Australian Securities Commission v Fuller, Ross Matthew

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG3004 of 1998

BETWEEN:	AUSTRALIAN SECURITIES COMMISSION APPLICANT
AND:	ROSS MATTHEW FULLER RESPONDENT

JUDGE(S):	DRUMMOND J
DATE:	19 FEBRUARY 1998
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

This is an application by the Australian Securities Commission for a warrant under section 530C, of the Corporations law, directed to a Mr Fuller. Mr Fuller on 3 February became the sole director and the secretary of Australian Slip Control Pty Limited, 3 February 1997.

The company went into liquidation on 17 June of that year.  The company traded for a relatively short time, being registered only in April 1995.  Mr Pascoe, an accountant employed in the office of the liquidator, Mr Anthony Milton Sims, says that his investigations show that in carrying on its franchise business, the company received about half a million dollars from various franchisees before trading closed, a number of whom have complained to the liquidator about their treatment by the company.

There is material before me now which, if I could place reliance upon it, would justify the issue of the warrant sought.   However, given the gravity of the intrusion that a warrant makes lawful, I am not prepared to issue the warrant on the material presently before me, because I do not have the confidence in its reliability which a court, in my opinion, should have before taking the draconic step sought.  By way of example, Mr Pascoe has sworn an affidavit in paragraph 7 and 8 of which he says that:

The only records I have received to date from Mr Ross Fuller in relation to the company are [certain limited specified bank records].

It is apparent that that is inaccurate and quite misleading, because Mr Pascoe in his oral evidence, said that he had received other documents in relation to the company from Mr Fuller, namely a bundle of paid and unpaid creditor invoices and that although he has not taken the trouble to confirm this, he may well have received from Mr Fuller a list of the company's creditors, albeit later than he originally anticipated when he discussed delivery by Mr Fuller to the liquidator of the company's records, in a telephone conversation he had on the day of the liquidation.

What Mr Pascoe says in paragraphs 7 and 8 of his affidavit, is inaccurate in a further respect, he did not in truth receive the bank records listed in paragraph 8 of his affidavit from Mr Ross Fuller as he there swears was the case.  He received them from a Mr Pearce, the liquidator's Brisbane agent.  Mr Pascoe says he believes Mr Pearce received the documents from a Mr Hannon, who Mr Pascoe further says he believes is or was a franchisee of the company.  And Mr Pascoe says he believes that Mr Hannon was asked by Mr Fuller, in circumstances not disclosed by anything put before me, to hand those documents over to the liquidator.

Further, the evidence that Mr Pascoe relies upon…