Pulitano v Van EPS

[2019] FCCA 3907

FEDERAL CIRCUIT COURT OF AUSTRALIA

PULITANO v VAN EPS [2019] FCCA 3907

Catchwords:
BANKRUPTCY – application for suppression order – whether suppression order is necessary for the proper administration of justice or to prevent prejudice to the applicant or anyone else – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth) ss. 88H, 88G(1)(a)

Federal Court of Australia Act 1976 (Cth) s.37AG(1)(a)

APPLICANT: GUISEPPE PULITANO AS TRUSTEE FOR THE 4-8 WELWYN CRESCENT TRUST

RESPONDENT: JULIE ANNE-MARIE VAN EPS IN HER PERSONAL CAPACITY AND AS TRUSTEE FOR THE VAN EPS FAMILY TRUST

File Number: BRG 657 of 2019

Judgment of: Judge Jarrett

Hearing date: 26 November 2019

Date of Last Submission: 26 November 2019

Delivered at: Brisbane

Delivered on: 26 November 2019

REPRESENTATION

Counsel for the Applicant: Mr De Waard

Solicitors for the Applicant: Piper Alderman

The Respondent appeared in person

ORDERS

1. The application in a case filed on 20 November, 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 657 of 2019

GUISEPPE PULITANO, AS TRUSTEE FOR THE 4-8 WELWYN CRESCENT TRUST

Applicant

And

JULIE ANNE-MARIE VAN EPS, IN HER PERSONAL CAPACITY AND AS TRUSTEE FOR THE VAN EPS FAMILY TRUST

Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.88H of the Federal Circuit Court of Australia Act 1999 (Cth). It was said by the applicant in her documents to be an application pursuant to s.37AG(1)(a) of the Federal Court of Australia Act 1976, but, this Court does not have jurisdiction under that Act; it has jurisdiction under its own Act. 

2. Section 88H of the FCC Act is essentially the equivalent to s.37AG of the FC Act. Section 88H provides:

   88H  Procedure for making an order

   (1)  The Federal Circuit Court of Australia may make a suppression order or non‑publication order on its own initiative or on the application of:

   (a)  a party to the proceeding concerned; or

   (b)  any other person considered by the Federal Circuit Court of Australia to have a sufficient interest in the making of the order.

3. Relevantly, 88H(2)(a) provides that:

   (2)  Each of the following persons is entitled to appear and be heard by the Federal Circuit Court of Australia on an application for a suppression order or non‑publication order:

   (a)  the applicant for the order;

   (b)  a party to the proceeding concerned;

   (c)  the Government (or an agency of the Government) of the Commonwealth or a State or Territory;

   (d)  a news publisher;

   (e)  any other person who, in the Federal Circuit Court of Australia’s opinion, has a sufficient interest in the question of whether a suppression order or non‑publication order should be made.

4. Subsection 88H(3) provides that:

   (3)  A suppression order or non‑publication order may be made at any time during a proceeding or after a proceeding has concluded.

5. And s.88H(4) provides that:

   (4)  A suppression order or non‑publication order may be made subject to such exceptions and conditions as the Federal Circuit Court of Australia thinks fit and specifies in the order.

6. The Court can make interim orders or orders of varying duration. 

7. As the applicant points out in her submissions, the Court can make such an order where it is necessary to prevent prejudice or to aid the proper administration of justice: s.88G(1)(a) of the FCC Act.

8. The primary proceedings in respect of which the applicant seeks the suppression order is a creditor’s petition that is advanced against her by the respondent to these proceedings.  The creditor’s petition relies upon an act of bankruptcy constituted by the applicant’s failure to comply with a bankruptcy notice served upon her.  The bankruptcy notice, in turn, relies upon a judgment of the Supreme Court of Queensland which, as I apprehend the material, arose from a claim for damages for breach of contract between the applicant and the petitioning creditor. 

