Supreme Court New South Wales Medium Neutral Citation: JRD GHALLOUB PTY LTD v ANTHONY GHALLOUB ROBERT ELTOBBAGI v ANTHONY GHALLOUB [2013] NSWSC 56 Hearing dates: 05.02.2013 Decision date: 05 February 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Decline to grant a certificate under the Evidence Act, 1995 (NSW) s 128A. Order that Notices of Motion be dismissed. Directions given for further conduct of proceedings. Catchwords: EVIDENCE - facts excluded from proof - on grounds of privilege - self-incrimination - disclosure of the redacted information would not materially assist plaintiff but may, by virtue of s 128A(8) of the Evidence Act 1995 (NSW), impede, and not materially assist, the conduct of criminal or other proceedings - whether an order under s 128A(6) of the Evidence Act 1995 (NSW) should be granted - whether a certificate under s 128A(7) of the Evidence Act 1995 (NSW) should be granted. Legislation Cited: Evidence Act 1995 (NSW), s 128A Cases Cited: - Texts Cited: - Category: Interlocutory applications Parties: Anthony Ghalloub (Defendant in the proceedings numbered 2012/393580; First Defendant in the proceedings numbered 2012/397188) AJG and Associates Pty Ltd (Second Defendant in the proceedings numbered 2012/397188) JRD Ghalloub Pty Ltd (First Plaintiff in the proceedings numbered 2012/393580) Joseph Raymond Ghalloub (Second Plaintiff in the proceedings numbered 2012/393580) Robert Eltobbagi (Plaintiff in the proceedings numbered 2012/397188) Representation: A G Jamieson (Counsel for the Defendant in the proceedings numbered 2012/393580 and the First Defendant in the proceedings numbered 2012/397188) JJ Loofs (Counsel for the First and Second Plaintiffs in the proceedings numbered 2012/393580) P Crossland (Counsel for the Plaintiff in the proceedings numbered 2012/397188) Coleman Greig Lawyers (Solicitor for the First and Second Plaintiffs in the proceedings numbered 2012/393580) Jackson Lalic Lawyers (Solicitor for the Plaintiff in the proceedings numbered 2012/397188) Jeffrey Choy Legal (Solicitor the Defendant in the proceedings numbered 2012/393580 and the First Defendant in the proceedings numbered 2012/397188) File Number(s): 2012/00393580 2012/00397188 - Judgment - EX TEMPORE (REVISED) 1There are before the Court two sets of proceedings including one Anthony John Ghalloub as a defendant. 2Proceedings numbered 2012/393580 were commenced by the filing of a statement of claim on 19 December 2012. The plaintiffs are J R D Ghalloub Pty Ltd and Joseph Ghalloub. The sole defendant is Mr Anthony Ghalloub. The statement of claim asserts a variety of claims for relief including, importantly, claims by both plaintiffs for a money judgment on a liquidated claim totalling $5.68 million. The first plaintiff claims $2.5 million. The second plaintiff claims $3.63 million. The defendant has yet to file a defence and, from submissions made today by Mr A G Jamieson of counsel on behalf of the first defendant, it is at least doubtful that there will be a defence filed in answer to the liquidated claim. 3Proceedings numbered 2012/397188 were commenced by the filing of a summons on 21 December 2012. The plaintiff is Robert Eltobbagi. The defendants are Anthony John Ghalloub (the first defendant) and AJG & Associates Pty Ltd (the second defendant). On 25 January 2013 the plaintiffs filed, without leave, a document styled an "amended summons" but it does not appear to contain any material alterations of the summons. I proceed on the basis that the summons continues to represent the form of Originating Process upon which the plaintiff moves for final relief. An affidavit sworn by the plaintiff on 21 December 2002 in support of the summons indicates that he claims a liquidated amount in the vicinity of $1 million or thereabouts, as well as other relief, from the defendants. From submissions made today by Mr Jamieson on behalf of the first defendant, I apprehend that the plaintiff's claims for relief in these proceedings are unlikely to be the subject of any substantial contest. 4I have been informed by Mr Jamieson that Mr A J Ghalloub has under active consideration the question of whether he should file a debtor's petition in bankruptcy. 5On 21 December 2012 the Equity vacation judge (Brereton J) made freezing orders against the defendants in both proceedings. Those orders, in each case, required, in effect, that Mr A J Ghalloub file and serve an affidavit of discovery. The freezing orders, in each case, are presently operating until further order. 