R v Turner (No 17)
[2002] TASSC 18
•19 March 2002
[2002] TASSC 18
CITATION: R v Turner (No 17) [2002] TASSC 18
PARTIES: R
v
TURNER, Phillip Bruce
LEE, Mervyn Robin
JANSEN, Cornelius Marinus
COULSTON, Daren Te Ariki Charles
TEDESCO, Antonio
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 320/2000
DELIVERED ON: 19 March 2002
DELIVERED AT: Hobart
HEARING DATES: 26 - 30 March,
26, 27 April,
8, 17, 18, 23, 30 May,
8, 21 June,
2, 17, 23, 25, 27, 30, 31 July,
1-3, 6-10, 13-17, 20-24, 27-31 August,
3-6, 10-12, 14, 17-21, 24-26, 28 September,
1-5, 8, 9, 16-19, 22, 23, 29 October,
1, 2, 7, 8, 29 November,
18 December 2001,
14, 31 January,
1, 18-22, 25-28 February,
1, 4 - 8, 18, 19 March 2002
JUDGMENT OF: Blow J
CATCHWORDS:
Evidence - Documentary evidence - Statutory provisions relating to business records - Particular cases - Books kept by corporation - Meaning of "kept".
Corporations Act 2001 (Cth), ss1305, 1307.
Duke Group Ltd v Pilmer (1994) 63 SASR 364; Valoutin v Furst (1998) 154 ALR 119, followed.
Residues Treatment and Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54; The Tubby TroutPty Ltd v Sailbay Pty Ltd (1993) 42 FCR 595, not followed.
R v Connell (1996) 14 ACLC 32; Caratti v R (2000) 22 WAR 527, referred to.
Aust Dig Evidence [122]
REPRESENTATION:
Counsel:
Crown: M Rozenes QC, K E Read, J Read & I M Arendt
First Accused: M L Abbott QC & M Selley
Second Accused: G L Sealy & B R McTaggart
Third Accused: P A Dunn QC & J D Edwardson
Fourth Accused: B J Powell QC & G A Brown
Fifth Accused: J M Fuller
Solicitors:
Crown: Commonwealth Director of Public Prosecutions
First Accused: Jennings Elliott as agents for: Iles Selley
Second Accused: Ogilvie Jennings
Third Accused: Jennings Elliott as agents for: John Lister
Fourth Accused: Jennings Elliott as agents for: Coates PL
Fifth Accused: Jennings Elliott as agents for: Lynch & Meyer
Judgment ID Number: [2002] TASSC 18
Number of Paragraphs: 31
Serial No 18/2002
File No 320/2000
THE QUEEN v PHILLIP BRUCE TURNER,
MERVYN ROBIN LEE, CORNELIUS MARINUS JANSEN,
DAREN TE ARIKI CHARLES COULSTON
and ANTONIO TEDESCO (No 17)
REASONS FOR JUDGMENT BLOW J
19 March 2002
These are my reasons for a determination made by me pursuant to the Criminal Code, s361A on 18 March 2002. The accused have pleaded not guilty, but a jury has yet to be empanelled. The Crown alleges that they conspired to understate orange roughy catches in returns submitted to the Australian Fisheries Management Authority ("AFMA") in 1992 and 1993, or to cause such catches to be understated in such returns. The Crown proposes to rely upon a substantial quantity of documentary evidence, apparently including documents seized from the offices of a fish processing company in December 1993 and June 1994. The evidence said to have come from that company includes invoices for fish that it purchased, invoices it received from fish unloaders, its internal records as to weights of fish unloaded including dockets and summary sheets, its internal production reports, and its records as to payments made for fish that it purchased. The Crown also proposes to rely on documents that are said to have come from a fishing company, including sales reports and master crew share sheets said to have been used for the purposes of calculating payments to fishing boat crews. The Crown also proposes to rely on documents said to be that company's internal vessel trip reports, recording quantities of fish consigned for processing, and a table said to show fictitious crew pay rates to be adopted according to the extent of the alleged understatement of catches and other relevant circumstances. I was assured by counsel that the Crown proposed to rely on the provisions of the Corporations Act 2001 (Cth), s1305, which relates to the tendering in evidence of books kept, or purportedly kept, by a corporation, and that it would be necessary for me to rule on the scope of s1305, particularly in relation to its relationship with s1307.
Section 1305 reads as follows:
"(1) A book kept by a body corporate under a requirement of this Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book.
(2) A document purporting to be a book kept by a body corporate is, unless the contrary is proved, taken to be a book kept as mentioned in subsection (1)."
The Corporations Law, s1305, was in the same terms, except that s1305(1) applied to a book:
"(a)kept by a body corporate under a requirement of this Law; or
(b)kept by a corporation under a requirement of a previous law corresponding to a provision of this Law".
The following definition appears in s9:
"books includes:
(a) a register; and
(b) any other record of information; and
(c) financial reports or financial records, however compiled, recorded or stored; and
(d) a document …".
A substantially similar definition appeared in the Corporations Law, s9. It is significant that, for the purposes of both pieces of legislation, every document was a "book".
