Re Lattouf, N.M. & Anor [1994] FCA 913

Federal Court of Australia|1994-11-22|Before: Sheppard J, Beazley J, Sackville J

FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No NB 5251 of 1992

CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 22 NOVEMBER 1994 FEDERAL COURT « AUSTRALIA IN R_ JUDGMENT ny HIS HONOUR: This matter comes before me for directions

following a special case that has been determined by the Full Court of this court on 16 September 1994. In the course of that determination the Full Court answered the following question: Did the Federal Court have power to grant the application under section 60(1)(b) of the Bankruptcy Act 1966 (Commonwealth)? Answer: Yes. The Full Court also ordered that the matter be

Mr Katz, who has appeared today on behalf of the Director of Public Prosecutions, has helpfully provided an outline of relevant facts. I will incorporate that outline in this judgment

as it conveniently sets out the course of the proceedings. On 4 February 1992 Mr Lattouf was convicted in the District Court at Parramatta of an offence against s 125 of the Crimes Act 1900 (NSW) (larceny by a bailee). Also on that day, the Court, acting s.558 of that Act, deferred passing sentence on Mr Lattouf in respect of that conviction upon

On 13 August 1992 Mr Lattouf was called up before the District Court for breach of one of the conditions of his recognizance, the matter being returnable on 16 October 1992. The matter was stood over on that day and on a number of subsequent days and had not been heard on its

On 20 April 1993 Sheppard J. made on Mr Lattouf's application an order staying in part the proceedings referred to above. That order was based on an affidavit sworn by Mr Lattouf (dated 16 March 1993) and on things said in Court by Mr Lattouf's counsel. Neither Mr Lattouf's stay application nor his affidavit had been served on the DPP (NSW), nor did the DPP (NSW) appear at

Having become aware of the making of the order by Shenper? J, the DPP (NSW) moved on 14 May 1993 to have it discharged. An affidavit by Helen Brady (dated 13 May

The DPP's application came before Sheppard J. When it did, hig Honour suggested that a case be stated for a Full

On 17 March 1994 Beazley J. (in the absence of Sheppard J.) referred to a Full Court (relevantly) a question as to the

Court's power to make the order which it had made on 20

On 25 May 1994 a Full Court heard argument on the matter.

On 16 September 1994 the Full Court decided that the Court had the power to make the order of 20 April 1993 and remitted the matter to a single judge of the Court, so that the discharge application by the DPP (NSW) could be heard

On 6 October 1994 the DPP (NSW) filed an application in the High Court seeking special leave to appeal from the Full Court's decision. That application was filed to ensure that the DPP (NSW) would not be out of time if it should afterwards become necessary to challenge the Full Court's decision, a matter dependent on the ultimate outcome of the DPP's discharge application before a single judge of the Court. The special leave application is presently in

In addition to the affidavit of Mr Lattouf referred to above, two further affidavits have been filed by Mr Lattouf in the Federal Court proceedings, one by Mr George Kekatos

and one by Mr Jim Kekatos. Both were sworn on 13 May 1993.

The DPP (NSW) wishes to file further affidavit evidence in support of his discharge application and seeks directions as to the time limit for the filing of such evidence by him and of any affidavit evidence in reply to such further evidence filed by him. He also seeks a date for the

hearing of his discharge application by a single judge.

I do not understand Mr Debuse, who appears for Mr Lattouf, to have disputed the accuracy, at least for today's purposes, of

Mr Debuse submitted that the further determination of the matter in this court ought to await the outcome of the special leave application which has been filed, so I have been informed, in the High Court. Mr Katz responds to that submission by pointing out that the High Court at this stage almost certainly would regard the special leave application as being premature, if not futile, because of the need to determine the factual questions that are involved in the proceedings still before this Court. If those proceedings are determined unfavourably to Mr Lattouf there would be no need to continue with the special leave application to the High Court. I think this is a very powerful factor in support of

the conclusion that that matter should proceed in this Court. Another factor which, in my view, leads to this result is that Mr Lattouf is still subject to criminal proceedings. By this I mean that the final determination of the District Court as to the consequences of what is said to have been a breach of recognisance must await the outcome of the proceedings in this Court. It seems to me undesirable that the criminal process should be delayed any longer than is necessary. Accordingly, in the circumstances, it seems to me that the appropriate course is to proceed with the matter in this Court by specifying a timetable to be followed. If the exercise of discretion to stay the proceedings is set aside, the criminal process will continue, and the High Court special leave application will presumably not proceed. The outcome of the proceedings in this court will thus effectively determine what, if anything, is to happen with the

special leave application presently before the High Court.

The next question then is what directions ought to be specified for the conduct of the matter in this court. Mr Katz indicates that any further evidence to be filed on behalf of the DPP can be served and filed within seven days. Accordingly, I direct that any further affidavits to be filed in the proceedings on behalf of the DPP should be filed and served on or before 29 November 1994. I also think it would be very helpful for the DPP to provide an outline by way of points of claim of the case that it intends to pursue in this court. Mr Katz has referred me to an authority which indicates that the matter should be dealt with by way of a hearing de novo. Whether or not this is correct, it

is important, in my view, that the issues be clarified as soon as possible. Accordingly, I direct the DPP to provide an outline of its case by way of points of claim within 14 days from today's

Mr Debuse has indicated that he requires some further time in order both to obtain instructions and to obtain a probation report from authorities in Victoria that he contends is necessary for the purposes of his case. I make no comment upon whether such a report would be admissible in the proceedings. It is, however, I think, proper that Mr Debuse should have enough time in order to do that. He has indicated that he will be able to obtain instructions from his client over the Christmas period. He has indicated that the probation report would be likely to take about six weeks. In the circumstances I direct Mr Lattouf to serve and file any affidavit evidence, including any reports

upon which he intends to rely, on or before 3 February 1995.

I direct that Mr Lattouf file points of defence in response to the points of claim on or before 3 February 1995. I list the Matter for further directions, possibly before me but it will

depend upon the state of the court's list, on 9 February 1995.

I will fix a date for return of subpoenas on Wednesday, 14

I certify that this and the preceding 5 pages are a true copy of the Reasons for

Mr B Debuse insstructed by Messrs Kekatos & Associates, Solicitors, appeared for the

Mr L. Katz instructed by the Crown Solicitor of N.S.W. appeared for the respondent.

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Judgment (32 paragraphs)

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