Commissioner of the Australian Federal Police v Hull
[2013] NSWSC 1350
•12 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Commissioner of the Australian Federal Police v Hull [2013] NSWSC 1350 Hearing dates: 12 September 2013 Decision date: 12 September 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Examination order made.
Catchwords: PROCEEDS OF CRIME - no question of principle. Legislation Cited: - Corporations Act 2001 (Cth)
- Proceeds of Crime Act 2002 (Cth)Category: Principal judgment Parties: The Commissioner of the Australian Federal Police (Plaintiff)
Michael William Hull (Defendant)Representation: Counsel:
Ms A. Brown (Sol) (Plaintiff)
J. Wheeldon (Sol) (Defendant)
Solicitors:
Australian Federal Police (Plaintiff)
Wheeldon Lawyers (Defendant)
File Number(s): 2013/190226
EX TEMPORE Judgment
In these proceedings the Commissioner has proffered various orders contained in a document "Short Minutes of Order" as being initialled by me. The bulk of the orders affect the defendant, Michael William Hull. A solicitor has appeared on his behalf and has signed the orders. The orders also affect Mr Hull's spouse, Catriona Joanne Hull, and she has signed the orders in their own right. On that basis and subject to the provision of an undertaking as to damages by the Commissioner which was proffered, I will make those orders.
Quite properly the solicitor for the Commissioner has pointed out that one part of the orders also affects third persons in that they seek to examine Darren Wayne Thompson and Natasha Thompson about the affairs of the defendants. Those persons have not consented to the orders. As far as I am aware, they have not been given notice that those orders would be sought. I should add that that is not uncommon in applications of this kind.
The basis for the order sought against them is s 180 of the Proceeds of Crime Act 2002 (Cth) (the "Act") which provides:
"Examination orders relating to restraining orders
(1) If a restraining order is in force, the court that made the restraining order, or any other court that could have made the restraining order, may make an order (an examination order) for the examination of any person, including:
(a) a person whose property is, or a person who has or claims an interest in property that is, the subject of the restraining order; or
(b) a person who is a suspect in relation to the restraining order; or
(c) the spouse or de facto partner of a person referred to in paragraph (a) or (b);
about the affairs of a person referred to in paragraph (a), (b) or (c).
(2) The examination order ceases to have effect if the restraining order to which it relates ceases to have effect."
The definition of "affairs" in s 180 is as follows:
"affairs of a person includes, but is not limited to:
(a) the nature and location of property of the person or property in which the person has an interest; and
(b) any activities of the person that are, or may be, relevant to whether or not the person has engaged in unlawful activity of a kind relevant to the making of an order under this Act.
In support of the application for orders requiring the attendance of Mr and Mrs Thompson for examination, the Commissioner has read an affidavit of Morgen Verge Blunden sworn 21 June 2013. By way of very brief summary, that affidavit reveals a reasonable basis for suspecting that at various times, Mr Thompson may have passed on inside information to Mr Hull which may have then led Mr Hull to engage in share trading. In relation to one particular transaction, there is a reasonable basis for suspecting that the source of Mr Thompson obtaining the inside information was Mrs Thompson.
The submission of the Commissioner is that the order under s 180(1) in relation to Mr Thompson is warranted because he is a person who could reasonably be expected to have information about the "affairs" of Mr Hull. Based on what is stated in Mr Blunden's affidavit, I accept that contention. Similarly, the same submission is put in relation to Mrs Thompson. Given the breadth of the definition of "affairs" and that an element of unlawful activity in this context is that the relevant information was truly inside information according to the appropriate definition in the Corporations Act 2001 (Cth), I think there is a reasonable basis for believing that Mrs Thompson has some information about the affairs of Mr Hull.
Accordingly I will make an order for the examination of both of them. Two matters should be noted. First, the form of orders at present has a provision for liberty to apply. I will clarify that to make it liberty to apply on 24 hours' notice. Secondly, so far as the examinations of Mr and Mrs Thompson are concerned, I will make it a condition that such examination is not to occur within two weeks of today so that they will have the opportunity, if they see fit, to apply to set aside the order.
Accordingly I will make orders 1 to 5, 6A, 7 and 8 in the Short Minutes of Order. I will make order 9 but with the addition of the words "on 24 hours' notice". I will make a further order that, subject to such examination not taking place prior to 26 September 2013, pursuant to s 180 of the Act the following persons to be examined about the affairs of the defendant are Darren Wayne Thompson and Natasha Thompson.
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Decision last updated: 26 September 2013
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