Section 1307 was amended in late 2001. Any keeping of any books relevant to this case occurred before then. It is therefore appropriate to have regard to the original wording of s1307, which was identical to that of the Corporations Law, s1307. The wording was as follows:
"1307(1) An officer, former officer, member or former member of a company who engages in conduct that results in the concealment, destruction, mutilation or falsification of any securities of or belonging to the company or any books affecting or relating to the affairs of the company is guilty of an offence.
(2) Where matter that is used or intended to be used in connection with the keeping of any books affecting or relating to affairs of a company is recorded or stored in an illegible form by means of a mechanical device, an electronic device or any other device, a person who:
(a)records or stores by means of that device matter that the person knows to be false or misleading in a material particular; or
(b)destroys, removes or falsifies matter that is recorded or stored by means of that device, or has been prepared for the purpose of being recorded or stored, or for use in compiling or recovering other matter to be recorded or stored by means of that device; or
(c)having a duty to record or store matter by means of that device, fails to record or store the matter by means of that device:
(i) with intent to falsify any entry made or intended to be compiled, wholly or in part, from matter so recorded or stored; or
(ii) knowing that the failure so to record or store the matter will render false or misleading in a material particular other matter so recorded or stored;
contravenes this subsection.
(3) It is a defence to a charge arising under subsection (1) or (2) if the defendant proves that he, she or it acted honestly and that in all the circumstances the act or omission constituting the offence should be excused.
(4) In this section, 'officer', in relation to a company, includes a receiver of property of the company who is not also a manager."
Having been assured by counsel that it would be necessary for me to do so sooner or later, I decided that I would determine, pursuant to the Criminal Code, s361A, the answers to the following three questions:
1 Does s1305 apply to all books retained in the custody of a body corporate under a requirement of the Corporations Act, or only to books required to be maintained in a systematic fashion under a requirement of that Act?
2 Does s1305(2) operate to deem a document not only to be a book, and to have been kept by a body corporate, but also to have been so kept under a requirement of the Act?
3 Does the prohibition in s1307(1) of the destruction of books affecting or relating to the affairs of a company constitute a requirement of the Act as to the keeping of books for the purposes of s1305(1)?
Counsel did not make any submissions as to the transitional provisions in the Corporations Act. These are relevant, since all of the company records to be relied upon, or practically all of them, apparently date from 1992 and 1993, whereas the Act commenced on 1 July 2001. Section 1305 makes no reference to earlier legislation. However, s1405(1) provides inter alia that a reference in the new corporations legislation (which includes the Corporations Act) to an Act that is part of the new corporations legislation, or a provision or group of provisions of such an Act, is taken, in relation to events, circumstances or things that happened or arose at a time when the old corporations legislation was in force (and that includes 1992 and 1993) to include a reference to the corresponding provision or provisions of the old corporations legislation of the States (and that includes the Corporations Law). The object of the relevant transitional provisions, including s1405(1), is stated in s1370(1). The object is to provide for a smooth transition from the régime provided for in the old corporations legislation to the régime provided for in the new corporations legislation so that, inter alia, individuals and bodies corporate are, to the greatest extent possible, put in the same position as they would have been if the old corporations legislation had been valid, and the new corporations legislation, to the extent that it contains provisions that correspond to those of the old corporations legislation, were a continuation of that old corporations legislation. By virtue of s1370(2), an interpretation consistent with that object is to be preferred in resolving any ambiguity. As I have said, the Corporations Act, s1305, is in substantially identical terms to the corresponding section of the Corporations Law, and s1307, as originally enacted, was identical with the corresponding section of the Corporations Law. I think it must follow that s1305 should be interpreted as if it had been in force at all material times, and that s1307 should be interpreted as if it, in its original form, had been in force at all material times prior to the amendment late last year.
Meaning of "kept"
The Corporations Act, as did the Corporations Law, contains a number of provisions requiring the maintenance or retention, to use neutral terms, of records. Under s168, a company must "set up and maintain" a register of members and, if applicable, a register of option holders and copies of option documents, and/or a register of debenture holders. By s271(2), a company is required to "keep" a register of charges. By s271(1), a company is required to "keep" at the same place as that register, a copy of every document relating to a charge on property of the company that was or is lodged under Part 2K.2, and a copy of every document given to the company under that Part. More significantly for the purposes of this case, a company is required by s286(1) to "keep" written financial records that correctly record and explain its transactions and financial position and performance, and would enable true and fair financial statements to be prepared and audited. Section 286(2) expressly provides that such financial records must be "retained" for seven years after the transactions covered by the records are completed.
In a number of cases concerning evidentiary provisions as to records kept by companies, the word "kept" has been given a narrow interpretation. In Residues Treatment and Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54, Perry J was concerned with the Companies (South Australia) Code, s550, which was the predecessor of s1305. It was argued that a company's annual report, which it had a statutory obligation to create, was a "book kept by a corporation pursuant to a requirement of this Code". His Honour said, at 77:
"In my opinion, given its context, the word 'kept' in s550(1) does not simply mean a document which is retained by a corporation. It seems to me that it is an essential part of the quality of a document which is said to come within the scope of s550, that it should be in the nature of a document or record which is in some way maintained by the corporation in a systematic or periodic fashion.
