Loo v Director of Public Prosecutions
[2005] VSCA 161
•29 June 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 1436 of 1999
| TAT SANG LOO | |
| Appellant | |
| v. | |
| DIRECTOR OF PUBLIC PROSECUTIONS (VICTORIA) | Respondent |
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JUDGES: | WINNEKE, P., CHARLES and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 15 and 16 March 2005 | |
DATE OF JUDGMENT: | 29 June 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 161 | |
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Constitutional law – Inconsistency between State and Commonwealth laws – S.109 Constitution (Cth.) – Whether ss.70 and 72 of the Confiscation Act 1997 (Vic.) can operate consistently with the provisions of Ch.5 of Corporations Act 2001 (Cth.).
Corporations – Part 1.1A of Corporations Act 2001 (Cth.) – Whether provisions of s.5G(3) of Corporations Act apply to prevent “direct inconsistency” between ss.70 and 72 Confiscation Act 1997 (Vic.) and “winding up” provisions of Corporations Act 2001 (Cth.) –Whether State laws can operate “concurrently with Commonwealth law”.
Proceeds of Crime – ss.70 and 72 of Confiscation Act 1997 (Vic.) – Providing that property in “effective control” of a person available to satisfy a pecuniary penalty order made by a court against that person in respect of “forfeiture offences”, and enforceable “as if the property were property of [that person]” – Meaning of “effective control”.
Corporations Act 2001 (Cth.) – ss.5E, 5F and 5G in Part 1.1A considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant For the Respondent | Dr. J.F. Bleechmore Ms. P.M. Tate, S.C., Solicitor-General for the State of Victoria and | Ellinghaus & Lindner Solicitor for Public Prosecutions |
WINNEKE, P. :
Overview of the legislation governing the Issues in dispute before the trial judge
In recent years, Commonwealth and State parliaments have legislated to deprive those who commit offences against their laws of the profits generated by their criminal exploits. Such legislation is based on the general principle that crime “should not pay”; and that knowledge by criminals that the proceeds of their crimes may be confiscated by the State operates as a general deterrent to crime. In this State, the Confiscation Act 1997 enables the Director of Public Prosecutions to take action before the courts to “freeze” and recover assets alleged to be “proceeds of crime”. Not infrequently, because corporations have been established to conceal such proceeds, disputes will arise as to priorities of entitlement to the assets of a corporation, where it is alleged that those assets represent proceeds of crime.
The point at issue in the proceeding from which the appeal emanates was whether the relevant provisions (ss.70, 72) of the Confiscation Act (Vic.) 1997 (“the Act”) could operate consistently with the provisions of Chapter 5 of the Corporations Act 2001 (Cth.) (the “winding up provisions”); or whether the State provisions could not so operate with the Commonwealth provisions and thus, and to that extent, are invalid as a consequence of the impact of s.109 of the Constitution (Cth.). The circumstances which gave rise to this issue can be briefly described.
At material times – particularly 1997 and 1998 – the appellant Loo (“Loo” or “the appellant”) was a trader in illegally acquired abalone. In February 1997, Loo procured the incorporation of a company Bow Ye Investments Pty. Ltd. (“Bow Ye”) of which he was, between the date of its incorporation and its winding-up, the sole director, shareholder and secretary. Also, from the time of its incorporation, Bow Ye was the trustee of the Loo Family Trust, the trust having been established by deed dated 29 January 1997. Loo was the guardian and appointor named in the trust deed. Bow Ye was the registered proprietor of two properties which were at the centre of the dispute in the proceedings below. The first such property was 26 Calambeena Avenue, Oakleigh[1]; and the second was at 181 Exhibition Street, Melbourne[2]. The property at Calambeena Avenue had been acquired by Loo and his wife in February 1990, and appears to have been their matrimonial home, although the judge found that it had also been used by Loo in 1997/8 for the processing of abalone. In any event, that property was sold by Loo and his wife to Bow Ye in 1997 for the sum of $249,000; and in May 1997, Bow Ye acquired the property at 181 Exhibition Street for $275,000. It would appear, and the primary judge so found, that in March 1997 Loo had set up three bank accounts in names of persons he knew well or to whom he was related. Loo operated those accounts under notice of authority; and from March 1997 until June 1998, large sums of money passed through each account. The judge concluded, from the evidence before him, that the deposits into the accounts represented likely proceeds of sale of abalone. The judge also concluded, on the material before him, that funds on a large scale were available to Loo throughout 1997; a period during which “on the face of it, substantial unsecured loans were made to Bow Ye by off-shore individuals and a company with whom and which respectively [Loo] had links”. His Honour identified three, or possibly four, unsecured creditors from Malaysia and Singapore who, at the time when Bow Ye went into liquidation (deemed to have commenced on 14 September 2000) claimed to be owed somewhere in the vicinity of $350,000. These creditors did not appear in the proceedings before the judge, despite being given notice in accordance with s.70 of the Act. The judge described the debts which they claimed as “dubious”. The major assets of Bow Ye at the commencement of liquidation were the two properties which I have described. The value ascribed to them was approximately $500,000.
[1]C/T Vol. 4789, Fol. 683.
[2]C/T Vol. 10292, Fol. 632; Vol. 10292, Fol. 164.
The Director of Public Prosecutions of Victoria (“D.P.P.” or “the respondent”), having earlier sought and obtained a “restraining order” under Part 2 of the Act, later applied for a “pecuniary penalty order” (“P.P.O.”) against Loo in the sum of $978,275 following Loo’s conviction for various offences against the Fisheries legislation in this State. The D.P.P. had, accordingly, brought these proceedings against Loo and Bow Ye seeking a declaration, pursuant to s.70(1) of the Confiscation Act, that the aforesaid properties (over which the “restraining order” had previously been made) were available to satisfy the P.P.O. on the basis that those properties had been in the “effective control” of Loo at the date when the restraining order had been made. Before the trial judge, it was not in dispute between the D.P.P., on the one hand, and Loo and the liquidator of Bow Ye, on the other, that – at the relevant time – the properties had been “in the effective control” of Loo. Because sub-s. (2) of s.72 of the Confiscation Act (Vic.) provides that, in the event that the court makes a declaration under s.70(1) of the Act, there will arise “a charge” over all the property to which the declaration applies so as to secure payment of the P.P.O. for the benefit of the State, the issue arose before his Honour whether these provisions of the Act could operate consistently with the “winding up” provisions of the Corporations Act 2001 (Cth.). This issue brought into focus, in particular, the proper construction of Part 1.1A of the Corporations Act.
Part 1.1A of the Corporations Act (and specifically ss.5E, 5F and 5G) is the end product of co-operative measures, taken over many years, between the Commonwealth and State and Territory legislatures to prevent provisions of (inter alia) State legislation being rendered invalid as a consequence of inconsistent operation with the Corporations legislation of the Commonwealth[3]. Thus when, in 1990, the States agreed to adopt and apply the Corporations Act 1989 (Cth.) as their own Corporations Law (the “National Scheme legislation”), the authors of the scheme attempted to reduce the risk that a State would inadvertently pass a law implicitly repealing a provision of the Corporations law, by introducing a rule of statutory interpretation in the State’s own applicable legislation. In Victoria, that “rule” was to be found in s.5 of the Corporations (Victoria) Act 1990 which provided, so far as relevant:
“(1)An Act enacted … after the commencement of this section is not to be interpreted as amending or repealing, or otherwise altering the effect or operation of this Act or the applicable provisions of Victoria[4].
(2)Sub-section (1) does not affect the interpretation of an Act … so far as that Act provides expressly for that Act … to have effect despite a specified provision, or despite any provision, of this Act or the applicable provisions of Victoria …[5].
[3]In the State of Victoria & Ors. v. The Commonwealth of Australia & Ors. (“the Kakariti”) (1937) 58 C.L.R. 618, Dixon, J. (at 630) formulated the test of inconsistency under s.109 of the Constitution (Cth.) as follows:
“When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid. Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so is inconsistent.”
[4]“Applicable provisions” was defined as “including a provision of the Corporations Law”.
[5]Following the introduction of the Corporations Law, the Victorian legislature has made express provision over-riding the Corporations Law in accordance with s.5; e.g. Snowy Hydro Corporatisation Act 1997 (Vic.) s.21. See also, generally, Ford’s Principles of Corporations Law, Volume 1, Butterworths Australia, 2000, at 3205 [3.101].
The Corporations Act 2001 (Cth.) superseded the national scheme legislation after the High Court had identified significant statutory and constitutional flaws in the scheme[6]. As was noted by the authors of Ford’s Principles of Corporations Law[7]:
[6]Cf. Re Wakim; ex parte McNally (1999) 198 C.L.R. 511; R. v. Hughes (2000) 202 C.L.R. 535; see also Govey & Manson : Measures to Address Wakim and Hughes : How the Reference Powers will Work (Public Law Review, 2001, Volume 12, pp.254 ff).
[7]Supra at 3206.
