Price, John Ernest v Australian Securities Commission

[1997] FCA 1561

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 477  of 1997

BETWEEN:

JOHN ERNEST PRICE
APPLICANT

AND:

AUSTRALIAN SECURITIES COMMISSION
FIRST RESPONDENT

AUSTRALIAN FEDERAL POLICE
SECOND RESPONDENT

INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA
THIRD RESPONDENT

JUDGE:	MERKEL J
DATE:	12 DECEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

In this matter, the applicant John Ernest Price commenced a proceeding on 18 August 1997 seeking to challenge the issue, and execution against him, of a search warrant.  The application was brought on a wide range of grounds which are put forward to challenge both the validity of the warrant and the validity of its execution. 

Mr Price and the first and second respondents, the Australian Securities Commission (“ASC”) and the Australian Federal Police, filed material in relation to the application when it first came on for hearing before me on 5 December 1997.  I indicated to Mr Price, who has been appearing in person, that I was not satisfied that the material raised grounds establishing that the warrant was invalidly issued.  The material relied upon for the issue of the warrant was not before the Court. I am not satisfied that any basis has been demonstrated in the evidence or as a matter of law for finding that the issue of the warrant was invalid or not authorised by the statute under which it was issued.

Mr Price also put forward certain material to say that the warrant had been executed in an oppressive way and that the officers executing the warrant had exceeded the entitlement they had under it. Some very general statements were made in the affidavit material by Mr Price.  Again, I informed Mr Price that the material was in a very general form and was not specific or precise enough to satisfy me that any illegality occurred on the part of any identifiable officer or that there was otherwise any clearly stipulated or identified conduct which exceeded the lawful entitlements conferred under the warrant.

Since that adjourned hearing no further evidence as to invalidity of the warrant or the method of its execution has been filed. I am quite satisfied on the material before me that it is appropriate to dismiss the application on the ground that Mr Price, as the applicant, has not made out a case for the relief that he seeks.

However, in addition to the events I have described, a number of other events have occurred.  The first is that the Court has been informed that all of the documents seized pursuant to the warrant, apart from two passports, have been returned to the applicant and that, subject to certain limited exceptions, all copies of those documents have been destroyed, so that the documents, or copies of the documents, seized are no longer in the possession of the ASC.

The exceptions only relate to copies of documents relating to the passports, made in order to prove their seizure and delivery to the Insolvency and Trustee Service Australia (“ITSA”) and also documents that are exhibits to affidavits filed in the Court.  Therefore, even if some ground for relief was made out this would be a case where, in the events that have occurred, it would be inappropriate as a matter of discretion to grant any relief because, in effect, the subject matter on which there was a dispute has been returned to the applicant and there would be no basis for the grant of relief in respect of that subject matter.

There has been one exception and that relates to the two passports of Mr Price which were seized under the warrant.  On the last occasion it appeared that the ASC delivered those passports to ITSA at its Western Australia Branch. I expressed my concern that it may well have been beyond the power of the ASC to do so. The warrant was issued for the purposes of the Corporations Law, not the Bankruptcy Act 1966 (Cth).  As a result of those matters I ordered that ITSA be joined as a party and that the matter come back before me today for its final disposition.

ITSA has filed an affidavit, as has the ASC, explaining how the passports came to be placed in ITSA’s possession. A demand, pursuant to s 77(a)(ii) of the Bankruptcy Act, had been made to the applicant prior to the issue of the warrant, to deliver his passports up to the Trustee.  The passports were then seized under the ASC warrant.  When that was ascertained by ITSA, requests were made by it to the ASC for the delivery up of the passports. Certain documents passed between Mr Price, and Messrs Gething and Gallant, (officers of the first and third respondents) in relation to the passports.

The correspondence shows that although Mr Price had objected to the ACS’s and ITSA’s entitlement to be in possession of the passports, he did agree to the passports being delivered up by the ASC to ITSA in Melbourne and marked for the attention of Mr Matthew Gallant, who is the Assistant Official Receiver in Melbourne.  After my order joining ITSA as a party to these proceedings, it voluntarily delivered the two passports into the custody of the Court. 

It seems to me that the delivery up of the passports to the Court was made in good faith on the basis that if the Court was disposed to make an order that the passports be returned to Mr Price then that could be given effect to without any difficulty. I am satisfied that the passports were validly seized under the warrant by the ASC and, following the agreement of Mr Price, they were delivered by the ASC to ITSA as a consequence of the request under s 77(a)(ii).

On 8 December 1997 Mr Price purported to revoke the authority he gave for delivery to ITSA of his South African passport. By that time the authority had been given and the passport had been delivered into the possession of ITSA pursuant to the provisions of the Bankruptcy Act. Accordingly the Trustee was lawfully entitled to retain possession of it.  The question was not whether Mr Price consented or did not consent to the provisions of the Bankruptcy Act applying. The only question was whether or not he had consented to the ASC delivering up the passport into the possession of ITSA.  I am satisfied on the material before me that he did.

After the delivery up of the passports, they remained in the possession of the ITSA pursuant to the provisions of the Bankruptcy Act and it was not open to Mr Price of his own motion or volition to seek to change that situation other than pursuant to the provisions of the Bankruptcy Act.

In these circumstances I am satisfied that the ITSA is entitled to have lawful custody of the passports and I propose to direct that they be delivered up into ITSA’s possession in Melbourne to be retained in the custody of Mr Gallant, who is the person to whom Mr Price originally consented that they would be delivered.

Mr Price's real complaint in the present matter in light of the events that have now occurred is that the delivery up of the passports effectively prevents him from leaving Australia.  However, as was indicated to him in the course of his submissions to the Court, Mr Price’s entitlement, or lack thereof, to leave Australia is a matter to be resolved under the Bankruptcy Act. I do not regard it as an issue that is raised by or appropriate for determination in the present proceeding.

It is open to Mr Price to make such applications to the Court under the Bankruptcy Act as he may be advised, but that is not a matter with which I have to deal today.  In those circumstances I am satisfied that the appropriate orders for the Court are:

1. The application is dismissed.

2. The two passports of Mr Price delivered up by the third respondent to the Court be delivered up to the Official Trustee to be held in the custody of Mr Gallant pursuant to the provisions of the Bankruptcy Act 1966 (Cth).

As no orders are sought for costs, I will make no order as to costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel

Associate:

Dated:            12 December 1997

Counsel for the Applicant:	Mr J Price in person
Counsel for the First and Second Respondent:	Mr P Hiland
Solicitor for the First and Second Respondent:	General Counsel, Victoria, Australian Securities Commission
Counsel for the Third Respondent	Mr M O’Brien
Solicitor for the Third Respondent	Australian Government Solicitor
Date of Hearing:	5 and 12 December1997
Date of Judgment:	12 December 1997