Case: Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608
Outcome: referred to
By order made herein dated 7 November 2007 I appointed Mr Colin Nicol as receiver to deal with certain funds which had been held in the names of the respondent, the Terra Nova Cache and the Principality of Camside. The circumstances in which the receiver came to be appointed are explained in my judgment in Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608. Mr Nicol entered on his task promptly. He has discovered various funds which are additional to those which are identified in Schedule A of the order made on 7 November 2007. He has also identified a large number of persons who claim to have made deposits in the Terra Nova Cache. He has sought the co-operation and assistance of the respondent in identifying depositors and the whereabouts of moneys contributed by them. He has received very little assistance from the respondent in response to these requests. 2 By an Amended Notice of Motion dated 4 February 2008 Mr Nicol seeks various orders to assist him in the performance of his duties. I heard argument on the Amended Notice of Motion on 6 February 2008. Following argument I indicated that I would make orders in the terms of paragraphs 1, 2 and 3 of the Amended Notice of Motion and would publish reasons for doing so at a later date. I reserved judgment on whether orders in the terms proposed in paragraphs 4, 5 and 6 of the Amended Notice of Motion should be made. What follows are my reasons for making orders 1 to 3 and my reasons, following further consideration, for determining that orders in the terms proposed in paragraphs 5 and 6 (with some minor variations) should be made. 3 The first order sought by Mr Nicol is the addition of a number of funds to those identified in Schedule A of the order which I made on 7 November 2007. The evidence established, in each case, a reasonable basis for the conclusion that the source of the moneys in those funds was contributions made to the Terra Nova Cache or the Principality of Camside. Counsel for the respondent did not direct any specific argument to the question of whether order 1 should or should not be made. It is appropriate that the order should be made. 13 Counsel for the receiver argued that these orders should be made because the respondent had, during the period of the receivership, failed to respond to requests made by the receiver that he provide relevant documents to the receiver. In particular the receiver relied on the failure of the respondent to comply with paragraph five of the orders made on 7 November 2007 which required the respondent to provide to the receiver "all bank statements, books of accounts, receipts, invoices, correspondence or other documents in his possession, custody, power or control relating to monies received from members of the public for deposit in the Terra Nova Cache." The receiver's solicitor had written on numerous occasions to the respondent requesting that he comply with the Court's order. The respondent had not done so. He had, through his solicitors, made general claims that he could not be required to produce any documents because of the protection afforded him by the privilege against self incrimination. In one letter the respondent acknowledged that he had three documents (bank statements) which fell within the terms of the order. He also provided the receiver with a copy of documentary evidence tendered in the course of the trial of the principal proceeding in which the order appointing the receiver was made: see Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608. The respondent has failed to advise the receiver whether there are additional documents, which although not in his possession, are within his power or control. 14 Counsel for the respondent opposed the making of the proposed orders. He made what he described as "an in limine objection" to the making of any order that would require the respondent to swear an affidavit of documents or discover any documents on the ground that to do so would infringe his right to protection against self incrimination. 15 In making the in limine objection counsel for the respondent relied on an affidavit, sworn by the respondent, in which he deposed that: "3. It has been alleged that with respect to the Principality of Camside and Terra Nova Cache, I am in breach if the Banking Act , sections 7 and 66 , which are respectively an indictable offence and an offence. Such allegations have already been tried herein and found proven on a civil basis, and it has been maintained by APRA, a Commonwealth instrumentality, that the right to bring criminal charges against me with respect of the alleged breaches of the relevant sections remains extant. 4. The documents requested clearly relate to the alleged breaches of the Act and, accordingly, I object to producing the same pursuant to the right against self incrimination." It is noted that the respondent makes an in limine objection to production. He does not identify the documents for which a privilege claim is made. He does not explain why their production would tend to incriminate him. Moreover he offers no reason why he should not be required to swear an affidavit of documents. 19 As already noted counsel for the respondent sought to argue that the circumstances which confronted the respondent in this case were such as to bring it within the exceptional category which Deane J referred to in Refrigerated Express. I invited counsel to articulate with precision the rare and exceptional circumstances which rendered the present case one which fell within the exception to the ordinary rule. He submitted that his client had been found, in Siminton (No 6) , to have contravened ss 7 and 66 of the Banking Act . These findings had been made on the civil standard. His client apprehended that he might, at some time in the future, be charged with having committed criminal offences by contravening those provisions. He contended that the mere acknowledgement by the respondent that he had in his possession, custody or control documents of the character referred to in the proposed order could be used in evidence against him in such a criminal proceeding.