“Part 1.1A of the Corporations Act deals with the interaction between the Corporations legislation and state and territory laws … Part 1.1A appears to be designed to preserve, perhaps only approximately, the status quo under the previous national scheme legislation; that is … to preserve existing state legislation which was expressed to prevail over the Corporations Law, and to permit State legislatures to continue to legislate in such manner. It does so by:
·Permitting the concurrent operation of state … laws where they are capable of operating concurrently (s.5E);
·Excluding from the application of the Corporations legislation matters declared by state … law to be excluded matters (s.5F);
·Avoiding direct inconsistency between the Corporations legislation and state … laws by providing, if specified conditions are satisfied, that the Corporations legislation yields to the state … law (s.5G).”
Generally speaking, these provisions endeavour to cut down the operation of s.109 of the Constitution (Cth.), in order to allow for the continued operation of (inter alia) state laws in the field now occupied by the Corporations Act. Where the Commonwealth parliament states an intention that its legislation is not intended to be an exhaustive statement of the law, the “cover the field” test is irrelevant, and the only question is whether there is any direct inconsistency between the Commonwealth and State laws[8]. [9]
[8]R. v. Credit Tribunal; ex parte General Motors Acceptance Corporation (1997) 137 C.L.R. 545; see also HIH Casualty and General Insurance Ltd. (in liq.) & Others v. Building Insurers’ Guarantee Corporation & Anor. (2003) 202 A.L.R. 610 at 642, where Barrett, J., in the Equity Division of the Supreme Court of NSW said:
“Section 5E is the leading provision in Part 1.1A of the Corporations Act. It says that the Corporations’ legislation (which, by virtue of s.5D(2), includes the Corporations Act) is not intended to exclude or limit the concurrent operation of any state… law – unless ‘there is a direct inconsistency between the Corporations legislation and that law’ as referred to in s.5E(4). The Commonwealth law thus contains its own explicit statement that it is not intended to be, according to Dixon, J’s. formulation, a ‘complete statement of the law governing a particular matter or a set of rights and duties’. On the contrary it is clear, at least so far as s.5E is concerned, that state … laws may also regulate matters, rights and duties with which the Commonwealth law is concerned, provided that they do not do so in a way which involves ‘direct inconsistency’.”
[9]It was believed by the authors of the Corporations Act that its provisions would have a firmer constitutional footing by reason of the fact that its provisions were the consequence of the referral of the appropriate power pursuant to s.51 (xxxvii) of the Constitution (Cth.). The States unanimously agreed to the reference option on 25 August 2000. However, the agreement of the States was withdrawn in November 2000 because of a concern that the Commonwealth would use the referred power to regulate industrial relations. Discussions followed and, on 21 December 2000, a meeting, convened by the Prime Minister and attended by the Premiers of N.S.W. and Victoria, the Commonwealth, N.S.W. and Victoria agreed to a package of measures refining the details of the earlier agreement so as to accommodate the concerns which had earlier arisen. The other States then agreed to refer power in the terms agreed at the 21 December meeting. As Ian Govey and Hilary Manson (in their article to which I have earlier referred – at pp.260-1) noted:
“The reference has placed the national system of corporate regulation on a new constitutional foundation and, in so doing, provides a secure basis for national economic development. It has enabled the Commonwealth parliament to enact a single Corporations Law applying in all referring States and in the Australian Capital Territory and the Northern Territory. The operation of the Corporations Law is no longer dependent on State laws.”
In the course of the proceedings in this case, it appears to have been accepted by all parties[10] that s.5G of Part 1.1A applied to the circumstances of this case, although only Loo – through his counsel – argued that the section did not “avoid the direct inconsistency” arising between the Corporations legislation and ss. 70 and 72 of the Act, which the section was designed to achieve. On this issue the D.P.P. and the liquidator of Bow Ye made common cause. Unsurprisingly, the judge regarded it as “anomalous” that this submission should be made by Loo who was no longer a director or secretary of Bow Ye, nor guardian or appointor of the Loo Family Trust.
[10]It was conceded by all counsel before the judge that the Corporations Act 2001 was the applicable Commonwealth legislation for the ”inconsistency” argument.
Summary of the Proceedings Below and the Judge’s conclusions
The D.P.P., by an application filed on 6 March 2001 against Loo and Bow Ye, sought a declaration under s.70 of the Confiscation Act 1997 (Vic.) (“the Act”) that the whole or a specified part of the properties at 26 Calambeena Avenue, Oakleigh, and at 181 Exhibition Street, Melbourne (“the properties”) is available to satisfy a pecuniary penalty order made pursuant to the Act.
Section 70 of the Act prescribes, so far as relevant:
“(1)On application by the D.P.P. … a court may, if in its opinion particular property in respect of which a restraining order has been made –
(a)was, on the date when the order was made, subject to the effective control of the defendant …
make an order declaring that the whole, or a specified part, of that property is available to satisfy a pecuniary penalty order.
(2)If a court declares that property is available to satisfy a pecuniary penalty order, the order may be enforced as if the property were the property of the defendant.
…”
Section 9 of the Act prescribes (inter alia) that, in determining whether or not property is subject to the “effective control of the defendant” regard may be had to, amongst other things, shareholdings in or directorships of a company that has a direct or indirect interest in the property; a trust that has a relationship to the property; and family or other relationships between persons having an interest in the property or in companies or trusts (of the kind to which I have referred) and other persons[11]. By s.72 (2) of the Act it is provided that if a court makes a declaration under s.70(1), “then there is created on the making of the declaration, a charge on all the property to which the declaration applies to secure the payments to the State of the pecuniary penalty”. For the sake of completeness s.72(1) provides that:
[11]“Effective control” has accordingly been interpreted as meaning “de facto control” or “control in fact” in the sense that it connotes control that is “practically effective”; or “control which enables the defendant to “treat the properties as his own” (Connell & Anor. v. Lavender (1992) 7 W.A.R. 9 at 21-3; D.P.P. v. Toro-Martinez (1993) 71 A.Crim.R. 326 at 331 per Kirby, P.; Logan Park Investments Pty. Ltd. & Ors v. D.P.P. (N.S.W.) (1994) 122 F.C.R. 1 at 3-4.)
“If –
(a) a court makes a restraining order in respect of all or some of the property of a person; and
(b) a court, whether before or after the making of a restraining order, makes a pecuniary penalty order against that person –
then there is created, on the making of the pecuniary penalty order or the restraining order, whichever is the later, a charge on all the property of that person to which the restraining order applies to secure the payment to the State of the pecuniary penalty.”
By s.16 of the Act, the court is given power to make restraining orders over the disposition of property of persons charged with, or convicted of (inter alia) “forfeiture offences”. Such an order will “freeze” the property over which it exists. The offences with which Loo was charged, and of which he was convicted, were “forfeiture offences”.
On 19 November 1998 a restraining order had been made (inter alia) in relation to the properties which, at all material times, were owned by Bow Ye. S.15(3)(a) of the Act prescribes that:
“If a court makes a restraining order in respect of property or an interest in property –
(a)the court must state in the order the purpose for which the property or interest is restrained.”
One of the purposes stated by this order was:
“to satisfy any pecuniary penalty order that may be made under Part 8 of the Confiscation Act 1997.”
Between 21 September 1998 and 12 November 1998, Loo was charged with offences under the Fisheries Act 1995 (Vic.). As I have said, all of these charges arose out of an illegal abalone processing business which he conducted in 1997 and 1998. On 17 March 1999 Loo appeared in the Dandenong Magistrates’ Court where he pleaded guilty to 14 charges; 12 charges having been withdrawn. His pleas of guilty were to charges of “being in possession of more than 10 abalone”, “consigning fish for sale without being authorized to do so”, “being in possession of more than the catch limits of abalone”, “receiving fish without being authorized to do so”, and “processing abalone for sale whilst unlicensed”. The Magistrate sentenced Loo to a term of imprisonment. An order was also made for the forfeiture of certain processing equipment and a motor vehicle. Loo appealed the sentence, which had been imposed, to the County Court. That appeal was heard by a judge of the County Court on 14 December 1999. The judge allowed the appeal, and imposed a term of imprisonment of 18 months with a non-parole period of 12 months. He also ordered him to pay a fine of $750 on the first charge.
In the meantime, by application filed on 21 April 1999, the D.P.P. had applied to a Judge of the Supreme Court for:
(a)a forfeiture order under s.32 of the Act (which permits the D.P.P. to apply to a court for a forfeiture order in respect of “tainted property”);
(b)a pecuniary penalty order in the sum of $1,405,300 pursuant to s.58 of the Act (which enables the D.P.P. to apply to the court for a pecuniary penalty order, which is defined by s.59 as an order for the payment of money to the value of benefits derived by the defendant in relation to the forfeiture offence.);
(c)a declaration, pursuant to s.70 of the Act.
In the course of the proceedings on 11 October 2000, Hedigan, J. was informed by counsel for the D.P.P. that the sum claimed as the basis for the pecuniary penalty order would be $978,275; that being the sum provable in relation to “forfeiture offences” as the benefits derived by Loo in relation to the offences proved.
