Westpac Banking Corporation v Forum Finance Pty Limited (Greek Telephone Number)
[2021] FCA 1340
•6 October 2021
FEDERAL COURT OF AUSTRALIA
Westpac Banking Corporation v Forum Finance Pty Limited (Greek Telephone Number) [2021] FCA 1340
File number: NSD 616 of 2021 Judgment of: LEE J Date of judgment: 6 October 2021 Catchwords: PRACTICE AND PROCEDURE – Westpac seeking access to Mr Papas’ Greek telephone number to effect service – telephone number held by Mr Papas’ solicitor – where notice of ceasing to act filed by solicitor – whether a suppression order should be made over Greek telephone number – whether order necessary to prevent prejudice to proper administration of justice – inappropriate to extend suppression order to legal representatives of applicants in related proceedings and legal representatives of liquidators – suppression order calibrated Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG(1)(a), 37AI Cases cited: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
Liverpool City Council v McGraw-Hill Financial, Inc. [2018] FCA 1289
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 15 Date of hearing: 6 October 2021 Counsel for the Applicants: Mr J Giles SC with Ms C Hamilton-Jewell Solicitor for the Applicants: MinterEllison Counsel for the Liquidators: Mr R Jameson Solicitor for the Liquidators: Allens Counsel for Smartprint Fleet Management Pty Ltd (in liq) (receivers appointed): Ms S Jeliba Solicitor for Smartprint Fleet Management Pty Ltd (in liq) (receivers appointed) Cornwalls Counsel for SMBC Leasing & Finance: Ms E L Beechey Solicitor for SMBC Leasing & Finance: Jones Day Counsel for Mr Panetta: Ms J Gatland Solicitor for Mr Panetta: Hunts.Law ORDERS
NSD 616 of 2021 BETWEEN: WESTPAC BANKING CORPORATION ABN 33 007 457 141
First Applicant
WESTPAC NEW ZEALAND LIMITED (COMPANY REGISTRATION NUMBER COMPANY NUMBER 1763882)
Second Applicant
AND: FORUM FINANCE PTY LIMITED (IN LIQUIDATION) ACN 153 301 172
First RespondentBASILE PAPADIMITRIOU
Second Respondent
VINCENZO FRANK TESORIERO (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
6 OCTOBER 2021
THE COURT ORDERS THAT:
1.The interlocutory application dated 28 September 2021 filed by Antony Resnick and Mark Robinson, in their capacities as the joint and several receivers of Smartprint Fleet Management Pty Limited (receivers appointed) (in liquidation) and the interlocutory application dated 2 October 2021 filed by Westpac be both dismissed with no order as to costs.
2.Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (Act), until further order of the Court, disclosure of the exhibit marked ‘RVP-02’ is prohibited on the basis set out in s 37AG(1)(a) of the Act that it is necessary to prevent prejudice to the proper administration of justice, other than to:
(a)the legal representatives of Westpac Banking Corporation and Westpac New Zealand Limited, the applicants in this proceeding NSD616/2021;
(b)the legal representatives of SMBC Leasing and Finance, Inc., the applicant in proceeding NSD681/2021;
(c)the legal representatives of Societe Generale, the applicant in proceeding NSD642/2021; and
(d)the legal representatives of Jason Preston and Jason Ireland, as Liquidators and Provisional Liquidators of the externally administered respondent companies (Companies) in this proceeding NSD616/2021.
3.In Order 2(d), Companies means the following:
First Respondent
Forum Finance Pty Limited (in liquidation) ACN 153 301 172
Fourth Respondent
Forum Group Financial Services Pty Ltd (provisional liquidators appointed) ACN 623 033 705
Fifth Respondent
Forum Group Pty Ltd (Receivers Appointed) (in liquidation) ACN 153 336 997
Sixth Respondent
Forum Enviro Pty Ltd (provisional liquidators appointed) ACN 168 709 840
Seventh Respondent
Forum Enviro (Aust) Pty Ltd (provisional liquidators appointed) ACN 607 484 364
Ninth Respondent
14 James Street Pty Ltd (in liquidation) ACN 638 449 206
Tenth Respondent
26 Edmonstone Road Pty Ltd (in liquidation) ACN 622 944 129
Eleventh Respondent
5 Bulkara Street Pty Ltd (in liquidation) ACN 630 982 160
Twelfth Respondent
6 Bulkara Street Pty Ltd (in liquidation) ACN 639 734 473
Thirtieth Respondent
The Forum Group of Companies Pty Ltd (in liquidation) ACN 151 964 626
Thirty-First Respondent
Iugis Pty Ltd (in liquidation) ACN 632 882 243
Thirty-Sixth Respondent
Spartan Consulting Group Pty Ltd (in liquidation) ACN 168 989 544
Thirty-Seventh Respondent
Intrashield Pty Ltd (in liquidation) ACN 133 426 534
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)LEE J:
By way of interlocutory application, Westpac seeks an order that a solicitor, Mr Roco Panetta, be directed to inform the Court and Westpac of certain information known by Mr Panetta: principally, the current contact details of his erstwhile client, the second respondent, Basile Papadimitriou (also known as Mr Papas).
