Paviello and Paviello
[2019] FamCA 735
•17 October 2019
FAMILY COURT OF AUSTRALIA
| PAVIELLO & PAVIELLO | [2019] FamCA 735 |
| FAMILY LAW – EVIDENCE – Whether a section 128 certificate should be issued to a 3rd party for an affidavit ordered to be filed by him and oral evidence to be given in the proceedings. |
| Crimes Act 1900 (NSW) s 35 Evidence Act 1995 (Cth) s 128 |
| Field & Kingston [2018] FamCAFC 145 Reid v Howard (1995) 184 CLR 1 Rio Tinto Zinc Corporation v Westinghouse Electric Corporation (1978) AC 547 Ross v Internet Wines Pty Ltd (2004) |
| APPLICANT: | Ms Paviello |
| FIRST RESPONDENT: | Mr A Paviello |
| SECOND RESPONDENT: | Mr B Paviello |
| FILE NUMBER: | SYC | 2323 | of | 2017 |
| DATE DELIVERED: | 17 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 9 October 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lloyd SC |
| SOLICITOR FOR THE APPLICANT: | Jordan Djundja Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms Bunn |
| SOLICITOR FOR THE FIRST RESPONDENT: | Blanchfield Nicholls Partner |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Dura |
| SOLICITOR FOR THE SECOND RESPONDENT: | Parker Law |
Orders
The Court certifies under section 128 of the Evidence Act 1995 (Cth) that Affidavit evidence filed in compliance with Order 4 made on 16 May 2019 and oral evidence given in relation to that Affidavit in these proceedings by Mr B Paviello concerning his interest in properties at 1 and 2 D Street, Suburb E and the Paviello Trust and R Trust at the time of proceedings number SYC3563/2014 is covered by a certificate pursuant to section 128(3) and the evidence given is evidence to which section 128(7) of that Act applies.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Paviello & Paviello has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2323 of 2017
| Ms Paviello |
Applicant
And
| Mr A Paviello |
First Respondent
And
| Mr B Paviello |
Second Respondent
REASONS FOR JUDGMENT
This is an application by the second respondent who has been joined in family law proceedings by his former sister-in-law in proceedings between his brother and sister-in-law.
The second respondent’s application is for a certificate to be issued to him under section 128 of the Evidence Act 1995 (Cth) prior to him filing an Affidavit in and or giving oral evidence.
The certificate he has sought is in the following terms and is attached to his Affidavit:
The court certifies under section 128 of the Evidence Act 1995 (Cth) that Affidavit and oral evidence in these proceedings given by Mr B Paviello in a sworn Affidavit, whilst testifying under oath as to his financial position, the value and nature of his assets and any interest he had in the properties at 1 and 2 D Street, Suburb E and any interest in Paviello Trust and R Trust at the time of the proceedings in SYC3563/2014 is covered by a certificate pursuant to section 128(3) and the evidence given is evidence to which section 128(7) of that act applies.
Mr Dura of Counsel represented second respondent, Mr Lloyd SC of Counsel the wife and Ms Bunn, solicitor represented the husband. The husband agreed with the second respondent’s position. The wife’s position was that the second respondent had failed satisfy the Court that a certificate should be issued to him at this time.
The evidence was as follows:
a)For the second respondent:
i)Application in a Case and Affidavit dated 31 May 2019;
ii)Wife’s Points of Claim dated 5 September 2017; and
iii)Case outline and submissions of the second respondent.
b)The wife filed no material and I heard Mr Lloyd’s submissions.
Section 128 of the Evidence Act 1995 (Cth) is as follows:
Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b) is liable to a civil penalty.
(2) The court must determine whether or not there are reasonable grounds for the objection.
(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:
(a) that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b) that the court will give a certificate under this section if:
(i) the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii) the witness gives the evidence after being required to do so under subsection (4); and
(c) of the effect of such a certificate.
(4) The court may require the witness to give the evidence if the court is satisfied that:
(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b) the interests of justice require that the witness give the evidence.
(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
(6) The court is also to cause a witness to be given a certificate under this section if:
(a) the objection has been overruled; and
(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(7) In any proceeding in an Australian court:
(a) evidence given by a person in respect of which a certificate under this section has been given; and
(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
Thus, from the reading of this section it is clear the Court must consider four matters:
a)Is there a compulsion upon the second respondent to give the evidence?
b)Whether the second respondent has objected to giving the evidence;
c)That the giving of evidence may tend to prove that he has committed an offence;
d)That the grounds of the objection are reasonable.
Going to the first question to be answered. Despite this submissions of Mr Lloyd that the second respondent has not been compelled to give the evidence it is clear from the Orders made by the Chief Justice on 16 May 2019 that he has been so compelled.
At the call over of this matter on 16 May 2019 Orders were made by consent referring this matter to arbitration. As part of those Orders His Honour ordered at point 4 that each party was to file an Affidavit within 42 days. Additionally, the second respondent was given leave to file an Application in a Case seeking a certificate under section 128 of the Evidence Act 1995 (Cth).
