Australian Securities Commission v Kutzner

FEDERAL COURT OF AUSTRALIA

CORPORATIONS - investigation by Australian Securities Commission - request for reasonable assistance - person  required to execute power of attorney authorising search of company records in Mauritius - whether reasonable grounds for suspicion or belief that person can give information - whether reasonable assistance extends to physical act - whether privilege against self-incrimination applies - whether assistance reasonable if likely to prove futile

Australian Securities Commission Law  ss 19(1), 68, 70

George v Rockett (1990) 170 CLR 104 applied
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 cited
Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 applied
Australian Securities Commission v Ampolex Limited (1995) 14 ACLC 80 cited

AUSTRALIAN SECURITIES COMMISSION v BERND KUTZNER
NO. TG 3016 OF 1997

JUDGE:        HEEREY J
DATE :          18 DECEMBER 1997         
PLACE:        MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIAN DISTRICT REGISTRY	TG 3016   of   1997

BETWEEN:	AUSTRALIAN SECURITIES COMMISSION APPLICANT
AND:	BERND KUTZNER RESPONDENT
JUDGE:		HEEREY J
DATE OF ORDER:		18 DECEMBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

The application be dismissed with costs, included reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIAN DISTRICT REGISTRY	TG 3016  of 1997

BETWEEN:	AUSTRALIAN SECURITIES COMMISSION APPLICANT
AND:	BERND KUTZNER RESPONDENT

JUDGE:	HEEREY J
DATE:	18 DECEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The applicant Australian Securities Commission (ASC) seeks an order under s 70(3) of the Australian Securities Commission Law (the ASC Law) that the respondent Bernd Kutzner comply with a requirement of the ASC made under Pt 3. The requirement in question is that Mr Kutzner execute a power of attorney which would give the attorney power to obtain details as to the shareholding of a Mauritius company called Indian Ocean Technologies Ltd (IOT).  The ASC suspects that Mr Kutzner is a shareholder in IOT or otherwise holds a beneficial interest in that company.

The Beku Investigation
Mr Kutzner was at all material times a director of and shareholder in Beku Environmental Products Limited (Beku) which is a producer of fish oil and associated products, carrying on business at Goodwood in Tasmania. On 1 April 1996 the ASC made a decision under s 13(1) of the ASC Law to commence an investigation into the affairs of Beku. The contraventions which the ASC had reason to suspect may have been committed involved contraventions of s 592(6)(a) of the Corporations Law (being knowingly concerned in an act done by a company with intent to defraud creditors), ss 232(2) and 1317FA (failing to act honestly as a director) and s 1307(1) (falsifying the books of Beku).

The alleged contraventions arise out of dealings between Mr Kutzner and a Dr Charles Dragar.  Dr Dragar provided certain technology to Beku.  The suspicion is that IOT is a front for Mr Kutzner and that he set up a sham transaction whereby IOT purported to supply the same or…