Chong v Schultz

[2000] FCA 582

FEDERAL COURT OF AUSTRALIA

Chong v Schultz [2000] FCA 582

CRIMINAL LAW – search warrants – judicial review of issue – construction – whether offence disclosed – warrant stating person “avoided the payment of income tax by directing income tax [sic] into” certain accounts thereby defrauding the Commonwealth – warrant further stating person gave false information to trustee in bankruptcy contrary to s 276A of the Bankruptcy Act – such offence created by s 267A

Crimes Act 1914 (Cth) s 3E(5)(a)

Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 31 FCR 523 applied
Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 94 177 at 183 applied
Parker v Churchill (1986) 9 FCR 334 at 340 applied
West v Lawday (1865) 11 HLC 375 at 384 applied

JOHN CHONG & ORS V GRANT DAMIEN SCHULTZ & ORS
NO. V 197 OF 2000

HEEREY J
1 MAY 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 197 OF 2000

BETWEEN:	JOHN CHONG JOE CHONG DR JESSICA HO Applicants
AND:	GRANT DAMIEN SCHULTZ  PAUL ANDREW ERDMANN  MELISSA TERESA LESTER  GREGORY McLEOD  DAMIEN MICHAEL RYAN Respondents
JUDGE:	HEEREY J
DATE OF ORDER:	1 MAY 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicants pay the respondents’ costs fixed at  $5,000.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 197 OF 2000

BETWEEN:	JOHN CHONG JOE CHONG DR. JESSICA HO Applicants
AND:	GRANT DAMIEN SCHULTZ  PAUL ANDREW ERDMANN  MELISSA TERESA LESTER  GREGORY McLEOD  DAMIEN MICHAEL RYAN Respondents

JUDGE:	HEEREY J
DATE:	1 MAY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicants attack the validity of search warrants which were issued by a magistrate on 5 April 2000 on the application of Paul Andrew Erdmann, an Australian Federal Police officer and the second respondent.  After there had been part execution of the warrants at various premises I made an ex parte order on 6 April restraining the respondents from taking any further steps in execution of the warrants or reading, copying, disposing of, destroying or otherwise dealing with documents or other materials already taken in execution of the warrants.

2. An initiating application was filed the next day.  The applicants seek declarations that the search warrants were invalid, a permanent injunction in terms of the interim injunction already granted, and an injunction restraining the respondents or any other Federal Police officer or Australian Taxation officer from using any of the information contained in the documents or materials taken in the process of executing the warrants.  Also a return of such documents or materials is sought. 

3. The matter came on for hearing before me today and was by consent treated as a final hearing. 

4. One of the grounds relied upon by the applicants was that the warrants had been issued for a collateral purpose, namely to assist the Australian Taxation Office in the recovery of…