The circumstances in which this application is made are that a notice of ceasing to act (notice) had been served on Mr Papas. The notice nominated an address at Rozelle in New South Wales as the last named residential or business address for Mr Papas. Of course, it was common ground that the peripatetic Mr Papas is not a resident in Rozelle, but rather has remained in Greece, despite suggesting from time to time that he would return to Australia. Various efforts were made to procure a proper address for service for Mr Papas, which were unsuccessful. It was against this background that this application was made.
In response to the application, Mr Panetta has sworn an affidavit which makes it clear that he has only communicated with Mr Papas through an Australian and a Greek mobile telephone number, and an email address (which the evidence discloses is now no longer operative). Mr Panetta gave evidence, which was not challenged, that he has no knowledge of a current residential address for Mr Papas and could provide no further assistance to the Court in this regard.
It appears from the evidence that the only information that Mr Panetta has as to the contact details of Mr Papas, which Westpac does not have, is what is described in the affidavit as the “Greek telephone number” provided by Mr Papas to Mr Panetta on the basis that he would not disclose it to anyone.
Details as to the Greek telephone number were provided to the Court by way of a so-called and self-described “confidential exhibit” to Mr Panetta’s affidavit. Pending the determination of this application, I made an interim order under s 37AI of the Federal Court of Australia Act 1976 (Cth) (Act) to have the effect of preserving the status quo of confidentiality prior to determining the merits for an application for the suppression or non-publication of the Greek telephone number.
As senior counsel for Westpac concedes, there is no further utility in seeking the orders sought in the interlocutory application in circumstances where all Westpac seeks is that Mr Panetta provide the information that Westpac does not have as to the current contact details of Mr Papas. This material has now been disclosed to the Court by the reading of Mr Panetta’s affidavit and the tender of the exhibit marked “RVP-02” providing the details, being the “confidential exhibit”.
The default position is that once tendered, the exhibit is available to all. The question then arises is whether I should make a suppression order or a non-publication order in relation to the details of the Greek telephone number. Mr Panetta, consistently with what he perceived to be his obligations to his client, has done what he can in order to keep the information confidential. But that does not determine the question of whether or not a suppression or non-publication order ought to be made. This issue, of course, is governed by the provisions of Pt VAA, Div 2 of the Act, which deals with non-publication and suppression orders.
A non-publication order is an order that prohibits or restricts the publication of information; a suppression order prohibits or restricts the disclosure of information. For present purposes, we are dealing with a suppression order. It is trite that s 37AF of the Act, read together with s 37AG(1)(a) of the Act, includes the power for the Court to restrict or prohibit the disclosure information where the order is necessary to prevent prejudice to the proper administration of justice: see Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 (at [5] per Edelman J).
However, before the Court makes an order pursuant to s 37AF of the Act, there must be some material upon which the Court can reasonably reach the conclusion that it is necessary to make the proposed order: see Liverpool City Council v McGraw-Hill Financial, Inc. [2018] FCA 1289 (at [110] per Lee J), where I went on to observe that mere belief that an order is necessary, is insufficient.
In deciding whether to make an order restricting the availability of the information, I am required, as a mandatory consideration, to take into account that the primary objective of the administration of justice is to safeguard the public interest in open justice: see s 37AE of the Act. I am also conscious of the fact that when considering the term “necessary” as used in section 37AG(1)(a), the word “necessary” is a strong word: see Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at 664 [30] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ).
This is an unusual case. There is a need for Westpac to contact Mr Papas in order to provide, by way of service, documents in the proceedings. Access to the Greek mobile telephone number will help facilitate service on Mr Papas of Court documents. In these circumstances, where it is not apparent there are any other modes of bringing documents to the attention of Mr Papas in any direct way, it is clearly inappropriate for me to prevent access to the information by the legal representatives of Westpac. Accordingly, any suppression order extending to those solicitors would be inappropriate.
A similar position pertains in relation to the legal representatives for the applicants in the other inter partes proceedings being conducted to which Mr Papas is a party and which are currently being heard together with the Westpac proceeding. Further, it would be inappropriate for me to calibrate the order in such a way as to prevent the liquidators from having access to the information.
