Dillon, D.R. v Chin, L.L

[1987] FCA 365

IN THE FEDERAL COURT OF AUSTRALIA	)
9UEENSLAND DISTRICT REGISTRY	) QLD G57 to G61 of 1987
GENERAL DIVISION	)

BETWEEN: DANELLE DOBINSON DILLON

Appllcant

AND: LUKE LAWRENCE CHIN

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
ORDER:	DATE OF	19 JUNE 1987
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

The appllcatlon for an order that Luke Lawrence C h m

surrender hls passport to an authorized offlcer of the

Trade Practlces Commlsslon be dlsmlssed.

m:

Settlement and entry of orders 1 s dealt wlth In

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) QLD G57 to G61 of 1987
GENERAL DIVISION	)

BFIWEEN: DANELLE DOBINSON DILLON

Applicant

AND: LUKE LAWRENCE CHIN

Respondent

PINCUS J. 19 June 1987

EX TEMPORE REASONS FOR JUDGMENT

Thls 1 s an appllcatlon made In each of flve matters for

an order that the respondent, Luke Lawrence Chln, surrender hls

passport o an authorlzed offlcer of the Trade Practlces

Commisslon upon hls arrlval at Brlsbane Internatlonal Alrport.

The prlncipal matters are prosecutlons under the Trade Practlces

m, the flrst of whlch is a sufflclent sample.

It 1 s alleged in a summons flled on 16 Aprli 1987 that

the respondent was gullty of an offence under 5.79 of the Trade

Practices Act 1974, In that he was knowingly concerned in a

contravention of 5.53(c) of the Act by Kingly Commodlties

(Qld.) Pty. Ltd., whereby Klngly, In trade or commerce In

connection with the promotion of the supply of services,

represented that services had certain benefits which they did not

have. Particulars are given, the essence of which is that the

L .

respondent offered to manage the investment by a named person of

money in commodity futures by making misleadlng statements

directed, speaklng generally, to the question f the rlsk of loss,

and to the part Kingly Commodlties (Qld.) Pty. Ltd. would take	In
the proposed transactions.

An affidavit has been flled by Mr. T.J. Guthrle,

assistant director, Consumer Protection, of the Trade Practlces

Commlssion. He mentions the commencement of the proceedings, and

says that the respondent was n account executive In the company I

have mentloned - Xlnqly Commodlties (Qld.) Pty. Ltd.

The affidavit goes on to say that the respondent left

Australla In early February 1987 for the Philllplnes, where h has

since reslded, that lnformatlon 1s available that he knows of the

lnformatlon and summonses, that the Australlan Federal Pollce hav

advised Mr. Guthrie that the respondent wlll be declared "persona

non grata" by the Phlllppine authorltles because of the

proceedlnqs In thls Court, and that they wlll be attemptlnq to put

hlm on a fllght to Brlsbane to arrlve tomorrow mornlng.

Mr. Guthrie goes on to say that he thinks that the

respondent wlll not stay In Australia and that Klnqly Commodltles,

the company I have mentioned, has branches at var1ous places in

Asia. There is no evidence before me as to whether the case

brought against the respondent has any substance, but I am content

to proceed on the assumptlon that it does.

3

The most relevant provision of the Trade Practices Act,

5.79, makes it an offence, putting it briefly, to contravene or

take part in the contraventlon of certain provislons of Part V of

the Act, including the one relevant here - 5.52 paragraph (c).

The offence is punlshable on convlctlon by a fine and under s.79A there is provision for working out the term of imprisonment for non-payment of the flne.

It may be that, If the proceedlngs are ultlmately

successful, the respondent will be fined or not pay the flne and

wlll be Imprisoned. At present, however, he 1 s under no legal

obllgatlon to remaln In thls country and would be under no such

obligation were he served wlth the proceedlngs; that 15, ~t 1 s not

suggested that there is any lntentlon of arrestlng the respondent,

assuming that there was a rlght to do s o .

The state Into which It 1 s lntended to brlng hlm 1 s one

of what mlght be called loosely "movement restrlctlon" by

abstraction of hls passport. No authorlty has been clted, nor has

any reference been made to any provlsion of a statute, which mlght

authorlse the maklng of this sort	of order. It seems to me that
it might possibly be made under	5 . 2 3 of the Federal Court of
Australia Act 1976, whlch says:

"The Court has power, in relation to matters in

whlch it has jurisdictlon, to make orders of such

kinds, including interlocutory orders, and to

issue, o r direct the Issue of, writs of such kinds,

as the Court thinks approprlate."

4 .

Assuming in favour of the applicant that there is power to requlre

the surrender of the passport, one wonders precisely what the

pomt of it is, other than, so to speak, to put pressure on the

respondent. He would still be under no obligation to take any

notice of the proceedings and the problem of extracting the amount

of a flne from him If he were convicted would still exist.

More importantly, it seems to me that one should not

routlnely, slmply because a person is prosecuted for an offence

under the Trade Practices Act, lnslst that he not leave the

country. It may be that in some cases where the facts were shown

to be that some outrageous fraud had been perpetrated or at least

a prima facie case to that effect had been adduced, such an order

could be made. But here it is not suggested there 1 s anything

special about the matter other than that	Mr.	Chln has been
prosecuted.

In these clrcumstances I do not see that there 1 s any

posslble justlflcatlon for maklng the order sought, assumlng I had

the dlscretlon to	do so,	and the appllcatlon	wlll therefore be
refused.

certlfy that thls and the 5 preceding

pages arz a true copy of the reasons for

judgment hcreln of H:s Honour

Mr Justlce Plncus

Dated I q &.X 17~7