At the time these Orders were made it would have been clear to all parties that they would be required to give evidence under oath at the arbitration and this is confirmed in second respondent’s Affidavit at paragraph 3.
Secondly, the second respondent has objected to giving evidence in the absence of a certificate at paragraph 13 of his Affidavit.
Thirdly, it was argued by the second respondent there is an obligation on parties in family law proceedings for example Rule 13.01 and 13.06 of the Family Law Rules 2004 (Cth) to provide full and frank disclosure as between them produce document and answer specific questions and that this is also a compulsion.
I do not accept the submission by Mr Lloyd that the second respondent can choose to not comply with Order 4 of his Honour’s Orders to file an Affidavit within 42 days and that no compulsion upon him exists. It does exist.
Secondly, the second respondent has objected to giving evidence in the absence of a certificate at paragraph 13 of his Affidavit.
It is clear from the decision of Field & Kingston [2018] FamCAFC 145 (“Field & Kingston”) that there is no difference in giving oral evidence to that in written form such as an Affidavit for the purposes of a certificate under section 128 of the Evidence Act 1995 (Cth).
Thus, the next question to be answered is will the giving of the evidence tend to prove that he has committed an offence.
Mr Lloyd submitted it was totally unclear from reading his material namely his Affidavit and the Wife’s Points of Claim what offence the evidence may tend to prove he has committed. That the mere recitation in his Affidavit that he may be subject to civil and/or criminal penalties under section 35 of the Crimes Act 1900 (NSW) without the Court knowing what the purported crime is did not assist his case.
Going to his Affidavit and what it reveals. At paragraph 5 the second respondent refers to, “allegations made by the wife in proceedings in this Court particularly regarding the interest of the husband (sic his brother) in the properties at 1 and 2 D Street, Suburb E and any interest he has in the Paviello Trust and the R Trust.”
I can divine from the Affidavit that the allegations relate to the properties at 1 and 2 D Street, Suburb E and Paviello Trust and the R Trust held by the second respondent during his marriage and the husband’s interest if any in them. This is apparent from paragraph 11 of his Affidavit, otherwise, I accept the submissions of Mr Lloyd that the Affidavit is somewhat silent on the potential criminality of the second respondent giving evidence in respect of these entities and properties.
Going to the wife’s Points of Claim.
It would appear that the issues referred to by the second respondent in paragraph 5 of his Affidavit described as, “allegations made by the wife in this Court” concern documents arising out of family law proceedings between the second respondent and his former wife.
The “allegations” to use the second respondent’s words, commence at point 6 of the wife’s Statement of Claim wherein she asserts that at the time of proceedings between the second respondent and his former wife in 2014 the second respondent held 1 and 2 D Street, Suburb E as to 50% of its value on trust for her husband.
Additionally, at point 8 the wife states in the second respondent’s Financial Statement sworn 1 September 2014 he asserted real estate at 1 D Street, Suburb E valued at $2 million was half held by the second respondent in trust for the husband as to 50% of its value.
Thirdly, that the second respondent had an interest in the Mr B Paviello Family trust which included 50% of 2 D Street suburb E with the remaining 50% held on trust for the husband.
Fourthly, the second respondent’s interest in the Mr B Paviello Family trust included two townhouses (namely Lot … and Lot …) N Street, Suburb O which were held in trust for the husband.
Fifthly, the second respondent’s interest in the Paviello Trust included 50% of an amount owned by M Pty Ltd of $398,748 with 50% owed to the husband.
Going now to the Law.
I have relied upon the Full Court decision of Field & Kingston.
Mr Lloyd argued that the Court must know or was entitled to know the evidence that the second respondent asserted would give rise to the need for the Court to issue has a certificate and he must disclose the evidence he intends to give so that the court can determine whether he needs the certificate. This is a somewhat chicken and the egg argument.
Their Honours in Field& Kingston referred to the decision of the New South Wales Court of Appeal of Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436 (“Internet Wines”). In that matter an order was made compelling a party to give specific evidence. The applicant had sought freezing orders in relation to accounts said to contain funds which had been wrongfully removed by Ross from the applicant company. The New South Wales Court of Appeal considered the effect of orders made by the trial judge for Mr Ross to swear an Affidavit disclosing and identifying all funds removed by him from the relevant bank accounts. As their Honours opined, the orders made by the trial judge clearly contemplated that the evidence may tend to incriminate Ross as they further provided that if he wished to make a claim for privilege against self-incrimination in relation to the Affidavit, he was to deliver to the primary Judge’s Associate the sworn Affidavit as ordered together with an Affidavit supporting the claim to privilege with the intention that the documents would be inspected by the primary judge who would then assess the claim of privilege. Mr Ross appealed this decision and was successful.
