the High Court of New Zealand where suppression orders were made, which contains an explanation of the orders so made that included the use of a pseudonym for the debtor: [40]. The debtor contended that the paragraphs of the judgment of the High Court of New Zealand containing this explanation (the protection of the plaintiff as a vulnerable person) were not admissible in this proceeding by reason of s 91 of the Evidence Act 1995 (Cth), which provides that evidence of a 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 primary judge said that the High Court of New Zealand’s reasons for making an order could not be described as a fact in issue in the proceeding so that s 91 did not preclude the creditor 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”: [41]. As will be discussed below, the debtor contends that the primary judge erred in his approach to s 91 of the Evidence Act.
The primary judge said that the paragraphs from the judgment of the High Court of New Zealand put paid to any suggestion that it was unfair to allow the debtor to be identified by his full name in the creditor’s petition and as a party to this proceeding: [42].
The primary judge also said that while there may be no inalienable right to commence bankruptcy proceedings, it did not follow that the creditor should inadvertently be precluded from taking that course by a suppression regime which was put in place for her own protection: [43].
Accordingly, the primary judge was satisfied that the first category of orders which the creditor sought relating to the creditor’s petition should be made: [44].
The creditor accepted that the second category of orders sought constituted a new suppression regime so she had to satisfy one of the grounds in s 37AG of the FCA Act, her contention being that the new suppression regime was necessary to prevent prejudice to the proper administration of justice as provided for in s 37AG(1)(a): [45].
The primary judge noted that the relevant criterion was “necessity” not mere desirability: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8], and that “necessary” is a “strong word”: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [30]. More than mere embarrassment is required: Australian Competition and Consumer Commission v Air New Zealand Limited (No 12) [2013] FCA 533 at [7]: [46].
The primary judge was satisfied as to the criterion in s 37AG(1)(a) because if the orders were not made, the purpose and effect of suppression orders made in the other proceedings in New Zealand and Australia would be undermined: [47].
His Honour, having referred to the history of the suppression orders in this Court and in New Zealand at [48]-[49], said that judicial comity is an important aspect of the administration of justice and that this Court would not readily act in a way which would undermine a suppression order made by a New Zealand court. Thus comity was a particularly strong basis for making suppression orders in this case: [50].
Further, his Honour said, it remained the case that an order suppressing information that would disclose the creditor’s identity was necessary to prevent prejudice to the proper administration of justice. It was clear that courts in both New Zealand and Australia accepted that suppression orders were necessary to protect the creditor and not merely to save her from embarrassment, annoyance or inconvenience. The primary judge noted that the debtor had not adduced evidence that the creditor’s circumstances had changed: [51]. This too, the debtor alleged, involved the primary judge in error.
The primary judge was thus satisfied that the new suppression orders should be made by reference to s 37AG(1)(a) of the FCA Act: [59].
The application for leave to appeal
The debtor contended that there was sufficient doubt as to the correctness of the primary judge’s decision and that substantial injustice would be caused to the debtor supposing the primary judge was wrong and leave was denied.
I disagree in both respects.
As to the existence of sufficient doubt, I do not accept the debtor’s contention that the primary judge did not identify the aspect of the administration of justice that would be prejudiced if the new pseudonym order was not made. His Honour did so in clear terms, which identified the need for judicial comity as an important aspect of the administration of justice so that this Court would not readily act in a way which would undermine suppression orders made by a New Zealand court: [50]. His Honour also identified that as the reason for the earlier suppression orders was the protection of the creditor, and the debtor had not adduced any evidence to the effect that circumstances had changed, that protection should continue. The protection of litigants when necessary is also part of the proper administration of justice: [51].
I do not accept the debtor’s contention that the primary judge erred in his application of s 91 of the Evidence Act with the result that there was no evidence of the creditor being a vulnerable person. The submissions for the debtor referred to The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 at [9] in these terms:
The conviction of the opponent is evidence of the elements of the offence with which he was convicted, but not of the detailed facts found by the sentencing judge or by the Court of Criminal Appeal dealing with his appeal: Evidence Act 1995 (NSW) ss.91 and 92, Gonzales v. Claridades [2003] NSWSC 508, 58 NSWLR 188. The detailed facts set out in the Court of Criminal Appeal’s judgment R v. Sukkar [2005] NSWCCA 54 may have some relevance to the opponent’s reputation, but cannot support findings by this Court as to what the opponent actually did, beyond the bare elements of the offence with which he was convicted.
