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DPP v Loo & Ors

DPP v Loo & Ors

Case [2007] VSC 343 14 September 2007

Constitutional Validity

Inconsistency between State and Commonwealth laws

Statutory Interpretation

Constitutional Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1436 of 1999

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA	Applicant
v
TAT SANG LOO AND ORS	Respondents

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 MAY 2007
DATE OF JUDGMENT:	14 SEPTEMBER 2007
CASE MAY BE CITED AS:	DPP v LOO & ORS
MEDIUM NEUTRAL CITATION:	[2007] VSC 343

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Constitutional law – Inconsistency between State and Commonwealth laws – Constitution (Cth) s.109 – Whether the making of a restraining order under s.18 of the Confiscation Act 1997 (Vic) is directly inconsistent with provisions of Chapter 5 of the Corporations Act 2001 (Cth) - Corporations Act provisions do not place the property of a company in liquidation beyond the scope of a potential claim by a third party - Corporations Act ss. 482, 500(2) considered – making of a restraining order in the circumstances does not give rise to the assertion of rights inconsistent with the scheme of the Corporations Act - Tat Sang Loo v DPP (2005) 12 VR 665 distinguished

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N. O’Bryan with Mr C. Juebner	Angela Cannon, Solicitor for Public Prosecutions
For the Secondnamed Respondent	Dr J. Bleechmore	Brand Partners

HIS HONOUR:

Introduction

In this matter Bow Ye Investments Pty Ltd (In Liquidation) (“Bow Ye”), seeks to set aside restraining orders made pursuant to s.18 of the Confiscation Act 1997 (Vic). Such orders relate primarily to dividends the liquidator has determined to be due to certain creditors. The effect of payment of the sums in issue will be to remove the assets from the jurisdiction, in circumstances where it is likely they will be difficult to follow.

The respondents to the restraining order are Tat Sang Loo, whom the plaintiff (“DPP”) contends is beneficially entitled to and/or controls such dividends and any surplus on the liquidation, Bow Ye, and the persons to whom the dividends in issue may otherwise be payable.

The basis of the application is a constitutional one founded on the proposition that the operation of the relevant provisions of the Confiscation Act “alters, impairs and detracts from the operation of the Corporations Act 2000 (Cth) and brings the former into direct inconsistency with the latter.”[1]
[1]Notice of a Constitutional Matter was given on 27 February 2007.

Background

The background to this matter is summarised by Warren CJ in a ruling given on 16 June 2006,[2] with respect to an application pursuant to s.98 of the Confiscation Act for the examination of the liquidator of Bow Ye.
[2]DPP v McDermott [2006] (Unreported, Warren CJ, 16 June 2006).

On 17 March 1999, in the Magistrates’ Court of Victoria at Dandenong, Tat Sang Loo pleaded guilty to 14 charges relating to his illegal operation of an abalone poaching and processing network in contravention of the Fisheries Act 1995. All but one of the offences to which Loo pleaded guilty were forfeiture offences for the purposes of the Confiscation Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Loo & Ors

Details

AGLC: Director of Public Prosecutions v Loo [2007] VSC 343
Case: [2007] VSC 343
Decision Date: 14 SEPTEMBER 2007

CaseChat Overview and Summary

The defendants, Loo and others, were charged under the Confiscation Act 1997 (Vic) with money laundering offences. The Director of Public Prosecutions (DPP) sought a restraining order against the defendants, which was challenged on the basis that it was inconsistent with the Corporations Act 2001 (Cth). The legal question for the court was whether the making of a restraining order under section 18 of the Confiscation Act was directly inconsistent with provisions of Chapter 5 of the Corporations Act. The court needed to determine if the Corporations Act provisions effectively removed the property of a company in liquidation from the scope of potential claims by third parties.

The court examined the provisions of the Corporations Act, including sections 482 and 500(2), which do not place the property of a company in liquidation beyond the reach of a potential claim by a third party. The court noted that the making of a restraining order in these circumstances did not assert rights inconsistent with the scheme of the Corporations Act. The court distinguished Tat Sang Loo v DPP (2005) 12 VR 665, where the issue was the validity of a confiscation order rather than the making of a restraining order. The court held that the making of a restraining order did not give rise to the assertion of rights inconsistent with the scheme of the Corporations Act.

The court ruled that the making of a restraining order under section 18 of the Confiscation Act was not directly inconsistent with the provisions of Chapter 5 of the Corporations Act. Consequently, the court allowed the application for a restraining order, and the final orders were made in favour of the DPP.

Orders