6Mr A J Ghalloub has, personally, sworn three affidavits in response to those orders. First, on 30 January 2013 he swore an affidavit, in substantially the same terms, in both sets of proceedings. Secondly, on 31 January 2013 he swore an affidavit in the proceedings numbered 2012/393580. Thirdly, on 4 February 2013 he swore an affidavit in the proceedings numbered 2012/393580 which was intended, apparently, to be deployed in both sets of proceedings. 7Mr A J Ghalloub's solicitor (Mr Choy) has also sworn affidavits in response to the orders of 21 December 2012. 8Mr Ghalloub's affidavit of 4 February 2013 calls for consideration of s 128A of the Evidence Act 1995 (NSW). A redacted form of the affidavit was filed and served on behalf of the deponent. It will remain in the records of the Court. 9Invoking the provisions of s 128A, Mr A J Ghalloub has provided to the Court, in a sealed envelope, an unredacted form of the affidavit sworn by him on 4 February 2013. To the extent of his redaction of that affidavit, Mr A J Ghalloub takes an objection on the ground of self-incrimination and invites the Court to grant him a certificate under s 128A(7). 10In compliance with s 128A(4), I determine that there are reasonable grounds for the objection taken by Mr Ghalloub. 11Upon a consideration of s128A(6), I am not satisfied that the interests of justice require that the redacted information be disclosed. In my opinion, the interests of justice would be best served by the proceedings being brought to finality as soon as possible, and for enforcement proceedings then to be undertaken. I am not satisfied that disclosure of the redacted information would materially assist the plaintiffs in the conduct of the present proceedings. I am concerned that, if I were to make an order under s 128A(6) and to grant a certificate under s 128A(7), disclosure of the redacted information would not materially assist the plaintiffs but may (by virtue of s 128A(8)) impede, and not materially assist, the conduct of criminal or other proceedings. 12In those circumstances I decline to make on order under s 128A(6) or to grant a certificate under s 128A(7). 13In the circumstances and in compliance with s 128A(5), I do not require the redacted information to be disclosed in these proceedings, and I propose to return the unredacted form of the affidavit to Mr A J Ghalloub. 14Having declined to make an order under s 1286A(6) and to grant a certificate under s 128A(7), I turn my attention to what should be done to advance the conduct of these proceedings. 15Both should be moved towards final orders with as much dispatch as is practical. 16In each set of proceedings the plaintiffs seek an opportunity to cross-examine Mr A J Ghalloub. In the proceedings numbered 2012/393580 the plaintiffs seek to do this by a notice of motion filed on 1 February 2013. In the proceedings numbered 2012/397188 the plaintiff seeks to do it by a notice of motion filed on 1 February 2013 which has been the subject of amendment today (5 February 2013). 17In light of the affidavits filed by Mr A J Ghalloub and his assertion of an entitlement to privilege against self-incrimination, I see little utility in occupying the time of the Court in allowing the plaintiffs to cross-examine Mr Ghalloub at this stage of the proceedings. 18I propose accordingly to dismiss these notices of motion. Subject to any submissions that might be made to the contrary, I propose to order that the costs of the motions be the plaintiffs' respective costs in their proceedings. 19In the proceedings numbered 2012/397188 (but not in the proceedings numbered 2012/393580) Mr A J Ghalloub has filed a notice of motion seeking orders designed, in effect, to provide him with relief against the operation of the freezing orders. That notice of motion was filed on 1 February 2013. During submissions today Mr Ghalloub's counsel, Mr Jamieson, announced that the motion was to be withdrawn. He invited the Court to dismiss it. I propose to act upon that invitation. The motion will be dismissed with costs. 20The end result of my deliberations today is that I make the following orders. 21First, in both sets of proceedings, I decline to make an order under s 128A(6) of the Evidence Act, and to grant a certificate under s 128A(7) of the Act, in respect of the unredacted affidavit of the defendant Mr A J Ghalloub sworn 4 February 2013. Accordingly, I order that that form of the affidavit be returned forthwith to Mr A J Ghalloub. 22Secondly, in the proceedings numbered 2012/393580 I order that the plaintiffs' notice of motion filed on 1 February 2013 be dismissed and that the costs of the motion be the plaintiffs' costs in the proceedings. 