His Honour, therefore, on 11 October 2000 ordered that Loo pay a pecuniary penalty pursuant to s.59 of the Act in the sum of $978,275; and made orders that certain property (but not the properties at Calambeena Avenue and Exhibition Street) be forfeited to the Minister pursuant to s.33 of the Act. Because an administrator had been appointed to Bow Ye on 14 September 2000, his Honour declined to make the declaration pursuant to s.70 of the Act; and the application for that declaration was adjourned in order for the parties to consider their respective positions and, in particular, whether an application for leave to proceed might be necessary under the relevant Corporations legislation.
By originating motion filed on 14 November 2000, the D.P.P. – pursuant to the provisions of s.440F of the then Corporations Law – sought leave to proceed with the application for the s.70 declaration. Before that application could be determined a meeting of creditors of Bow Ye, on 24 November 2000, resolved that the company be placed into liquidation. Pursuant to the provisions of the Law, the winding up of the company was deemed to have been commenced on the first day of the preceding administration; namely 14 September 2000.
On 1 December 2000 the originating motion seeking leave to proceed by the Director came before a Master of the Supreme Court who granted such leave; and on 6 March 2001 the D.P.P. filed an application seeking the declaration pursuant to s.70 of the Act; the earlier application having been discontinued.
The hearing of the application referred to in the preceding paragraph came before Ashley, J. on 14 November 2001. In accordance with sub-section (3) of s.70 his Honour ordered that the D.P.P. give notice of its application to certain persons who appeared to be creditors of Bow Ye (being the lenders to whom I have previously referred) and to persons who appeared to be beneficiaries under the Loo Family Trust of which Bow Ye was trustee. He then adjourned the application part heard for further hearing on 25 February 2002.
By a “Notice of Constitutional Matter” dated 20 February 2002, Loo gave notice that the application of the D.P.P. involved a matter under the Constitution or involving its interpretation within the meaning of s.78B of the Judiciary Act 1903. The matter, the subject of the Notice, was that:
(a)The relevant sections of the Act may be inconsistent with the law of the Commonwealth, namely the Corporations Act 2001 (Cth.) and, in particular, with Chapter 5 of that Act within the meaning of s.109 of the Commonwealth Constitution, and may therefore be invalid; and
(b)In the event that there is direct inconsistency between the State law in the form of the Act and the Corporations Act, the application of Part 1.1A of the Corporations Act may involve a matter arising under s.109 of the Constitution, or involving the interpretation of that provision.
On 25 February 2002 the trial judge decided to hear the whole of the application, save that which involved consideration of the constitutional question or questions. At the conclusion of submissions on 25 February 2002 his Honour adjourned the application, part heard, to 12 March 2002. On that day he heard submissions in relation to the constitutional questions. In accordance with reasons delivered on 18 June 2002[12], by which date the relevant properties had been sold by the liquidator of Bow Ye, his Honour made the following declarations and orders:
“(1)Declare, pursuant to s.70 of the Confiscation Act 1997, that there is property available to satisfy the pecuniary penalty order made against the first respondent by Hedigan, J. on 11 October 2000, such property consisting of the proceeds of sale of the property known as 26 Calambeena Avenue, Oakleigh … and the proceeds of sale of the property known as 181 Exhibition Street, Melbourne …, but excepting from the proceeds of sale of the properties the expenses incurred in the sale thereof and the reasonable remuneration and expenses of the Liquidator of and incidental to the winding up of the second respondent.
(2)Direct, pursuant to s.71 of the Confiscation Act 1997 that, within 28 days of the settlement of the sale of the last of the two properties referred to in paragraph (1) hereof, or within 14 days of these orders (whichever last occurs) the Liquidator of the second respondent pay to the Asset Confiscation Office, Vic. … - the proceeds of sale of the properties after deduction of the expenses and remuneration referred to in paragraph (1) hereof, and provide to the Director of Public Prosecutions a copy of the statement of adjustments and settlement statement in respect of each property, and an itemised account of his fees and expenses of and incidental to the winding up of the second respondent.
(3)Reserve liberty to any party to apply on 48 hours written notice to all other parties.”
[12][2002] VSC 231
The Judge’s Consideration of the Issues
The application pursuant to s.70(1) for a declaration involved consideration of a number of issues:
(a)Whether, on the date when the restraining order was made, the property was “subject to the effective control” of Loo. In respect of this issue, his Honour concluded that Loo should be considered to have been “in effective control” of the property at the time when the restraining order was made. His Honour said:
“Having regard to the picture which emerges from my conclusions upon matters of fact I have no doubt that [Loo] should be considered to have been in effective control of the trust property constituted by the Calambeena Avenue and Exhibition Street properties at the time when the restraining order was made.”
As I have earlier indicated, counsel for Loo had not contended to the contrary; in fact he submitted that such control seemed to be “clearly established”.
(b)The second issue which fell to be considered by the judge was the constitutional issue of inconsistency; the question being whether the State law (Confiscation Act) was inconsistent – within the meaning of s.109 of the Constitution (Cth.) - with the statutory regime for the disposition of assets of insolvent companies provided for in Chapter 5 of the Corporations Act (Cth.). This question involved the consideration of three related issues:
(i)Whether a statutory charge had arisen over the properties by reason of s.72(1) of the Act at the time of the making of the pecuniary penalty order securing payment of the proceeds of that order which had been made on 11 October 2000. It was common ground between the parties that such a statutory charge would confer upon the State the status of a secured creditor in the liquidation with the ability to “stand apart from the liquidation” and realize its secured asset. The concession so made did not become relevant because the trial judge found that s.72(1) of the Act did not create a charge over the properties (or the proceeds of sale thereof) at Calambeena Avenue and Exhibition Street because a charge created pursuant to s.72(1) does not attach to what might be called “effective control property”. The circumstances giving rise to a charge under s.72(1) were, in the judge’s view mutually exclusive from the circumstances giving rise to a charge under sub-section (2) of s.72. Accordingly, so his Honour found, a charge can only be created in respect of “effective control property” as at the date of the declaration made pursuant to s.70(1) of the Act; and that charge is the one referred to in s.72(2).[13]
(ii)The next question raised for his Honour’s consideration was whether there was direct inconsistency between s.70(1) and 72(2) of the Act and Chapter 5 of the Corporations Act, or whether the two laws were capable of concurrent operation. His Honour found that it was unnecessary to decide those questions because of the way in which he thereafter dealt with the third question (see hereunder). Whilst his Honour refrained from expressing a final opinion upon the concurrency question, he did express the view that it was strongly arguable that to make the orders sought would give rise to an operational inconsistency between s.70 and s.72(2) on the one hand, and Chapter 5 of the Corporations Act on the other.
(iii)The final question in issue, and considered by the trial judge, was whether any potential for inconsistency was avoided by the operation of s.5G of Part 1.1A of the Corporations Act. Counsel for the D.P.P. had submitted that direct inconsistency was avoided through the operation of sub-sections (4), (8) and/or (11) of s.5G; and submitted that these sub-sections should be read either literally or expansively in the light of the overall intention of Part 1.1A. The learned judge found that sub-sections (4) and (8) of s.5G did not apply; but his Honour accepted that sub-section (11) of s.5G should be read literally or expansively and rejected the contention made by counsel for Loo that it should be confined by application of the eiusdem generis rule of statutory construction. His Honour concluded that, in its terms, sub-section (11) was capable of preserving the operation of ss.70 and 72 of the Act. Direct inconsistency was thereby avoided by operation of s.5G of the Corporations Act and, accordingly, he acceded to the making of the declaration sought; and made consequential orders in the form to which I have earlier referred.
[13]This finding has not been challenged in this appeal.
The Issues on Appeal
The appeal has been brought in this Court by Loo alone, there being no representation on behalf of the Liquidator of Bow Ye as there had been before his Honour. As originally framed, the appeal brought into issue the third question to which I have referred in the preceding paragraph. The two original grounds of appeal took issue only with his Honour’s interpretation of s.5G(11) together with his rejection of the argument that the sub-section should be interpreted eiusdem generis so as not to apply to ss.70(1) and 72(2) of the Act. However, by consent orders made on 8 September 2004, the Court of Appeal granted leave to Loo to amend his notice of appeal by adding a third ground as follows:
“3.The learned trial judge erred in determining that ss.70 and 72 of the Confiscation Act 1997 met the conditions set out in the Table sub-joined to s.5G(3) of the Corporations Act 2001, in that he held that the said provisions were pre-commencement (commenced) provisions when the said provisions did not meet the conditions appertaining thereto, namely the provisions did not operate immediately before the commencement of the Corporations Act 2001 despite the provisions of the Corporations Law of Victoria as in force at that time.”
By Notice of Contention, the D.P.P. challenges certain findings of the learned judge and contends:
(a)That there is no operational inconsistency between ss.70 and 72(2) of the Act and Chapter 5 of the Corporations Act; and that the two sets of provisions are capable of concurrent operation; and
(b)That, in any event, either or both of sub-sections 5G(4) and 5G(8) of the Corporations Act applied so as to avoid any risk of inconsistency between ss.70 and 72(2) of the Act and Chapter 5 of the Corporations Act.