Giles JA said:
But by compliance with the obligation (to swear the Affidavit) his fundamental common law right would already be infringed. In order to have his claim to privilege determined he would have to disclose the material which he said was incriminatory and should not be disclosed. There would be offence to the principle underlying the observation of Lord Denning MR in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation (1978) AC 547 at 574 that a witness “should not be compelled to go into detail because that may involve his disclosing the very matter to which he takes objection.”
In considering the effect of the ordered disclosure on a claim for privilege against self-incrimination the State Appeal Court held that:
The order to make disclosure had the effect of compelling Ross to give evidence but by requiring the delivery of the Affidavit in advance of making a claim to privilege the orders had infringed the privilege against self-incrimination.
This is a finely balanced exercise the Court must undertake.
At paragraph 30 of Field & Kingston their Honours state:
The foundation for the granting of section 128 certificate lies not in the manner in which the evidence is to be given but in the witness being compelled to give the evidence.
Their Honours further held that Rules 13.01 to 13.06 of the Family Law Rules 2004 (Cth) do not compel a party to give evidence in circumstances where they claim they are carrying out their right to remain silent or exercising their privilege against self-incrimination. Thus, the second respondent’s submissions that the Rules compel him is not accepted by me.
Their Honours in Field & Kingston quoting from the decision of the High Court in Reid v Howard (1995) 184 CLR 1 (“Reid v Howard”) at 37:
There is simply no scope for an exception to the privilege other than by statute.
And further:
Moreover it would be anomalous to allow that a person could refuse to answer questions in criminal proceedings or before investigative bodies where the privilege has not been abrogated if that person could be compelled to answer interrogatories or otherwise make disclosure with respect to the same matter in civil proceeding.
The facts in this matter and in Field & Kingston differ in an important respect. In Field & Kingston the wife had not been ordered to give the evidence but sought to counter allegations made by the husband by providing a further Affidavit. In these proceedings the second respondent has been ordered to give the evidence by way of filing an Affidavit in relation to his case for the purposes of the arbitration and thus there is a compulsion clearly upon him to comply with that order.
Going now to the fourth question do reasonable grounds exist for the issuing of the section 128 certificate?
In the matter of Field & Kingston the Full Court held that Her Honour had misapplied the test for the granting of the certificate as her Honour had, “rather than consider whether there were reasonable grounds for the wife making the objection, misdirected her consideration by requiring the wife to “identify the evidence” which she claimed may tend to incriminate her”.
At paragraph 72:
Her Honour erred because she was requiring proof of the commission of the offence rather than assessing whether “from the circumstances of the case and the nature of the evidence which the witness is called to give that there is a reasonable ground to apprehend danger to the witness from him his being compelled to answer.”
Thus, I do not accept the submission of Mr Lloyd that the Court must know or was entitled to know the evidence that the second respondent asserted would give rise to the need for the Court to issue has a certificate and that he must disclose the evidence he intends to give so that the Court can determine whether he needs the certificate.
Finally, and using the words of the Full Court in Field & Kingston is there a reasonable ground to apprehend danger to the second respondent from him being compelled to answer, namely file his Affidavit to, as he says at paragraph 5 of his Affidavit:
Answer the allegations of the wife in regard to interests of his brother in properties at 1 and D Street, Suburb E, the A & S Petalotis trust and the R Trust.
And at paragraph 11 of his Affidavit:
The evidence I seek to give under the protection of a section 128 certificate includes:
Additional evidence in relation to real properties 1 and D Street, Suburb E held during my marriage.
Additional evidence in relation to my interest in the Paviello trust.
Additional evidence in relation to my interest in the R Trust.
I have formed the view that the second respondent has made out all 4 grounds that are necessary for me to grant him a section 128 certificate prior to filing his Affidavit evidence in chief and for his oral evidence for the following.
I am satisfied he is compelled to file the evidence and that he objects to filing the evidence unless a certificate is granted.
It is clear to me that the evidence which the second respondent seeks to obtain a certificate in relation to concerns the interest he and his brother may or may not have/had in two items of real estate and two trusts.
It is also clear to me that there was a specific disclosure by the second respondent in proceedings between him and his former wife in relation to these assets in 2014. It is now 2019 and dealings in respect of these assets in the last five years will now form part of the facts in issue before the arbitrator or the Court.
It is also clear that the Court or arbitrator will need to know the current interests of the second respondent and or the husband in the items of real estate and trusts in 2019, that the second respondent seeks to place this information before the Court and asserts that to do so without a certificate infringes his right to not incriminate himself.
I find that the above circumstances of the case satisfy me that there is a reasonable ground to apprehend danger to the second respondent from his being compelled to answer and provide information in relation to these clearly salient and important issues as pleaded by the wife and thus I will grant him a certificate in terms relevant only to the items of real estate 1 and 2 D Street, Suburb E and the two trusts and not otherwise.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 17 October 2019.
Associate:
Date: 17 October 2019
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