Bank of Valletta PLC v National Crime Authority [1999] FCA 791

Bank of Valletta PLC v National Crime Authority [1999] FCA 791

The potential exposure to criminal prosecution under Maltese law by reason of compliance with the Notice does not constitute a reasonable excuse for failing to comply with the Notice, given the public interest in investigating Australian crime, the fact that the documents concern Australian transactions and were maintained in Malta by the Bank's own procedures, and as the risk of prosecution, while real, is not sufficient in these circumstances. The availability of alternative means via Maltese authorities was not established in this case, as the NCA lacked the requisite suspicion for invoking Maltese processes. Accordingly, the existence of foreign secrecy laws did not excuse...

Parties
Applicant: Bank of Valletta PLC; First Respondent: National Crime Authority; Second Respondent: Aziz Gregory Melick
Jurisdiction
Australia
Judgment Date
17 June 1999
Procedural Posture
Application for Declaratory Relief / Final Judgment
Outcome
Declaration made that operation of s 34 of the Banking Act 1994 (Malta) or s 257 of the Criminal Code (Malta) does not constitute a reasonable excuse for failing to comply with the Notice. Application otherwise dismissed with costs.
Legal Topics
Production of Documents Under Statutory Notice, Foreign Secrecy/confidentiality Laws, Interpretation of 'reasonable Excuse' Under Australian Statute, Extraterritoriality of Foreign Law, Expert Evidence on Foreign Law
Banking Law Criminal Law International Law Evidence Production of Documents Under Statutory Notice Foreign Secrecy/confidentiality Laws Interpretation of 'reasonable Excuse' Under Australian Statute Extraterritoriality of Foreign Law +1 more

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Parties

Bank of Valletta PLC

Applicant

National Crime Authority

First Respondent

Aziz Gregory Melick

Second Respondent

Procedural Posture

Application for Declaratory Relief / Final Judgment

Legal Issues

  1. 1 Whether compliance with a statutory notice to produce documents issued to a foreign bank constitutes a reasonable excuse under s 29(3) of the National Crime Authority Act 1984 when compliance may contravene Maltese law
  2. 2 Whether risk of criminal liability under Maltese law may excuse non-compliance with an Australian statutory notice
  3. 3 Whether alternative means exist for Australian authorities to obtain the documents via Maltese legal processes

Ratio Decidendi

The potential exposure to criminal prosecution under Maltese law by reason of compliance with the Notice does not constitute a reasonable excuse for failing to comply with the Notice, given the public interest in investigating Australian crime, the fact that the documents concern Australian transactions and were maintained in Malta by the Bank's own procedures, and as the risk of prosecution, while real, is not sufficient in these circumstances. The availability of alternative means via Maltese authorities was not established in this case, as the NCA lacked the requisite suspicion for invoking Maltese processes. Accordingly, the existence of foreign secrecy laws did not excuse...

Court Disposition

Declaration made that operation of s 34 of the Banking Act 1994 (Malta) or s 257 of the Criminal Code (Malta) does not constitute a reasonable excuse for failing to comply with the Notice. Application otherwise dismissed with costs.

Orders

  • Declaration: Any operation which s 34 of the Banking Act 1994 (Malta) or s 257 of the Criminal Code (Malta) may have in relation to the applicant by reason of its compliance with the Notice issued by the second respondent on 30 October 1998 does not constitute a reasonable excuse for failing to comply with that Notice.
  • Application otherwise dismissed with costs.