The Scope of the Appeal, and the Provisions of the Corporations Act relevant to the arguments
The principal ground argued by counsel for Loo on this appeal was ground 3 which was the ground added by leave of this Court on 8 September 2004. It is in the terms to which I have referred in paragraph [20]. Insofar as this ground asserts that the trial judge “erred in determining” this matter, it overstates the fact. The fact was that the trial judge assumed that the provisions of the Act were “pre-commencement (commenced) provisions” on the basis of a concession made by counsel for Loo. The trial judge, accordingly, approached the issues before him on the basis that the “roll-back” provisions in s.5G(3) of the Corporations Act applied, to avoid direct inconsistency, provided that one or more of the succeeding sub-sections in s.5G applied. However the Solicitor-General who appeared in this Court for the D.P.P. regarded the question of the proper interpretation of the relevant statutory provisions as a matter of sufficient importance to warrant her consent to the additional ground, and, thus, consented to the ground being added. The Court is, accordingly, relieved of the burden of considering the applicability of the principles established by decisions in such cases as Metwally v. University of Wollongong (No.2)[14]; Coulton v.Holcombe[15], and Masters v. McCubbery[16].
[14](1985) 60 A.L.R. 68 at 71.
[15](1986) 162 C.L.R. 1.
[16][1996] 1 V.R. 635 at 648, 658-9, 668.
Counsel for Loo submitted that ss.70 and 72 of the Act do not meet the conditions applicable to a “pre-commencement (commenced) provision” as set out in the Table annexed to s.5G(3) of the Corporations Act (Cth.) which were designed to avoid direct inconsistency between State and Commonwealth laws.
In order to consider this argument it is desirable to set out the relevant provisions of the Corporations Act. The provisions are contained in Part 1.1A of the Corporations Act which is, as I have already noted, calculated to reduce the area of potential conflict between State laws and the Corporations Act. The operative provisions for present purposes are s.5E, s5F and S5G. Relevantly, those sections provide as follows:-
“Part 1.1A – Interaction between the Corporations legislation and State and Territory laws
5E Concurrent operation intended
(1)The Corporations legislation is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
…
(4)This section does not apply to the law of the State or Territory if there is a direct inconsistency between the Corporations legislation and that law.
Note: Section 5G prevents direct inconsistencies arising in some cases by limiting the operation of the Corporations legislation.
…
5F Corporations legislation does not apply to matters declared by State or Territory law to be an excluded matter
(1)… } (These sub-sections provide that the Corporations
legislation of the Commonwealth does not apply to
(2)… } matters which are declared by a State law to be an
excluded matter)
(3)Subsection (2) does not apply to the declaration to the extent to which the regulations provide that that subsection does not apply to that declaration.
(4) By force of this subsection, if:
(a)the Corporations Law, … of a State or Territory; or
(b)a provision of that Law;
did not apply to a matter immediately before this Act commenced because a provision of a law of the State or Territory provided that that Law, or that provision, did not apply to the matter, the Corporations legislation, or the provision of the Corporations legislation that corresponds to that provision of that Law, does not apply in the State or Territory to the matter until that law of the State or Territory is omitted or repealed.
…
(6)In this section:
matter includes act, omission, body , person or thing.
5GAvoiding direct inconsistency arising between the Corporations legislation and State and Territory laws
Section overrides other provisions of the Corporations legislation
(1)This section has effect despite anything else in the Corporations legislation.
Section does not deal with provisions capable of concurrent operation
(2)This section does not apply to a provision of a law of a State or Territory that is capable of concurrent operation with the Corporations legislation.
Note:This kind of provision is dealt with by section 5E.
When this section applies to a provision of a State or Territory law
(3)This section applies to the interaction between:
(a)a provision of a law of a State or Territory (the State provision); and
(b)a provision of the Corporations legislation (the Commonwealth provision);
only if the State provision meets the conditions set out in the following table:
______________________________________________________________
Conditions to be met before section applies [operative]
Item Kind of provision Conditions to be met
1 a pre-commencement (a) the State provision operated, immediately
(commenced) provision before this Act commenced, despite the
provision of:
(i) the Corporations Law of the State or
Territory (as in force at that time); or(ii) the ASC or ASIC Law of the State or
Territory (as in force at that time);that corresponds to the Commonwealth
provision; and
(b) the State provision is not declared to be one
that this section does not apply to (either generally or specifically in relation to the
Commonwealth provision) by:(i) regulations made under this Act; or
(ii) a law of the State or Territory.
2 …
3 …
4 …
5 …
___________________________________________________________________________
Note 1: Item 1 – subsection (12) tells you when a provision is a
pre-commencement (commenced) provision.
Note 2: Item 1 paragraph (a) – For example, a State or Territory provision
enacted after the commencement of the Corporations Law might
not have operated despite the Corporations Law if it was not
expressly provided that the provision was to operate despite a
specified provision, or despite any provision, of the Corporations
Law (see, for example, section 5 of the Corporations (New South
Wales) Act 1990). Territory (as in force at that time); or (ii) the ASC or ASIC Law of the State or Territory (as
_________________________________________________________________________
State and Territory laws specifically authorising or requiring act or thing to be done
(4)A provision of the Corporations legislation does not:
(a) prohibit the doing of an act; or
(b)impose a liability (whether civil or criminal) for doing an act;
if a provision of a law of a State or Territory specifically authorises or requires the doing of that act.
(5)…
(6)…
(7)…
External administration under State and Territory laws
(8)The provisions of Chapter 5 of this Act do not apply to a scheme of arrangement, receivership, winding up or other external administration of a company to the extent to which the scheme, receivership, winding up or administration is carried out in accordance with a provision of a law of a State or Territory.
(9)…
(10)…
Other cases
(11)A provision of the Corporations legislation does not operate in a State or Territory to the extent necessary to ensure that no inconsistency arises between:
(a)the provision of the Corporations legislation; and
(b)a provision of a law of the State or Territory that would, but for this subsection, be inconsistent with the provision of the Corporations legislation.
Note 1:A provision of the State or Territory law is not covered by this subsection if one of the earlier subsections in this section applies to the provision : if one of those subsections applies there would be no potential inconsistency to be dealt with by this subsection.
Note 2:The operation of the provision of the State or Territory law will be supported by section 5E to the extent to which it can operate concurrently with the provision of the Corporations legislation.
Pre-commencement (commenced) provision
(12)A provision of a law of a State or Territory is a
pre-commencement (commenced) provision if it:
(a)is enacted, and comes into force, before the commencement of this Act; and
(b)is not a provision that been materially amended after commencement (see subsections (15) to (17)).[17]
[17]Sections 13 and 15AB of the Acts Interpretation Act 1901 provide that no heading of a section, footnote or end note shall be taken to be part of the Act except to the extent provided by s.15AB of that Act.
It is clear that these provisions are designed to regulate the interaction between the Corporations legislation and State acts with a view to limiting the scope for conflict between them. Section 5E(1) declares that the Corporations Act is not intended to exclude or limit the concurrent operation of any law of a State; whilst stipulating in sub-s. (4) that the section does not apply to a law of a State if there is “direct inconsistency” between the Corporations legislation and that law. It has, thus, been noted by courts and commentators that the Commonwealth law contains its own declaration that it is not intended to be “a complete statement of the law governing a particular matter or set of rights and duties”, to use the words of Dixon, J’s formulation in Victoria v. The Commonwealth[18]; on the contrary State laws may also regulate matters rights and duties provided that they do not do so in a way which involves “direct inconsistency”. It is, accordingly, apparent that Part 1.1A has rendered the “cover the field” test of “s.109 inconsistency” irrelevant; and the only question is whether there is “direct inconsistency”[19]. Furthermore, s.5F(2) goes a step further than s.5E by permitting a state law to declare a matter to be an “excluded matter” in relation to the whole or specified provisions of the Corporations Act. In that respect s.5F(1) and (2) replicate s.5(2) of the Corporations (Vic.) Act 1990, except that now the state legislation must use the language of “excluded matter”, rather than merely “an express provision” that the state law is to have effect despite specified provisions of the Corporations Law. Indeed, as the authors of Ford’s Principles of Corporations Law point out[20]:
“The effect of State legislation enacted under s.5(2) of the Corporations (Vic.) Act 1990, before the commencement of the Corporations legislation is preserved by s.5F(4), which has the effect that State … laws of these kinds operate to exclude the provisions of the Corporations legislation that correspond to the provisions of the old Corporations Law that have been excluded by the State … law.”
