Australian Securities Commission v Heilbronn, G.R

[1995] FCA 399

CATCHWORDS

CORPORATIONS LAW - Warrant issued under s.486B of the Corporations Law - no power to hold in custody once respondent brought before the court - Service and Execution of Process Act 1992 (Cth) not applicable to warrant issued under Corporations Law.

PRACTICE AND PROCEDURE - Costs - application properly brought - ASC to have proper professional costs of application - not proper to bring respondent in custody from Sydney - costs of attempted or purported exercise of warrant excluded.

Corporations Law s.486B

Service and Execution of Process Act 1992 (Cth)

Australian Securities Commission v. Greig Ronald Heilbronn

No. QG3002 of 1995

Cooper J., Brisbane, 30 May, 1995

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

No. QG3002 of 1995

IN THE MATTER OF VESOFE PTY. LTD. (IN LIQUIDATION) ACN 003 998 963 AND GREIG RONALD HEILBRONN

AUSTRALIAN SECURITIES COMMISSION

Applicant

GREIG RONALD HEILBRONN

First Respondent

JUDGE MAKING ORDER:Cooper J.

WHERE MADE:   Brisbane

DATE OF ORDER:               30 May, 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

(1)                    The District Registrar issue a summons in the form of the draft summons marked "B" for Identification and lodged with the papers to be returnable at a time and place to be fixed by the District Registrar.

(2)                    The respondent pay the applicant's costs of the application including reserved costs and the costs of today's appearance to be taxed, if not agreed, but excluding the costs of the Australian Federal Police and the costs of the execution or purported execution of the warrant issued 1 February, 1995 by the bringing of the respondent in custody from Sydney to Brisbane on 27 May, 1995.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

No. QG3002 of 1995

IN THE MATTER OF VESOFE PTY. LTD. (IN LIQUIDATION) ACN 003 998 963 AND GREIG RONALD HEILBRONN

AUSTRALIAN SECURITIES COMMISSION

Applicant

GREIG RONALD HEILBRONN

First Respondent

CORAM:   Cooper J.

PLACE:   Brisbane

DATE:   30 May, 1995

REASONS FOR JUDGMENT

On 1 February, 1995 a warrant issued under my hand pursuant to section 486B of the Corporations Law.  The warrant was directed to the Sheriff of the court in the following terms :-

"Arrest GREIG RONALD HEILBRONN and bring him before the Court to submit to the order of the Court and seize any property or books of Vesofe Pty Ltd (in liquidation) A.C.N. 003 998 963 in the possession of Greig Ronald Heilbronn and deliver the same into the custody of James Grayson a legal officer of the Australian Securities Commission at Brisbane, Queensland."

On 2 February, 1995 a Deputy Sheriff of this court, pursuant to section 18P(4) of the Federal Court of Australia Act 1976 authorised all members of the Australian Federal Police ("the AFP") to assist him in the exercise of his powers and performance and functions in executing a warrant for the arrest of the respondent dated 1 February, 1995.

The authority of the AFP in this matter was therefore pursuant to an authority under the Federal Court of Australia Act to act in assistance of an officer of the court.  The AFP were not at any time authorised to act in this matter for or on behalf of the Australian Securities Commission ("the ASC"). 

The respondent was intercepted at Sydney International Airport on 23 April, 1995 and charged pursuant to the Crimes Act (Cth) and Crimes Act (NSW) with offences relating to a passport in the name of Mr. Robert Meek found in the respondent's possession. The respondent was not brought before the Federal Court in Sydney, notwithstanding that arrangements had been made on that occasion to have a judge of this court available in Sydney so that the respondent could be produced to the court according to the terms of the warrant. On 24 May, 1995 Mr. B. Cleary, a Magistrate in the Local Central Court in Sydney, sentenced the respondent to five (5) weeks imprisonment in relation to the passport offences.

