A v B - [2006] FMCA 454

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A v B

[2006] FMCA 454

HUMAN RIGHTS – Human Rights and Equal Opportunity Commission Act – s.46PP Application for injunction – medical practitioner allegedly divesting assets whilst application before the Commission – ex parte order – orders sought preventing publication of identity of parties or of material tending to identify them.

Sex Discrimination Act 1984 (Cth)
Federal Magistrates Act 1999 (Cth), s.61(c)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46(P)(1)
Evidence Act 1929 (Cth)
State Criminal Law Consolidation Act 1935

Applicant:

Respondent:

File Number:

ADG 107 of 2006

Judgment of:

Lindsay FM

Hearing date:

30 March 2006

Date of Last Submission:

N/A

Delivered at:

Adelaide

Delivered on:

30 March 2006

REPRESENTATION

Counsel for the Applicant:

Ms J.L. Deuter

Solicitors for the Applicant:

Hunt & Hunt

Solicitors for the Respondent:

N/A

ORDERS – EX PARTE

The Respondents and each of them be restrained and an injunction is hereby granted restraining them and each of them until further order:
(a)whether in the case of the first Respondent by himself, by his respective servants or agents or any of them or otherwise howsoever; and
(b)whether in the case of the second Respondent by its directors, officers, servants or agents or any of them or otherwise howsoever;
from removing (or causing or permitting to be removed or taking steps to remove) out of the jurisdiction of this Court any of his, its or their assets (and without limiting the generality thereof including, real property, chattels, money and beneficial interests) or from disposing of or transferring, charging, mortgaging, diminishing and dissipating or in any way howsoever dealing with:
1.1 The real property of the first Respondent or his interest therein and more particularly described as:
1.1.1Certificate of Title Volume 5880 Folio 768 (Unit 4, Strata Plan 3861 in the area named Dernacourt, Hundred of Yatala);
1.1.2Certificate of Title Volume 5955 Folio 563 (Lot 1, Primary Community Plan 23268 in the area named Glynde, Hundred of Adelaide;
1.1.3Certificate of title Volume 5918 Folio 628 (Allotment 1125, Deposited Plan 64844 in the area named Northgate, Hundred of Yatala);
1.1.4Certificate of Title Volume 5911 Folio 339 (Allotment 11, Deposited Plan 63379 in the area named Burton, Hundred of Munno Para);
1.1.5Certificate of Title Volume 5528 Folio 750 (Allotment 1, Deposited Plan 49715 in the area named Magill, Hundred of Adelaide;
1.2 The proceeds of the sale or transfer of four real properties owned by the first Respondent more particularly described as:
1.2.1Certificate of Title Volume 5676 Folio 89 (Allotment 56, Deposited Plan 17145 in the area named Parafield Gardens, Hundred of Yatala;
1.2.2Certificate of Title Volume 5105 Folio 345 (Allotment 802, Deposited Plan 35967 in the area named McCraken, Hundred of Gawler;
1.2.3Certificate of Title Volume 5044 Folio 91 (Unit 4/12 Fourth Avenue, Glenelg East;
1.2.4Certificate of Title Volume 5378 Folio 689 (Allotment 135, Deposited Plan 11296 in the area named Rosslyn Park, Hundred of Adelaide).
That pursuant to s.61(c) of the Federal Magistrates Act 1999 (Cth) nothing in this injunction shall prevent any third party from lawfully exercising against any of the assets referred to in paragraph 1 hereof any right of encumbrance which may exist at the date hereof pursuant to any dealings with either of the Respondents prior to the date hereof.
That the Applicant forthwith serve a sealed copy of this order on the Respondent.
That further consideration of this matter is adjourned to Monday 3 April 2006 at 11.30 am.
That during the period of the adjournment the publication of the name of the Applicant or of the Respondents or either of them and the publication of information likely to enable the identification of the Applicant or the Respondents or either of them is forbidden.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 107 of 2006