Nevertheless, s.5F(3) gives to the Commonwealth a power to override, by regulation, a state’s declaration of an excluded matter. Section 5G goes a step further because, as I have previously noted, its purpose is to allow State laws, which would otherwise be “directly inconsistent” with the Corporations Act, to prevail over that Act, or a provision thereof in circumstances defined by the section. The section is expressed in terms to have effect “despite anything else in the Corporations legislation” (s.5G(1)), but it does not apply where the provision of State law is capable of concurrent operation with the Corporations legislation, because in that case the operation of the State law is preserved by s.5E. Section 5G will, however, only apply where the relevant State provision satisfies the criteria of s.5G(3); and it is apparent from the terms of the sub-section that those criteria differ depending upon whether the State provision commenced before or after the commencement of the Corporations Act, namely on 15 July 2001. In general terms State provisions, which commenced before that date (as did ss.70 and 72 of the Confiscation Act (Vic.)), will only satisfy the conditions for the application of s.5G if the relevant provision of the State Act applied despite anything in the Corporations Law and there is no “overriding” Commonwealth regulation.
[18]Supra at 630.
[19]Ford’s Principles of Corporations Law, supra at 3206; HIH Casualty etc. (in liq.) & Ors. v. Building Insurers’ Guarantee Corporation, supra at 642.
[20]Supra at 3207.
These last observations are a synthesis of the conditions which are required to be satisfied to enable the provisions of s.5G to apply to a “pre-commencement (commenced) provision” of a State Act (i.e. item 1 in the Table appended to s.5G(3)). In that respect it is instructive to note the remarks of Barrett, J. in the H.I.H. case[21] about the operation of these conditions. In order to make those remarks intelligible to the issues in this appeal, I will supplant references made by his Honour to the New South Wales legislation with references to the Victorian legislation which was identical to the legislation which his Honour was considering. His Honour said:
[21]At pp.648 ff, paras [98] ff.
“I return now to the threshold issue whether s.5G(3) causes s.5G to apply to the interaction between the Corporations Act (or provisions of it) on the one hand and a particular State … provision on the other. So far as concerns the possibility addressed by item 1 in the first column of the Table in s.5G(3), the first question is whether the State … provision is, in terms of s.5G(12), a ‘pre-commencement (commenced) provision’. The answer depends upon factors mentioned in s.5G(12) …
Pending that assessment and in order to complete the consideration of item 1 in the table in 5G(3), I consider next the conditions in the third column of the table … . The first of those conditions (condition (a)) is that the State … provision operated, immediately before commencement of the Corporations Act on 15 July 2001 ‘despite the provisions of … the Corporations Law of the State (as in force at that time)’. Attention is thus directed to the nature of the interaction, immediately before that commencement, between the particular State … provision and the provisions of the Corporations Law of the State … in question. For condition (a) to be satisfied, the interaction must be found to be such that the State … provision operated ‘despite’ the provisions of the Corporations Law.”
His Honour then considered the ways in which the several Corporations Laws were brought into effect and applied. Having done so, he continued:
“In the case of each State …, the corresponding matters were dealt with by the jurisdiction’s own corporations statute of 1990 (that is, the Corporations [Victoria] Act 1990 [Vic.], and correspondingly named Acts of the other States …). In relation to the matters now under discussion, these Acts were uniform. Each caused the Corporations Law set out in s.82 of the Corporations Act 1989 (Cth.) to apply as a law of the State … and stated that the Corporations Law, as so applying, might be referred to as the Corporations Law of the State … . Each such Act contained a definition of ‘applicable provision’. That term included, in relation to a jurisdiction, a provision of the Corporations Law of that jurisdiction. The provisions of the Corporations Law of the particular State were thus ‘applicable provisions’ of that jurisdiction. Sections 5 and 6 of the Corporations [Victoria] Act 1990 [Vic.] – which I quote to illustrate the corresponding working of each other Act were as follows:
5.This Act and applicable provisions of [Victoria] not to be affected by later State laws[22]
(1) An Act enacted … after the commencement of this section is not to be interpreted as amending or repealing, or otherwise altering the effect or operation of this Act or the applicable provisions of [Victoria].
(2) Sub-section (1) does not affect the interpretation of an Act … so far as that Act provides expressly for that Act … to have effect despite a specified provision, or despite any provision, of this Act or the applicable provisions of [Victoria].
6.Operation of other [Victorian] Laws
Except as otherwise provided in this Act, nothing in this Act, or the applicable provisions of [Victoria] affects the operation after the commencement of this section of an Act enacted before that commencement …
The ‘despite’ specification in condition (a) in the third column against item 1 in the table in s.5G(3) of the Corporations Act 2001 (Cth.) must be understood against the background of this pre-existing legislative scheme. For each State … the provisions of the Corporations Law were, in general terms, to prevail over subsequent and inconsistent provisions of laws of the particular jurisdictions, unless expressly afforded precedence by legislation being … in the case of a State … a provision satisfying s.5(2) of the local corporations statute of 1990. Pre-existing and inconsistent provisions were dealt with differently. … For the States …, s.6 of each corporations statute of 1990 ceded continuing operation to pre-existing provisions generally, unaffected by Corporations Law provisions.
Returning to the conditions in the third column against item 1 in the table in s.5G(3) of the Corporations Act 2001 (Cth.), it will be seen that the second condition (condition (b)) entails the absence of any regulation made under the Act or any law of the particular State .. declaring the State … provision in question to be one to which s.5G does not apply, either generally or specifically in relation to the corresponding provision of the Corporations Act 2001 (Cth.).
If a particular state … provision is of the kind specified in the second column against item 1 in the s.5G(3) table and satisfies the conditions in the second (sic) column, the consequence is that s.5G applies to the interaction between the state … provision and a provision of the Corporations Act itself.”
[22]I have referred to these sub-sections in para.[5] of these reasons; but have repeated them to give meaning to the reasons of Barrett, J.
Contentions made on this Appeal
The explanation given by Barrett, J. of the circumstances in which s.5G will operate in respect of a “pre-commencement (commenced) provision” is, in my respectful opinion, correct in principle. Against the background of those statements of principle, I can return to the arguments of counsel made upon the issue of whether s.5G did operate in the circumstances of this case. I should note, for the sake of completeness, that it was not contested that, for this purpose, the relevant provisions of the Confiscation Act were pre-commencement (commenced) provisions to which item 1 of the table in s.5G(3) referred. I mention that only because the judge in the course of his reasons, first referred to the provisions of the Act as “pre-commencement provisions” in item 1 of the table[23], but later said [24]:
“The section [i.e. s.5G], by sub-s.(3) item 2 applies to a ‘pre-commencement (enacted) provision’ of a State law, a term defined by s.section (13). It was not in debate that the relevant provisions of the Act meet that definition.”
It is, however, I think, clear from the text of his Honour’s reasons that the parties were agreed that the relevant provisions of the Act were provisions within “item 1“ of the table. The Act came into force on 20 December 1997, well before the commencement of the Corporations Act.
[23]Paragraph [52] of the reasons for judgment.
[24]At [58].
In the light of the foregoing, it is appropriate that I return to ground 3 of the appeal, that is, the ground which asserts that the provisions of s.5G of the Corporations Act do not apply to the relevant provisions of the Confiscation Act because those provisions did not meet the conditions prescribed in item 1 of the Table appended to s.5G(3). On the basis that the relevant provisions of the State Act (namely ss.70 and 72) are “pre-commencement (commenced) provisions” within the meaning of the first “item” in the Table (a fact as to which there is no dispute), it is submitted by appellant’s counsel that condition (a) of “item 1” has not been met because the Confiscation Act provisions are not provisions which “operated, immediately before [the Corporations Act (Cth.)] commenced despite the provisions of the Corporations Law of Victoria that corresponded to [Chapter 5 of the present Corporations Act]”. Counsel submits that there is no provision in the Confiscation Act which permitted the provisions of that Act to operate despite the provisions of the Corporations Law of Victoria. In particular, counsel referred to the provisions of s.5 of the Corporations (Victoria) Act 1990, which embodied the Corporations Law of Victoria when the Confiscation Act was enacted in December 1997. As I have previously noted, s.5 is the provision which, by sub-s.(1), says that Acts enacted after the commencement of the Corporations (Victoria) Act are not to prevail over the Corporations Law, unless an Act “provides expressly” that it should have effect despite the provisions of the Law (i.e. sub-s.(2)). Appellant’s counsel submits that these provisions make it clear that condition (a) of “item 1” in the Table appended to s.5G of the Corporations Act cannot be met because there is no provision in the Confiscation Act which “provides expressly” for that Act, or any provision of it, to have effect despite any provision of the Corporations Law of Victoria. In other words, so it is submitted, ss.70 and 72 of the Confiscation Act are not provisions “which operated immediately before the commencement of the [Corporations Act 2001 (Cth.)] despite the provisions of the Corporation Law of Victoria that correspond to [Ch.5 of the Corporations legislation]” within the meaning of condition (a) of item 1 in the Table appended to s.5G of the Corporations Act. As Barrett, J. said in the HIH case[25], it is against the background of this pre-existing legislative scheme that the “despite” specification in condition (a) of the Table to Item 1 must be measured.
[25]Supra at 650, para [103].