The debtor’s submissions also referred to National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Queensland) (Formerly Hillier, Parker (Queensland) Pty Ltd ) [2001] FCA 237; (2001) 183 ALR 700 at [46] in which the Full Court said:
The judgment of Justice White in the proceedings in the Supreme Court of Queensland was admissible, if relevant, in the proceedings in this Court to prove its existence, date or legal effect. Evidence of the decision, or of a finding of fact in an Australian or overseas proceeding, is not admissible to prove the existence of a fact that was in issue in that proceeding: Evidence Act 1995 (Cth) s 91(1). Evidence that is not admissible under Part 3.5 of the Evidence Act 1995 (Cth) to prove the existence of a fact may not be used to prove that fact, even if it is relevant for another purpose: s 91(2).
It was submitted for the debtor that the Full Court’s reference to the “existence, date or legal effect” of a judgment set the boundaries of admissibility for the purpose of s 91 of the Evidence Act. In my view, however, the boundaries are set by the terms of s 91(1) itself – evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. In the present case, as the primary judge concluded, the status of the creditor as a vulnerable person was not a fact in issue in the New Zealand High Court proceeding. It was part of the history of the proceedings which the New Zealand High Court was recording to explain why it made suppression orders. I do not consider that there is any, let alone sufficient doubt about the correctness of the primary judge’s approach to the application of s 91 of the Evidence Act.
I also do not accept that the primary judge erred in his approach to judicial comity. The orders the primary judge made were different from the earlier orders but were not inconsistent with those orders. As the primary judge said, the earlier orders were for the creditor’s benefit, not the debtor. The orders the primary judge made ensured that the creditor would not be able to be identified despite the debtor’s name being disclosed. The debtor’s contentions of error in the application of judicial comity fail to take this fact into account. The primary judge’s focus on comity also did not distract him from the need for there to be proof that the orders were necessary. The primary judge was entitled, indeed, bound to take into account the reason why other courts and judges had made the suppression orders in order to ensure that he gave due weight to the consideration of judicial comity. In so doing, contrary to the debtor’s submissions, the primary judge was not bound to take into account the “whole body of orders, proceedings and judgments in the litigation between the parties”. He was entitled to identify what was relevant to the decision at hand and did so. In any event, this submission appeared to be an attempt to re-litigate an issue determined by the courts in New Zealand debarring the debtor from being heard in New Zealand proceedings. This application for leave does not enable the re-consideration of that matter.
Further, I do not accept that the primary judge reversed the onus of proof at [51]. Once it is accepted that it was proper for the primary judge to consider the other judgments for the purpose of understanding why the earlier suppression orders had been made (and not for the purpose of adopting any fact in issue in those proceedings), it is also apparent that it was appropriate for the primary judge to observe that the debtor did not suggest circumstances had changed in the interim. This did not reverse the onus of proof.
To the extent it was suggested, I do not accept that the primary judge overlooked s 37AE of the FCA Act, which provides that:
In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
The fact that the primary judge did not refer to that section in his reasons does not mean that it was not considered. It is clear from the terms of the reasons as a whole that his Honour was well aware that the provisions he was considering were part of a regime in which the starting point is the public interest in open justice.
Even if I were satisfied that there was sufficient doubt about the correctness of the primary judge’s decision, I am not persuaded that the debtor has established that he would suffer any, let alone substantial, injustice as a result of the decision.
The debtor submitted that it was inherently unfair for the matter to have proceeded as it did without the creditor having had to adduce evidence of the necessity of the order. I disagree. In what the primary judge recognised as the unusual circumstances of this case and the existence of the earlier suppression orders, there was no unfairness in the primary judge proceeding as he did.
The debtor submitted that the primary judge’s approach to s 91 of the Evidence Act was plainly wrong, so that the strength of the appeal supported the existence of substantial injustice. For the reasons given above, I am unable to accept this submission.
The debtor submitted that it should not be open to the creditor to take the benefit of the pseudonym orders and then to try to proceed by way of creditor’s petition, which required the disclosure of the debtor’s name. That is, there is substantial injustice to the debtor by being exposed to bankruptcy proceedings which the creditor ought not to be able to bring at all. I disagree with this submission. As the primary judge said at [43], the creditor should not be precluded from taking bankruptcy proceedings by reason of a suppression regime that was put in place for her protection.
The affidavit in support of the application for leave referred to the fact that if the debtor’s name is no longer suppressed then a link may be made between him and other entities, which may prejudice his ability to derive income and pay any debts related to judgments in the creditor’s favour. However, this is an inevitable consequence of the filing of a creditor’s petition and is not a relevant injustice to the debtor.
For these reasons, leave to appeal should be refused, with costs. Consistent with the submissions for the debtor, I will make an order suppressing publication of these reasons for judgment for 14 days to enable the debtor to consider his position.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 25 September 2019
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