It seems to me the difficulty is that unless I make some form of suppression order, the public interest in this case is likely to lead to attempts being made, particularly by media organisations, to use the Greek mobile telephone number to contact Mr Papas. Although Mr Panetta gave evidence in his affidavit that he believes that open access to the Greek telephone number may lead to “harassment by media outlets”, it is unnecessary to put it that highly.
Even if there is a perception by Mr Papas that the Greek telephone number has become open to all, there is at least a realistic possibility that it will no longer become an appropriate vehicle for which service can be effected of Court documents. It follows that I am satisfied the criterion as to necessity is met and a suppression order will be made (but one which allows access to the information along the lines I have indicated).
Accordingly, the order sought in the interlocutory application does not need to be made and the interlocutory application is dismissed with no order as to costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate:
Dated: 27 October 2021
SCHEDULE OF PARTIES
No. NSD 616 of 2021
Federal Court of Australia
District Registry: New South Wales
Division: General
Fourth Respondent: Forum Group Financial Services Pty Ltd (provisional liquidators appointed) ACN 623 033 705 Fifth Respondent: Forum Group Pty Ltd (Receivers Appointed) (in liquidation) ACN 153 336 997 Sixth Respondent: Forum Enviro Pty Ltd (provisional liquidators appointed) ACN 168 709 840 Seventh Respondent: Forum Enviro (Aust) Pty Ltd (provisional liquidators appointed) ACN 607 484 364 Eighth Respondent: 64-66 Berkeley St Hawthorn Pty Ltd ACN 643 838 662 Ninth Respondent: 14 James Street Pty Ltd (in liquidation) ACN 638 449 206 Tenth Respondent: 26 Edmonstone Road Pty Ltd (in liquidation) ACN 622 944 129 Eleventh Respondent: 5 Bulkara Street Pty Ltd (in liquidation) ACN 630 982 160 Twelfth Respondent: 6 Bulkara Street Pty Ltd (in liquidation) ACN 639 734 473 Thirteenth Respondent: 23 Margaret Street Pty Ltd ACN 623 715 373 Fourteenth Respondent: 1160 Glen Huntly Road Pty Ltd ACN 639 447 984 Fifteenth Respondent: 14 Kirwin Road Morwell Pty Ltd ACN 641 402 093 Sixteenth Respondent: Canner Investments Pty Ltd ACN 624 176 049 Seventeenth Respondent: 123 High Street Taradale Pty Ltd ACN 639 872 512 Eighteenth Respondent: 160 Murray Valley Hwy Lake Boga Pty Ltd ACN 641 392 921 Nineteenth Respondent: 31 Ellerman Street Dimboola Pty Ltd ACN 641 392 887 Twentieth Respondent: 4 Cowslip Street Violet Town Pty Ltd ACN 639 872 352 Twenty-First Respondent: 55 Nolan Street Maryborough Pty Ltd ACN 641 392 912 Twenty-Second Respondent: 89 Betka Road Mallacoota Pty Ltd ACN 641 393 179 Twenty-Third Respondent: 9 Gregory Street Ouyen Pty Ltd ACN 641 392 707 Twenty-Fourth Respondent: 9 Main Street Derrinallum Pty Ltd ACN 639 872 736 Twenty-Fifth Respondent: 286 Carlisle Street Pty Limited ACN 610 042 343 Twenty-Sixth Respondent: 275 High Street Golden Square Pty Ltd ACN 639 870 545 Twenty-Seventh Respondent: Mazcon Investments Hellas IKE Twenty-Eighth Respondent: Palante Pty Ltd ACN 135 344 151 Twenty-Ninth Respondent: Anastasios Giamouridis Thirtieth Respondent The Forum Group of Companies Pty Ltd (in liquidation) ACN 151 964 626 Thirty-First Respondent Iugis Pty Ltd (in liquidation) ACN 632 882 243 Thirty-Second Respondent Iugis (UK) Limited Thirty-Third Respondent Iugis Holdings Limited Thirty-Fourth Respondent Iugis Global Financial Services Limited Thirty-Fifth Respondent Iugis Finance Limited Thirty-Sixth Respondent Spartan Consulting Group Pty Ltd (in liquidation) ACN 168 989 544 Thirty-Seventh Respondent Intrashield Pty Ltd (in liquidation) ACN 133 426 534 Thirty-Eighth Respondent Tesoriero Investment Group Pty Ltd ACN 161 088 115 Thirty-Ninth Respondent Mangusta (Vic) Pty Ltd ACN 631 520 682 Fortieth Respondent 193 Carlisle Street Enterprises Pty Ltd ACN 612 615 237 Forty-First Respondent 8-12 Natalia Ave Oakleigh Pty Ltd ACN 643 838 626 Forty-Second Respondent Iugis Hellas IKE Forty-Third Respondent Iugis Energy SA
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