In response to the appellant’s submissions, the Solicitor-General argued that ss.70 and 72 of the Confiscation Act do “expressly provide” that they will operate “despite” the provisions of Ch.5 of the Corporations Law. She submits that it is not necessary, in order to meet the requirement that a statute otherwise “expressly provides”, that one Act should contradict another statutory provision directly and explicitly before the requirement is satisfied. She calls in aid the High Court decision in Rose v. Hvric[26] in which Kitto, Taylor and Owen, JJ. were considering whether the provisions of s.74(1) of the Justices Act 1958 (Vic.) empowered a Court of Petty Sessions, “except where otherwise expressly enacted” to impose a penalty for an offence (which had been done in that case) where the Act creating the offence authorized the Court to impose imprisonment for the relevant offence, but not a penalty. In that case the defendant had been convicted for the second time of an offence of selling liquor without a licence contrary to the provisions of s.154 of the Licensing Act 1958 (Vic.) which provided, relevantly, that the defendant “shall be liable for a second or any subsequent offence to imprisonment … for a term of not less than 6 months nor more than 12 months”. Their Honours said [27]:
“What, then, is the point of insistence in such an exceptional provision as that which introduces s.74(1) of the Justices Act that the general provision shall apply except when otherwise ‘expressly enacted’? In appropriate contexts ‘expressly’ may be used as the antonym of ‘impliedly’, as it is in s.2(2) of the same Act and in the statement that ‘an express repeal of or an exemption from an earlier enactment is not more effectual than if it were created by implication’. … But this cannot be the sense of the word in s.74(1) for the reason which the statement just quoted provides. The word merely serves to emphasize the generality of the main provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention which it manifests.”
Their Honours further said[28]:
“Thus while an exception from the operation of a statutory provision may be effected by an inconsistent implication in a later provision … it cannot result from an enactment which is not inconsistent in meaning, and therefore in operation, even though the latter enactment provides ground for a conclusion that the draftsman’s train of thought, if logically pursued, would have led him to enact the exception. Explicit or implicit contradiction is efficacious : merely ‘inferential contradiction’ … is not. The general provision of s.74(1) of the Justices Act is accordingly prefaced by words which have a saving effect as regards earlier enactments, and serve as a reminder in relation to later, meaning in regard to both that the general provision which follows is not to be denied any of its operation save by something actually inconsistent with it in the operation of another enactment.”
[26](1963) 108 C.L.R. 353
[27]At 357-8.
[28]At 358-9.
The Solicitor-General submitted that this Court should apply the principles expounded in Rose v . Hvric in determining whether the provisions of the Confiscation Act “provided expressly” for that Act to prevail over the relevant provisions of the Corporations Law. She submitted that those principles had the support of other authorities which had decided that there is no need for one Act to make an express reference to the competing statute by name in order to “expressly” provide in respect of it[29]. The Solicitor-General distinguished the High Court decision in Roy Morgan Research Centre Pty. Ltd. v. Commissioner of State Revenue of the State of Victoria[30] where the Court had been concerned with the proper interpretation of s.17(2) of the Supreme Court Act 1986 (Vic.) which provided that:
[29]See, for example, Public Service Association (N.S.W.) v. Industrial Commission of New South Wales (1985) 1 NSWLR 627; Director of Public Prosecutions v. Kanfouche [1992] 1 V.R. 141 at 149-50; Chorlton v. Lings (1868) L.R. 4CP 374 per Willes, J. at 387.
[30](2001) 207 C.L.R. 72
“Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge.”
In the course of overruling the decision of this Court in Rabel v. Eastern Energy Ltd.[31], Gaudron, Gummow, Hayne and Callinan, JJ. said [32]:
“Section 17(2) contemplates ‘express’ provision otherwise. There are legislative provisions in which ‘expressly’ is not used as an antonym of ‘impliedly’ but ‘merely serves to emphasise the generality of [one] provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests’. It may be greatly doubted, however, that ‘expressly’ should be understood as being used in s.17(2) in this way. Section 17(2) is a provision which confers jurisdiction upon a court and it is, on that account alone, to be given no narrow construction. Rather, it is to be construed with all the amplitude that the ordinary meaning of its words admits.”
The Solicitor-General submitted that, for present purposes, the decision in the Roy Morgan case could be put to one side because the words in s.17(2) of the Supreme Court Act were a limitation upon a provision which conferred jurisdiction on a court. That is certainly true of the words contained in the last two paragraphs of the cited passage. However, the words in the second paragraph are apposite to the arguments in this appeal; namely that there are legislative provisions in which “expressly” is not used as an antonym of “impliedly”, but “merely serves to emphasize the generality of (one) provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests”. In this regard their Honours referred to Rose v. Hvric (supra); Metropolitan District Railway Co. v. Sharpe[33], and Chorlton v. Lings[34].
[31][1993] 3 V.R. 45
[32]At 78.
[33](1880) 5 App.Cas. 425
[34](1868) L.R.4 C.P. 374.
In the Metropolitan District Railway Co. case the words to be considered were “except where expressly varied”. Of these words Lord Blackburn said [35]:
“I do not think that because the words used in the Act are ‘expressly varied’ it is essentially necessary that there should be express words saying this particular section or provision shall not apply. I do not think that express words are required for that purpose, but it does require something that indicates an express intention that they shall not apply as far as applicable to the present case. … A variation showing that the provision was inapplicable would have the same effect as if it were expressly varied.”
In Chorlton v. Lings (supra), Willes, J. said [36]:
“It is not easy to conceive that the framer of that Act (13 and 14 Vict. C.21), when he used the word ‘expressly’, meant to suggest that what is necessarily or properly implied by language is not expressed by such language. It is quite clear that whatever the language used necessarily, or even naturally, implies is expressed thereby.”[37]
[35]At 441.
[36]At 387.
[37]See also Healey v. Festini [1958] V.R. 225. I should also note that the case of D.P.P. v. Kanfouche, supra, to which the Solicitor-General referred was also concerned with the provisions of a statute conferring appellate rights on a Court.
In the light of the authorities, to which I have referred, the Solicitor-General submitted that ss.70 and 72 of the Confiscation Act “expressly provided” that they will “operate … despite” Ch.5 of the Corporations Law. The submission was that such “express provision” is to be found in:
(a)Section 553B(2) of the Corporations Law which contemplated that a P.P.O. under the Confiscation Act would be admissible to proof in a liquidation; and/or
(b)the provisions of the Confiscation Act which contemplated that orders could be made under that Act which would bind company liquidators.
In support of the proposition contained in sub-para (a) above, it was contended that because P.P.O’s made under the Confiscation Act are “interstate pecuniary penalty orders” within the meaning of s.553B(2) of the Corporations Law, an amount payable pursuant to a P.P.O. would be admissible to proof against an insolvent company. Sub-s.(2) of s.553B provided that:
“An amount payable under … an interstate pecuniary penalty order is admissible to proof against an insolvent company.”
Thus, it is submitted, the express acknowledgment in s.553B(2) that a P.P.O. under the relevant proceeds of crime legislation may be proved against an insolvent company demonstrates that the Confiscation Act operated despite the fact that the company was being wound up in accordance with Ch.5 of the Corporations Law within the meaning of condition (a) of the Table annexed to item 1 in s.5G(3) of the Corporations Act. Therefore, it is said, s.5G operates to “roll back” the provisions of the Corporations Act to the extent necessary to avoid inconsistency, provided that one or more of sub-ss. (4) to (11) of s.5G apply.
I cannot accept these submissions for the following reasons:
(i)It is the Confiscation Act which must “provide expressly” for that Act to have effect despite the provisions of the Corporations Law. That is so, as it seems to me, whether one has regard to the provisions of s.5(2) of the Corporations (Victoria) Act 1990 or the conditions prescribed in item 1 of the Table annexed to s.5G(3) of the Corporations Act. This proposition is re-enforced by s.5F(4). As it seems to me, there is nothing in the Confiscation Act which necessarily implied that ss.70 and 72 of that Act were to prevail over Ch.5 of the Corporations Law[38].
(ii)In any event, the provisions of sub-s.(2) of s.553B of the Corporations Law do not, in my view, have sufficient specificity to demonstrate that ss.70 and 72 of the Confiscation Act “expressly provided” that they would operate despite the provisions of the Corporations Law, no matter what formula is provided for the meaning of those words. The words of s.553B(2), contained as they are within the “winding up” provisions of the Corporations legislation, presuppose that the P.P.O. has been made against the corporation; not against an individual. The words of s.553B(2) must take their meaning from the context of the legislation in which they appear. In this case it is the winding up of companies pursuant to Ch.5 of the Corporations legislation. Clearly the sub-section is not intending that “all P.P.O.’s” are admissible to proof against an insolvent company; nor – in accordance with the normal canons of construction of Statutes – could it be sensibly suggested that the words of sub-s.(2) of s.553B are capable of supporting an implication that the P.P.O.’s, of which the sub-section speaks, will include, in addition to those made against the company, those made against “any individual, whether director of the company or otherwise, who is found to be in effective control of the company’s property”.[39] There is nothing in the words of the sub-section which necessarily implies that the provisions of ss.70 and 72 of the Confiscation Act are to prevail over the relevant “winding up” provisions of the Corporations legislation of Victoria; nor in my view is there anything in the sub-section which could prevent s.5(1) of the Corporations (Victoria) Act 1990 from operating according to its tenor.
[38]Although the respondent did not specifically argue the point, the closest which, in my opinion, the Confiscation Act comes to “providing expressly” that it is to prevail over the Corporations legislation is to be found in the provisions of s.70, combined with the provisions of s.9. These provisions clearly intend to “enable the corporate veil to be pierced”, and to create the fiction that he, who controls the company, controls its assets for the purpose of satisfying a P.P.O. However the creation of that statutory fiction falls a long way short, in my opinion, of amounting to an “express provision” that the Confiscation Act (and particularly ss.70 and 72) are to prevail over the provisions of Ch.5 of the Corporations legislation.
[39]A P.P.O. made against an individual in “effective control” of property is not enforceable because he is the owner of the property, but because of the position created by the statute that he is to be treated “as if the property were his”.
The other basis upon which the Solicitor-General submitted that ss.70 and 72 Confiscation Act “expressly provided” that they would operate despite Ch.5 of the Corporations Law was that the Confiscation Act provisions contemplated that orders could be made under the State Act that would bind a company in liquidation. That submission was premised on the proposition that the Confiscation Act contained various provisions which permitted restraining orders to be directed to “trustees”, which term was defined to include an “official liquidator” within the meaning of the Corporations Law of Victoria, and empowered the Court to make orders “regulating the manner in which the trustee may exercise powers or perform duties under the restraining order”. Again, in my view, there is nothing in this submission. Such provisions are not provisions which “expressly provide” that the Confiscation Act, or ss.70 and 72, are to have effect despite the provisions of Ch.5 of the Corporations Act. Furthermore, those provisions do not apply to a liquidator conducting a voluntary winding up; a matter which, as I understood her, the Solicitor-General conceded.
For these reasons, I am of the opinion that Dr. Bleechmore is correct in submitting that the conditions prescribed in item 1 of the Table in s.5G(3) of the Corporations Act have not been met, and that therefore s.5G does not apply to avoid any direct inconsistency between ss.70 and 72 of the Confiscation Act and the “winding up” provisions of the Corporations legislation. Accordingly, ground 3 of the appeal succeeds and it is unnecessary for me to consider whether the trial judge was correct in his interpretation of s.5G(11) of the Corporations Act (being grounds 1 and 2 of the Notice of Appeal). Nor is it necessary to consider whether his Honour’s interpretation of sub-ss.(4) and (8) of s.5G are in error, as contended by the respondent in paragraphs 2 to 5 (inclusive) of its Notice of Contention dated 20 August 2004.
Concurrent operation of Corporations Act and Confiscation Act
The Solicitor-General submitted that, even if s.5G does not operate in the circumstances of this case, the relevant provisions of the Confiscation Act and the Corporations Act can operate concurrently within the meaning of s.5E of Part 1.1A which, as previously noted, provides:
“The Corporations Act is not intended to exclude or limit the concurrent operation of any law of a State …:
It was submitted that, because the Corporations Act was not intending to “cover the field” of the rights and liabilities of a company in liquidation, the Confiscation Act of Victoria may impact upon such rights and liabilities provided that the State law is capable of concurrent operation with the Corporations Act. The Solicitor-General concedes that the making of a declaration under s.70(1) of the State Act, and the statutory charge which s.72(2) of that Act creates in favour of the Crown, prima facie entitles the respondent to recover the full amount of a P.P.O. (made against Loo) out of the proceeds of the sale of the relevant properties in priority to the creditors of Bow Ye. It was nevertheless submitted that such a result is not inconsistent with the provisions of Ch.5 of the Corporations Act because:
(1)Section 553B of the Corporations Act applies by making such P.P.O’s (as were here made) admissible to proof in a winding up; and
(2)The effect of the declaration under s.70 is to confirm that the properties over which a statutory charge is created on the making of such a declaration were not assets available for distribution when the liquidation commenced.
Thus, it is submitted, the Corporations Act evinces a general intention to operate concurrently with the Confiscation Act. Accordingly, so the D.P.P. contends, a declaration made under s.70 of the Act does no more than impose additional obligations on the liquidator to be dealt with in the ordinary way. In this regard, the respondent relied upon the submissions made in respect of s.553B(2) of the Corporations Law when contending that those provisions “expressly provided” that the Confiscation Act provisions applied despite the provisions of the Corporations Law. It was further submitted that there is nothing in the words of s.553B(2) which requires that the P.P.O. be made against the company. Accordingly, the respondent contended that the P.P.O. in this case was admissible to proof in the liquidation because the property available to satisfy it is property in relation to which the appellant, as director, had “effective control”. Additionally, it was contended that it was the intention of s.553B(2) that it should apply to all P.P.O’s made under proceeds of crime legislation whether the P.P.O. was made before or after the commencement of the winding up. This is because, so it was said, the intention and effect of the Confiscation Act provisions are to “pierce the corporate veil” so as to prevent circumvention of the regime created by use of corporate structures. Thus, it is submitted, s.553B(2) is applicable in these circumstances, and, accordingly, there is clear concurrency of operation between the Corporations Act and the Confiscation Act so as to render unnecessary the invocation of Part 1.1A of the Corporations Act.
Although it was not necessary for the judge to conclude the question whether ss.70, 72 of the Confiscation Act could operate concurrently with the Corporations Act, he came to a firm provisional conclusion that they could not. In so concluding, the judge took into account the following matters:
· The amount payable pursuant to the P.P.O. is, by reason of sub-ss.(1) and (2) of s.74, to be regarded for all purposes as a civil debt due by the person to the Crown, and enforceable as if it were an order made by the court in civil proceedings instituted by the Crown against the defendant to recover a debt due by the defendant to the Crown. The import of these provisions is that the P.P.O. at once creates a civil debt due to the Crown enforceable by execution. That is so even though the circumstances giving rise to the order may have occurred a considerable time earlier. It is the making of the P.P.O. which creates the debt; and it is that which triggers the application under s.70 of the Act.
· By s.71 of the Confiscation Act the court is given wide powers to give necessary directions to effectuate the P.P.O. and, if necessary, to make an order directing a person specified therein to take control of property on which there is a charge created by (inter alia) s.72(2) of the Act. The consequence of those provisions is that a charge created by s.72(2) secures the Crown’s position “in some measure” deriving from the P.P.O.
· The enforceable debt due by the respondent to the Crown was established by the order of Hedigan, J. on 11 October 2000. The making thereafter of the s.70 declaration gives rise to the charge securing the debt, with the consequence that the debt and the security will each post-date the commencement of the winding up.
His Honour took the view that s.553B(2) could have no direct application in this case because the P.P.O. was made against Loo, not Bow Ye. He queried whether, even if a P.P.O. had been made against the company, such a P.P.O., made after the commencement of the winding up, would be effective. In any event, the judge was of the view that the debt created by the P.P.O. was only enforceable against Loo and that “none of that involved Bow Ye”. Yet the effect of making the order would be that Bow Ye’s assets would become security for the indebtedness of Loo, leaving the unsecured creditors of Bow Ye subject to the secured debt of the Crown. His Honour concluded:
“Where the legislature has restricted the circumstances in which penalties and fines are provable in a liquidation, I think it is difficult to conclude that a provision of a State Act rendering a corporate asset security for a pecuniary penalty order made after the date of commencement of a winding up, against a person other than the company, is capable of concurrent operation with the liquidator’s statutory duties to get in and apply the company’s assets in an orderly way. … Potentially, the liquidator may be deprived of assets of the company which would be otherwise available to meet the claims of unsecured creditors. Other than in respect of prior encumbrances a s.72(2) charge is able to operate in such a way.”
In my opinion, his Honour was correct in this conclusion. Without the benefit of the “roll back” provisions in s.5G(3), there is a direct conflict between the relevant provisions of the Confiscation Act and the provisions of Ch.5 of the Corporations legislation of a type which would “alter, impair or detract from the operation of the law of the Commonwealth Parliament”, to adopt the language of Dixon, J. in Victoria v. The Commonwealth[40]. Although, as I have previously remarked, the Corporations Act does not intend to “cover the field”, there will still be relevant “inconsistency” if the provision of the State law, if valid, would alter, impair or detract from the operation of the Commonwealth law.[41] Alternatively, direct inconsistency will arise when the Commonwealth and State laws make contradictory provisions upon the same topic, making it impossible for both laws to be obeyed.[42] In my view, direct inconsistency would arise here between ss.70 and 72 of the State Act and ss. 555 and 556 of the Corporations Act if the effect of the State Act contended for by the respondent is correct. If ss.70 and 72 of the Confiscation Act operate in accordance with their natural meaning, they will clearly interfere with and detract from the operation of the provisions of Ch.5 of the Commonwealth law. Sections 555 and 556 of the Corporations Act create rights in the creditors of a company in liquidation who are entitled to have their debts and claims paid in accordance with the priorities provided for in s.556. Those rights will be adversely affected if the provisions of ss.70 and 72 of the Confiscation Act are permitted to operate according to their tenor because those provisions have the effect of creating a special class of secured creditor by means of a charge created after the commencement of the winding up.