Applicant

And

Respondent

EX PARTE

REASONS FOR JUDGMENT

Before me this afternoon are applications that are brought ex parte, by the applicant, who has recently launched a proceeding before the Human Rights and Equal Opportunity Commission, in relation to her claim to be entitled to relief under the Sex Discrimination Act 1984 (Cth).
The circumstances in which those applications have been brought are summarised in the affidavit of the applicant, sworn on 30 March 2006, filed on the same day; in particular, in the annexure to that document, which constitutes a statement given, presumably to police officers, in relation to the conduct in which B is alleged to have engaged towards her.
There can be no doubting that the application is a bona fide one; there is a serious issue to be determined before the commission and almost inevitably before this Court or the Federal Court in relation to that application.
The respondent to that application is some form of medical practitioner. The complaint relates to activities he is alleged to have engaged in whilst in the course of providing some form of medical or

quasi-medical service; it is not quite clear to me what the service was proposed to be.
In any event, an affidavit of a legal practitioner, engaged on behalf of the applicant, sets out in some detail the nature of the real property owned by the applicant and the disposition of certain of those real properties, in the period from January of this year until today.
The application for injunctive relief is brought pursuant to s.46P of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). That section provides in s.46P(1):
That at any time after a complaint is lodged with the commission the Federal Court or the Federal Magistrates Court may grant an interim injunction to maintain:
(a)the status quo as it existed immediately before the complaint was lodged; or
(b)the rights of any complainant, respondent, or affected person.
The section then goes on to regulate, in other ways, the grant of that relief.
It is essentially an application for injunctive relief to preserve the assets of the respondent, or such of them as might be reasonably thought to be required to be quarantined, in light of the fact that an application is afoot before the commission and that one of the remedies sought in the application, or one of the remedies capable of being granted in respect of the application, is an award of damages. In that respect it is an orthodox application for an injunction in such circumstances.
So we have the asset pool identified, or that part of it, in the form of the real property. We have movements or dispositions of some of those assets in recent times, with no obvious explanation or matter accounting for those dispositions. We have, it seems to me, against that background, reasonable apprehensions on the part of the applicant leading to taking such steps as might be required to preserve the assets until the claim can be determined, or, at the very least, to preserve them until the respondent has an opportunity to provide his explanation as to those dispositions and to provide an account of his intentions with respect to his assets, whilst the application before the Commission is unresolved.
Section 46P clearly is looking at only temporary relief. It is a matter of taking it a step at a time, but I think enough has been shown in the affidavit material for the Court to make the orders sought, albeit for a brief period, to enable the respondent to be served and to enable him to provide an account of those matters I have identified.
There will be, firstly, an order in terms of paragraphs 1(a) and (b) and paragraph 1.2 and paragraph 1.3 of the draft proposed minutes of order, which are attached to the application and which are initialled by me this day, save that paragraph 1.2 will be amended by deleting the reference to paragraph 1.2.6 and paragraph 1.3 will be amended by deleting the word "to" in the first line and substituting the word "for" and then by adding paragraph 1.3.4 to identify that property previously referred to in paragraph 1.2.6. So the order relates only to the real property that has been identified in the affidavit of the applicant's solicitor and the proceeds of sale of such property.
At this stage it seems to me that it is not a measured response to the circumstances that have been identified to make an order, particularly an order on an ex parte basis, which would have the effect of impeding the respondent's opportunity to conduct his business or to deal with his items of personalty and the like, and that is notwithstanding that I recognise the orders sought were subject to the usual modification in paragraph 2 of the draft proposed minutes of order which would have seen him be able to access his funds for his ordinary and usual living expenses. Because I have limited the order to that real property and those proceeds of real property, it seems to me that it is not necessary to make that order in paragraph 2. Paragraph 3 should be included.
There are other aspects to the application. There is an application for orders, firstly pursuant to s.61(c) of the Federal Magistrates Act 1999 (Cth), which order sought would have the effect of forbidding the publication of the names of the applicant and the respondents – the respondents being the medical practitioner concerned and a related or associated service company.
The application is brought in circumstances where I am told, and indeed I am provided with a copy of the information, that the conduct, which is the subject of the applications to the Commission, is also the subject of criminal proceedings on indictment. It being the case, given the nature of the alleged behaviour – the charges are of indecent assault – the provisions of the State Criminal Law Consolidation Act 1935 or the Evidence Act 1929 gave the effect of prohibiting the publication of any material which would serve to identify the applicant or respondent and it seems to me prudent to take that course, at least during the period of the adjournment, and we will determine on Monday whether it extends beyond that.
I think sufficient has been demonstrated in the affidavit – the nature of the proceedings, the nature of the allegations and that related matter – for the need to preserve the respondent's rights or to not render nugatory the respondent's rights under the State legislation, and it seems to me appropriate to make the order sought.
There is a related application for an order asking for the closure of the court, today. I think it is a very serious matter to change the nature of the proceedings from proceedings in open court to proceedings in camera. There are circumstances in which such an order is, in the justice of the case, or the circumstances of the parties, required. I do not find, in the affidavit material filed before me today, the identification of circumstances which would warrant such a significant step being taken and it is for that reason that I decline to make that order sought.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: K. Clarke

Date: