Malubel Pty Ltd v Elder

Case [1997] FCA 1535


MALUBEL PTY LTD and JIM KYU CHUNG v WENDY ELDER, DONALD JOHN WHINFIELD and ALBERT GARDNER
No. NG 898 of 1997
FED No. 1535
Number of pages - 22
Search Warrants

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

MOORE J

SEARCH WARRANTS - warrants issued under the Crimes Act 1914 - validity - whether it was necessary for jurisdiction to be disclosed on the face of the warrants - whether jurisdiction was disclosed - Whether description of executing officer or person assisting as Federal Agent invalidated warrants - severance - adequacy of description of material that may be seized - whether issue of warrants involved improper exercise of power - whether there was a failure to disclose material facts evidencing fraud - whether warrants issued for the purpose of ascertaining tax liability rather than to obtain evidential material of a defrauding of the Commonwealth

Administrative Decisions (Judicial Review) Act 1977

Australian Federal Police Act 1979, s 33

Crimes Act 1914, ss 3E

National Crime Authority Act 1984, s 49

Beneficial Finance Corporation Limited v Commissioner of Australian Federal Police (1991) 31 FCR 523

Dunesky v Elder (1994) 54 FCR 543

Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 524

Ousley v The Queen (1997) 71 ALJR 1542

Puglisi v Fisheries Authority (1997) 148 ALR 393

SYDNEY, 11, 14 November and 5 December 1997 (hearing), 24 December 1997 (decision)

#DATE 24:12:1997

#ADD 13:01:1998

Appearances

Counsel for the Applicants:

Mr D B McGovern & Mr L J W Aitken
Solicitor for the Applicants:
Giles Payne & Co
Counsel for the Second and Third Respondents:
Mr D J Fagan SC & Mr M Wigney
Solicitor for the Second and Third Respondents:
Australian Government Solicitor

Order:

1. The application is dismissed.

2. The applicants pay the respondent's costs.

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

MOORE J

INTRODUCTION

This is an application by Malubel Pty Ltd ("Malubel") and Mr Jim Kyu Chung under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") and s 39B of the Judiciary Act 1903 seeking to impugn a decision of the first respondent, Ms Wendy Elder, to issue two search warrants under s 3E of the Crimes Act 1914 and challenging related decisions and conduct. The warrants were executed on 28 October 1997 by the second and third respondents at premises at which Malubel operated its business of manufacturing and retailing sheep skin products and at the home of Mrs Yeong Chang who was a bookkeeper employed by Malubel. Documents were seized but they are the subject of an undertaking by the second and third respondents that they remain secure until these proceedings are concluded.

DEALINGS BETWEEN MALUBEL AND THE AUSTRALIAN TAX OFFICE

In order to understand the issues in the proceedings it is necessary to recount in some detail the dealings between Malubel and both the National Crime Authority ("the Authority") and the Australian Taxation Office ("ATO"). On…

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AGLC
Malubel Pty Ltd v Elder [1997] FCA 1535
Case
[1997] FCA 1535
Decision Date

CaseChat Overview and Summary

Malubel Pty Ltd and its director, Mr Malubel, have brought an application to set aside and quash various search warrants issued by a Federal Magistrate under the Crimes Act 1914. The warrants were executed at premises associated with the applicants, and the subject of the warrants was the investigation of alleged tax fraud. The applicants have brought this application on the grounds that the warrants are invalid on a number of bases. The matter was heard in the Federal Court of Australia.

The key legal issues the court had to decide were whether jurisdiction was correctly disclosed on the face of the warrants, whether the warrants were invalid because the executing officer or assisting persons were described as Federal Agents, whether the warrants were inadequately descriptive of the material that could be seized, and whether there was an improper exercise of power in the issuance of the warrants. The applicants further argued that there was a failure to disclose material facts evidencing fraud, and that the warrants were issued for the purpose of ascertaining tax liability rather than to obtain evidential material of defrauding the Commonwealth.

The court considered the statutory provisions governing the issuance of search warrants and the common law principles that apply. It held that the warrants were valid despite the absence of jurisdictional disclosure on the face of the warrants, because the warrants were issued under a provision of the Crimes Act which did not require such disclosure. The court found that the description of the executing officer or assisting persons as Federal Agents did not invalidate the warrants, as the title did not affect the validity of the warrants. The court held that the warrants were adequately descriptive of the material that could be seized. The court also held that there was no improper exercise of power in the issuance of the warrants, because all the statutory requirements had been met and there was no failure to disclose material facts evidencing fraud. The warrants were issued for the proper purpose of obtaining evidential material of defrauding the Commonwealth, and not merely to ascertain tax liability.

The application was dismissed with the applicants ordered to pay the respondent’s costs.

Orders

Orders of the court

1. The application is dismissed.

2. The applicants pay the respondent's costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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