[40](1937) 58 C.L.R. 618. See also Telstra Corporation v. Worthing (1999) 197 C.L.R. 61 at 76-7.
[41]Telstra Corporation v. Worthing, supra, at 76-7; R. v. Credit Tribunal; ex parte G.M.A.C. (1977) 137 C.L.R. 545 at 563 per Mason, J.
[42]R. v. Credit Tribunal; ex parte G.M.A.C., supra, at 563.
The respondent’s submission was that ss.70 and 72 do not alter or impair or directly interfere with the provisions of Ch.5 of the Corporations Act because those provisions create a secured interest in relation to the properties which were the subject of the restraining order, which ante-dated the commencement of the winding up. That submission implies that the effect of the operation of the provisions of the State Act will impact upon the payment of the debts of the unsecured creditors of the company in accordance with the priorities referred to in s.556 of the Corporations Act, but that such an effect is not necessarily inconsistent with the winding-up provisions. The respondent’s submission is that the impact is warranted because the provisions of s.553B(2) of the Corporations Act apply in the circumstances of this case by making P.P.O’s admissible to proof in a winding up whether or not the P.P.O. is made before or after the winding up is commenced. This submission was, in part, founded upon the same arguments, which I have already rejected, upon which the respondent relied in contending that s.553B(2) was an “express provision” which enabled the Confiscation Act to apply despite the provisions of the Corporations Law. The submission also depended for its validity upon a rejection of the reasons of the trial judge, which reasons, in my view, were sound. Furthermore, insofar as the submission was founded upon the proposition that it was the intention of s.553B(2) to apply to all P.P.O’s made under proceeds of crime legislation whether made before or after the commencement of a winding up, it was, in part, based upon the provisions of s.82(3A) of the Bankruptcy Act 1966 which provided that an amount payable by the bankrupt under a P.P.O. is provable in bankruptcy.[43] It is contended by the respondent that this section infers that a P.P.O. made after the commencement of bankruptcy is provable. That may or may not be so having regard to the provisions of sub-s.(1) of s.82 of the Act which provides that, in general, all debts and liabilities of the bankrupt “to which he or she was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable …”. These provisions, or provisions to like effect, are not to be found in the winding up provisions of the Corporations Act, and I share the doubts of the trial judge that a P.P.O. made after the date of the commencement of the winding up would fall within the relevant provisions of the Corporations legislation. In any event, that is an issue which does not have to be determined because, like the trial judge, it is my view that the provisions of s.553B(2) has no direct application to the circumstances here being considered because the P.P.O. was made against the appellant, and not Bow Ye.
[43]Sub-section (3A) of s.82 was repealed by the Proceeds of Crime … Act 2002 (Cth.), Schedule 4; but was replaced by a sub-section in the following form:
“(3A)An amount payable under an order made under a proceeds of crime law is not provable in bankruptcy.”
In accordance with these reasons, it is my opinion that ss.70 and 72 of the
Confiscation Act are operationally inconsistent with, and cannot operate concurrently with the winding up provisions in Ch.5 of the Corporations Act. The appeal should be allowed and, in lieu of the orders of the trial judge, there should be substituted an order that the application before him should be dismissed.
CHARLES, J.A.:
Having had the advantage of reading the reasons for judgment prepared by the President in this matter, I agree that the appeal should be allowed and orders made as proposed by his Honour, for the reasons he gives.
CALLAWAY, J.A.:
I agree with the learned President that this appeal should be allowed, that the orders below should be set aside and that, in lieu thereof, the application by the respondent for a declaration, pursuant to s.70 of the Confiscation Act 1997, that the whole or a specified part of property at 26 Calembeena Avenue, Oakleigh and at 181 Exhibition Street, Melbourne is available to satisfy a pecuniary penalty order made against the appellant should be dismissed. My reasons are similar to his Honour’s but they are not identical and I should like to state them in my own words.
It was common ground that the relevant provisions of the Confiscation Act are State provisions that satisfy s.5G(12) of the Corporations Act 2001 and are therefore “pre-commencement (commenced) provisions”. For s.5G to apply to the interaction between those provisions and the provisions of the Corporations Act relating to winding up, the relevant provisions of the Confiscation Act have to meet conditions (a) and (b) in item 1 of the table appended to s.5G(3). Condition (b) is satisfied. Condition (a) requires that the relevant provisions of the Confiscation Act operated, immediately before the Corporations Act commenced, despite the provisions of the Corporations Law of Victoria that corresponded with the provisions of the
Corporations Act relating to winding up.
The question whether the relevant provisions of the Confiscation Act operated despite those provisions of the Corporations Law is to be answered in the light of ss.5 and 6 of the Corporations (Victoria) Act 1990, which provided:
“5.(1) An Act enacted, or an instrument made under an Act, after the commencement of this section is not to be interpreted as amending or repealing, or otherwise altering the effect or operation of, this Act or the applicable provisions of Victoria.
(2) Sub-section (1) does not affect the interpretation of an Act, or of an instrument made under an Act, so far as that Act provides expressly for that Act or instrument, as the case may be, to have effect despite a specified provision, or despite any provision, of this Act or the applicable provisions of Victoria.
6.Except as otherwise provided in this Act, nothing in this Act or the applicable provisions of Victoria affects the operation after the commencement of this section of an Act enacted before that commencement or of an instrument made under such an Act.”
The “applicable provisions of Victoria” included the Corporations Law.[44]
[44]See the definition of “applicable provision” in s.3 of the Corporations (Victoria) Act.
Sections 5 and 6 distinguish between existing State laws and State laws made after the adoption of the Corporations Law. Putting aside the words of exception at the beginning of s.6, the operation of existing laws is unaffected but later laws are to be interpreted in accordance with s.5. The rule of interpretation applicable to a later Act is that it is not to be interpreted as amending or repealing, or otherwise altering the effect or operation of, the Corporations Law except to the extent that the later Act provides expressly for the later Act to have effect either (a) despite a specified provision of the Corporations Law or (b) despite any provision of the Corporations Law.
It was not contended that the Confiscation Act provided that it should have effect despite any provision of the Corporations Law, but the Solicitor-General submitted that the Act did provide expressly that it should have effect despite the
provisions of the Corporations Law relating to winding up. The difficulty with that submission, in my opinion, is that, even if “expressly” in s.5(2) included “by necessary implication”, the provisions of the Corporations Law relating to winding up are not “specified”. The collocation of “expressly” and “specified” in a sub-section directed to the interpretation of an Act cannot be overcome by any simple implication. There would have to be such intractable inconsistency between the relevant provisions of the Confiscation Act and the provisions of the Corporations Law relating to winding up as to imply the repeal pro tanto of the rule of interpretation in s.5.
The Solicitor-General’s argument focused on s.553B(2) of the Corporations Law. (An argument based on the definition of “trustee” in the Confiscation Act was abandoned.) Section 553B(2) provided that an amount payable under a pecuniary penalty order of the kind in issue in these proceedings was “admissible to proof against an insolvent company”. In my opinion, that referred only to a pecuniary penalty order made against the company, partly because that is the natural meaning of the words and partly because s.553B was a qualified exception to s.553, which enacted a general principle that debts payable by, and claims against, the company were admissible to proof against it.[45] The pecuniary penalty order with which we are concerned was made against the appellant personally.[46]
[45]Similar considerations applied prior to the Corporate Law Reform Act 1992, when, instead of s.553B(2), s.553 applied the then s.82(3A) of the Bankruptcy Act 1966 to the winding up of insolvent companies.
[46]It is unnecessary to consider what the position would have been if the pecuniary penalty order had been made against Bow Ye. Both the order and the statutory charge would have come into existence after the notional commencement of the winding up.
It is true that, in s.9 of the Confiscation Act, Parliament has disclosed an intention to pierce the corporate veil in relation to property subject to the effective control of a defendant, but much clearer language would have to be used to subordinate the claims of the unsecured creditors of a company in liquidation to a pecuniary penalty order not made against the company. [47]
[47]As Templeman, L.J. said in Borden (U.K.) Ltd. v. Scottish Timber Products Ltd. [1981] Ch. 25 at 42, unsecured creditors “receive a raw deal”. Their rights should not be eroded except by a clear statement to that effect. Compare Chief Justice Spigelman’s address “The Principle of Legality and the Clear Statement Principle” delivered at the conference on Working with Statutes in Sydney on 18th March 2005. A copy is available in the Supreme Court library and also at type="1">
For similar reasons, if the relevant provisions of the Confiscation Act were given the effect for which the respondent contends, they would alter, impair or detract from the operation of the provisions of the Corporations Act relating to winding up.[48] There would be “a direct inconsistency” within the meaning of s.5E(4) of the Corporations Act, so that that section, like s.5G, would not apply.
[48]Compare Victoria v. The Commonwealth (1937) 58 C.L.R. 618 at 630 per Dixon, J. and Telstra Corporation Ltd. v. Worthing (1999) 197 C.L.R. 61 at 76 [28].
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