McDonald v Neffati (No.2)

[2015] FCCA 1870

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCDONALD v NEFFATI (No.2) [2015] FCCA 1870

Catchwords:
BANKRUPTCY – Preservation of assets – interlocutory order.

PRACTICE AND PROCEDURE – Certificate under s.128A of the Evidence Act 1995.

Legislation:  

Bankruptcy Act 1966 ss.54, 263, 267
Evidence Act 1995 s.128A

Applicant: GEOFFREY DAVID MCDONALD THE TRUSTEE OF THE BANKRUPT ESTATE OF MONCEF NEFFATI

Respondent: MONCEF NEFFATI (A BANKRUPT)

File Number: SYG 1254 of 2015

Judgment of: Judge Street

Hearing date: 6 July 2015

Date of Last Submission: 6 July 2015

Delivered at: Sydney

Delivered on: 6 July 2015

REPRESENTATION

The applicant appeared in person

The respondent appeared in person

ORDERS

1. Exhibit A and Exhibit B be provided to the applicant under s.128A of the Evidence Act 1995.

2. The respondent is issued a certificate under s.128A of the Evidence Act 1995 in respect of the whole of the information in Exhibit A and Exhibit B.

3. Order 2 made on 8 May 2015 is extended up to and including 6 August 2015.

4. Order 4 made on 8 May 2015 is extended up to and including 6 August 2015.

5. The matter is fixed for directions on 6 August 2015 at 9:30 am.

6. There be liberty to apply on 24 hours’ notice.

7. Costs be reserved.

Note the certificate given to the respondent in the present case was as follows:

CERTIFICATE UNDER SECTION 128A OF THE EVIDENCE ACT 1995

Pursuant to the order made 6 July 2015 under section 128A(6) of the Evidence Act 1995 this Court certifies under section 128A of the Evidence Act 1995 of the Commonwealth in respect of the whole of the information in Exhibit A and Exhibit B that is evidence of information to which subsection 128A(8) of that Act applies and this is a certificate under section 128A(7) of that Act given to Moncef Neffati, being the respondent in the proceedings.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1254 of 2015

GEOFFREY DAVID MCDONALD THE TRUSTEE OF THE BANKRUPT ESTATE OF MONCEF NEFFATI

Applicant

And

MONCEF NEFFATI (A BANKRUPT)

Respondent

REASONS FOR JUDGMENT

1. This is a case in which the applicant as the trustee in bankruptcy obtained interim freezing order relief in respect of alleged properties in Tunisia said to be the property of the respondent who is a bankrupt. The court moulded an ancillary disclosure order in respect of affidavit evidence by the respondent to be placed in a sealed envelope, not to be opened without an order of a judge of the Court, to protect the respondent’s important right to privilege against self-incrimination.

2. The respondent has filed two affidavits that were placed in sealed envelopes in accordance with the ex parte orders in relation to the issues raised by the trustee in respect of the alleged property. The respondent has given evidence that he has completed a statement of affairs and has had explained to him the effect of s.128A of the Evidence Act 1995 (Cth).

3. The respondent gave evidence that he objects to the production of whole of the affidavits on the grounds of the privilege against self-incrimination. The respondent is, however, willing to permit the material to be provided to the other party in these proceedings by order of the court, provided a certificate is issued by the court under s.128A to the respondent in respect of the information the subject of the claim of privilege against self-incrimination.

4. The applicant has drawn the Court’s attention to the potential offences under ss.54, 263 and 267 of the Bankruptcy Act 1966 (Cth). For the purpose of these civil proceedings and protection of the respondent’s fundamental right against self-incrimination. I am satisfied the two affidavits, marked as exhibits A and B are information that may tend to prove that the respondent has committed one or other of the potential offences identified and that these are offences under Australian law.

5. In light of the oral evidence given by the respondent as to the making of a statement of affairs and testimony claiming his privilege against self-incrimination in respect of the two affidavits, I find the respondent has made objection to disclosure of the whole of Exhibit A and Exhibit B and that the grounds for the objection are reasonable. The potential offence arises from both the bankruptcy of the respondent and the making of the statement of affairs in Australia by the respondent. In these circumstances there is no potential offence that could arise from the disclosure of the information by the respondent under a foreign law.

6. The evidence is clearly relevant evidence to these civil proceedings in respect of the continuation of the freezing orders and final relief concerning the identification, nature value and recovery of property that has vested in the trustee. The evidence is necessary for the proper administration of the bankrupt estate and given the protection that can be provided by a certificate the interests of the interests of justice require the information in Exhibit A and Exhibit B to be disclosed.

7. In these circumstances I am satisfied that the requirements of s.128A(6)(a), (b) and (c) of the Evidence Act 1995 are met. Accordingly it is appropriate for the Court to make an order requiring the whole of the two affidavits, being Exhibit A and Exhibit B, containing the information identified within s.128A(6)(a) to be the subject of an order that the information in the two exhibits be produced to the other party to the proceedings and the making of an order for the respondent bankrupt to be given a certificate under s.128A in respect of the whole of that information.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 July 2015