23Thirdly, in the proceedings numbered 2012/397188 I order that the plaintiff's amended notice of motion filed on 5 February 2013 be dismissed and that costs of that motion be the plaintiff's costs in the proceedings. I also order that the first defendant's notice of motion filed on 1 February 2013 be dismissed with costs. 24Insofar as the plaintiffs in proceedings numbered 2012/393580 may have incurred any costs referable to that notice of motion I would be prepared to entertain an application that they be awarded those costs. 25I will entertain submissions from the parties on the question of what directions might be given to enable the proceedings to be brought to finality with dispatch. ADDENDUM 26After hearing submissions, his Honour gave the following directions for further conduct of the proceedings: (a) In the proceedings numbered 2012/393580: - (1)Decline to make an order under s 128A(6) of the Evidence Act, and to grant a certificate under s 128A(7) of the Act, in respect of the unredacted affidavit of the Defendant Mr A J Ghalloub sworn 4 February 2013. Accordingly, order that that form of the affidavit be returned forthwith to Mr A J Ghalloub. (2)Order that the Plaintiffs' Notice of Motion filed on 1 February 2013 be dismissed, and that the costs of the Motion be the Plaintiffs' costs in the proceedings. (3)Order that the Defendant file and serve a Notice of Appearance no later than 7 February 2013. (4)Order that leave be granted to the Plaintiff to file an amended Statement of Claim, and direct that any such amended Statement of Claim pursuant to that leave be filed no later than 8 February 2013. (5)Direct that the Defendant file and serve on or before 19 February 2013 such (if any) Defence as he proposes to file. (6)Direct that the proceedings be listed for directions before the Registrar at 9am on 27 February 2013. (7)Order that the parties be granted leave to issue subpoenas returnable on 25 February 2013. (b) In the proceedings numbered 2012/397188: - (1)Decline to make an order under s 128A(6) of the Evidence Act, and to grant a certificate under s 128A(7) of the Act, in respect of the unredacted affidavit of the Defendant Mr A J Ghalloub sworn 4 February 2013. Accordingly, order that that form of the affidavit be returned forthwith to Mr A J Ghalloub. (2)Order that the Plaintiff's Amended Notice of Motion filed on 5 February 2013 be dismissed and that the costs of the Motion be the Plaintiff's costs in the proceedings. (3)Order that the First Defendant's Notice of Motion filed 1 February 2013 be dismissed with costs. (4)Direct that the Defendants file a Notice of Appearance or Notices of Appearance no later than 7 February 2013. (5)Order that the proceedings proceed by way of pleadings. (8)Order that the Plaintiff file a Statement of Claim no later than 12 February 2013. (6)Order that the Defendants file and serve on or before 19 February 2013 such (if any) Defences as they propose to file. (9)Order that the parties be granted leave to issue subpoenas returnable on 25 February 2013. (10)Direct that the proceedings be listed for directions before the Registrar at 9am on 27 February 2013." 27In the course of submissions from counsel, his Honour elaborated his Reasons for Judgment with statements to the following effect. First, the rulings made in the Reasons for Judgment by reference to s 128A of the Evidence Act do not, of themselves, preclude future demands for discovery or the like being made on Mr AJ Ghalloub or, of themselves, entitle him to the benefit of the privilege against self-incrimination on an ongoing basis. Secondly, the benefit of the privilege is available only if objection to disclosure is taken to each particular demand for disclosure. Thirdly, if the Plaintiffs maintain that Mr AJ Ghalloub has failed to comply with orders for disclosure made in connection with the existing Freezing Orders it remains open to them either to move the Court to have Mr Ghalloub dealt with for contempt or to object to him being permitted to conduct a defence of their claims without first purging his alleged contempt or moving the Court for a discharge or variation of the orders the subject of alleged non-compliance. Fourthly, an object of the Court's directions is to enable the plaintiffs an opportunity to clarify their claims for relief and to require Mr AJ Ghalloub either to express an intention to defend the proceedings or to fall into default in defence of the proceedings so as to ground an application for default judgment should the plaintiffs be advised to make such an application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2013