Further arrangements were made to have the respondent produced to a judge of this court in Sydney on a subsequent occasion.  In circumstances which I do not understand it was thought appropriate or desirable to ignore these arrangements and to not produce the respondent to the court in Sydney but to return him to Brisbane.  Accordingly the Magistrate, Mr. Cleary, was persuaded that my warrant was a warrant in respect of which he had jurisdiction to make orders under the Service and Execution of Process Act 1992 (Cth). The warrant was issued by a judge of the Federal Court pursuant to section 486B of the Corporations Law, a Commonwealth law. In my view, the Service and Execution of Process Act 1992 (Cth) has no application to a warrant issued in these circumstances. This view is supported by the definition of "warrant" in the Act.

Upon his discharge from prison in Sydney on 27 May, 1995 the respondent was taken and brought in custody from Sydney, not by virtue of my warrant, but by virtue of the order of the Magistrate in New South Wales issued under the Service and Execution of Process Act 1992 (Cth). The respondent was produced before me on Saturday 27 May, 1995. I had indicated that I would make myself available for this purpose. Upon his being produced to the court there is in my view no power under section 486B of the Corporations Law to further detain the respondent in custody.

The applicant and the respondent both seek an order for costs.

The respondent submitted that the application to the court insofar as it sought the issue of a summons for his public examination was unnecessary and that it could have been obtained by application to the District Registrar.  Having consented to it, the respondent sought costs of his representation and appearance before the court.  The respondent has shown no basis for an award of costs in his favour on the application.

It is clear on the material that the respondent was aware of the issue of the warrant and could have avoided any difficulty in the matter by surrendering himself to an officer of the court on the day of the issue of the warrant or immediately thereafter.  However, for whatever reason, he chose not to do so and on the material before me chose to attempt to flee the jurisdiction.

The applicant seeks the costs of and incidental to the application and the actual costs and expenses of it and the AFP incurred in the officers going to Sydney, taking the respondent into custody and bringing him by air from Sydney to Brisbane.

I am satisfied that at the time the application was filed on 30 January, 1995 it was reasonable to come to the court to obtain a warrant for the arrest of the respondent and for his production to the court. I am also satisfied that at that time it was reasonable in the circumstances to include on the application an application for the issue of a summons under section 596A of the Corporations Law, notwithstanding that an alternative procedure by way of application to the Registrar was available.

In the circumstances it seems reasonable that the ASC have its proper professional costs in relation to the application. 

However, I am not satisfied that the ASC has acted properly in having the respondent brought in custody from Sydney to appear before me. It is clear to me that there was no power in the AFP to act in this way. The warrant issued by me required that the respondent be arrested and brought before the court, not that he be held in custody and returned before the judge or court from which the warrant issued.

Accordingly, I propose to order the costs of the application but to exclude any of the costs of the attempted or purported exercise of the warrant or the costs of bringing the respondent to Brisbane.  What the proper costs - that is the professional costs and outlays - are in relation to the application can be determined by the taxing officer if they are not agreed. 

THE COURT ORDERS THAT:

(1)                    The District Registrar issue a summons in the form of the draft summons marked "B" for Identification and lodged with the papers to be returnable at a time and place to be fixed by the District Registrar.

(2)                    The respondent pay the applicant's costs of the application including reserved costs and the costs of today's appearance to be taxed, if not agreed, but excluding the costs of the Australian Federal Police and the costs of the execution or purported execution of the warrant issued 1 February, 1995 by the bringing of the respondent in custody from Sydney to Brisbane on 27 May, 1995.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper.

Date:  30 May, 1995

Associate

Counsel for the Applicant:   Mr. R. Ladlay

Instructed by:   Mr. J. Grayson

(Australian Securities Commission)

Solicitor for the Respondent:   Mr. P.A. Coombe of Gregory & Coombe

Date of Hearing:   30 May, 1995

Place of Hearing:   Brisbane

Date of Judgment:   30 May, 1995