9. That contract was for the sale and purchase of a parcel of land.  The purchase price was about $5.4 million.  The applicant defaulted on the contract; it was terminated and she was sued for damages.  The petitioning creditor, as I understand the material, on-sold the property for a substantial loss.  The applicant suggests that the reason why she defaulted on the contract was because a payment that she says was owed to her or one of her interests, a company of which she was the sole director and shareholder, was not paid.  That payment, she says, was due to it by the Australian Taxation Office.  It was a payment in excess of $3 million and rather than make the payment, the Tax Office, she says, did the opposite;  it in fact raised a tax liability against the relevant company of something like $3.6 million together with some penalties of almost an equal amount.  And so, she says, by reason of the actions of the Taxation Office she was unable to complete the contract. 

10. Exhibit 1 in these proceedings is an undertaking as to bail.  The defendant in those proceedings is the applicant before me.  The undertaking as to bail relates to some 33 charges relating to, essentially, fraud.  There are charges of attempting to obtain financial advantage by deception, influencing a Commonwealth public official, uttering forged documents and the like.

11. The applicant says that the issues in the criminal proceedings that have been preferred against her are the same as the issues before me.  She says that they overlap and fit neatly together.  In my view, however, she is entirely wrong; that is because the issues that arise in the criminal proceedings are different to the issues which arise in this proceeding.  The issues that arise in this proceeding are whether the preconditions for the making of a sequestration order are made out, and, on the material that I have read, there does not seem to be any dispute about that. 

12. There has been the service of a bankruptcy notice.  There has been non‑compliance with the bankruptcy notice.  There has been the service of a creditor’s petition.  The petition, as far as I can tell – there is no dispute about its verification.  The basis upon which the applicant opposes the creditor’s petition, according to her notice of opposition, is that she is solvent.  How issues of her solvency might be connected with the criminal proceedings is not made plain in her material. 

13. I should say some things about her affidavits; there are a few of them.  The record will show the lengths to which I have gone to identify the affidavits upon which the applicant wishes to rely.  But her affidavits are not, by and large, affidavits of evidence, but rather affidavits of assertion.  There is very little by way of evidence which would assist her case on this suppression order application.  To simply assert various matters is not to provide evidence of them, and as I say, her affidavits are very heavy on assertion and very light on evidence. 

14. Whether or not the ATO has abused its power is irrelevant to the present proceedings; that is because these proceedings are for the sequestration of her estate because she has committed an act of bankruptcy.  The reason why she has committed an act of bankruptcy or has not been able to pay the debt which has led to her not complying with the bankruptcy notice which has led to her committing an act of bankruptcy is neither here nor there.  That she has had difficulties with the Tax Office which might be litigated in another forum is really neither here nor there. 

15. There does not seem to be any issue taken by the applicant with the proposition that there is a valid and subsisting judgment of the Supreme Court of Queensland against her; that she was served with the bankruptcy notice; that she has not complied with it, and that she was validly served with a creditor’s petition.  They are the important matters, and the reason for which she found herself in difficulty is not important in those circumstances. 

16. It might be said that an inquiry into the applicant’s solvency might traverse matters which might be the subject of something in the criminal proceedings.  The applicant says, quite rightly, that she is entitled to remain silent about the matters the subject of the charges that have been preferred against her.  She is obliged to say or do nothing until she is called upon by a properly constituted Court to do so.  This is not a Court which has any jurisdiction in respect of the criminal matters. 

17. But it is difficult to see, and it is certainly not explained in any coherent way, why it is or why it might be said that an investigation into her solvency here, that is, an assessment of her assets and liabilities as they stand now, would traverse anything that might arise in the criminal proceedings given that the subject matter of those charges is conduct that occurred some time ago. 

18. I am not satisfied that it is necessary for the proper administration of justice or to prevent prejudice to the applicant or anyone else for there to be the making of a suppression order or a non-disclosure order, and the application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 26 November, 2019.

Associate: 

Date: 13 May 2020