It is true, as Mr Bathurst QC put in the course of his argument, that a company would normally keep a copy of its Annual Report and make it available, from time to time, for inspection by people who had a legitimate reason to see it.
But that consideration is not sufficient to lead me to the view that the Annual Report should be regarded as within the scope of the relevant words of s550, as it does not seem to me to answer to description of a book 'kept' by the corporation in the relevant sense of that word."
The first of the paragraphs I have just quoted was cited with approval by Drummond J in The Tubby TroutPty Ltd v Sailbay Pty Ltd (1993) 42 FCR 595 at 600. His Honour had to rule as to the admissibility of a letter received by a corporate respondent in that case from the credit manager of a company that was providing supplies to a restaurant, confirming that it was opening a separate account for the restaurant, and that that respondent would be responsible for that account until a separate licence was granted for the restaurant by a licensing authority. It was argued that the company was obliged by the Corporations Law to keep that letter as a written financial record that correctly recorded and explained its transactions and financial position. Drummond J did not reject the submission that the relevant company was obliged to retain the letter pursuant to a provision of the Corporations Law, but held that the letter did not fall within the scope of s1305 because it was not a document or record that the corporation was required to maintain in a systematic or periodic fashion.
A similar approach was taken by Olsson J, with whom Mohr and Nyland JJ agreed, in Sheahan v Northern Australian Land and Agency Co Ltd (Unreported, Supreme Court of South Australia, Full Court, 6 May 1994). At first instance, Perry J had refused to allow two purported contracts of sale to be tendered pursuant to s1305. After setting out s1305 and the definition of "books", Olsson J said, at par50:
"What is manifestly in contemplation is that class of document which is brought into existence, by or on behalf of a company, and maintained in its custody by virtue of an express obligation to do so imposed by the Corporations Law itself."
However it is not clear from the judgment whether the appellants in that case identified any statutory provision as the source of an obligation to retain the purported contracts, or argued that "kept" included "retained". His Honour's comments, insofar as they related to the scope of the word "kept", may well have been obiter.
It seems that a wide interpretation of the word "kept" was adopted for the first time in Duke Group Ltd v Pilmer (1994) 63 SASR 364. In that case, Mullighan J declined to follow Residues Treatment and Trading Co Ltd v Southern Resources Ltd (supra), and held that the annual report of a company constituted a book "kept" by the company under a requirement of the Companies Code. He did so on the basis that the Code, s274(1), obliged the company to furnish a member of the company, in specified circumstances, with copies of the last of its annual accounts, directors' reports, and auditor's reports. He reasoned that, since a company could not provide such documents without retaining them, there was an implied requirement to keep them, and that that requirement fell within the scope of s1305. It seems no such argument was advanced in Residues Treatment. As to the reasoning for not following Residues Treatment, his Honour said the following at 273:
"With respect, I disagree. There is no reason, in my view, to attribute such a restrictive meaning to the word 'kept'. In its ordinary meaning it includes the narrow meaning given to it by Perry J but it includes the well understood wider meanings of 'keep' of which 'kept' is the past participle, namely 'to have in stock', 'to have the charge or custody of': The Macquarie Dictionary 2nd revision; or 'to guard, defend, protect, preserve, save', 'to take care of, to look after': Shorter English Oxford Dictionary."
In R v Connell (1996) 14 ACLC 32 at 35, White J (of the Supreme Court of Western Australia) followed Perry J in Residues Treatment and Drummond J in Tubby Trout, rejecting the interpretation favoured by Mullighan J in Duke Group. His comments were obiter, since he concluded that the documents in question were kept by the relevant company on either construction of the word "kept". He had held that s1305(2) not only deemed a document to which it applied to be a book and to have been kept by a body corporate, but also deemed its keeping to have been under a requirement of the Corporations Law or a previous law corresponding to a provision of the Corporations Law. He said that the narrow construction of "kept" went "a long way towards overcoming any difficulty which might otherwise be thought to exist as a result of the construction of subs1305(2) which I prefer and to avoiding what Mr Connell has called an 'absurd result'." Mr Connell had argued that a wide interpretation of s1305(2) would lead to the "absurd result that any piece of paper in the possession of a body corporate, whatever its nature, would … be prima facie evidence of its truth". His Honour had rejected that submission, on the basis that s1305(2) dealt only with a document that purported to be a book kept by a body corporate. Having reached that conclusion, it is difficult to understand what difficulty a wide interpretation of "kept" could create.
A very compelling reason for adopting a wide interpretation was advanced by Finkelstein J in Valoutin v Furst (1998) 154 ALR 119. After referring to the competing views expressed in Residues Treatment and Duke Group, his Honour said (at 128 - 129):
"In deciding which of these decisions is to be preferred it must be remembered that since the last century the narrow traditional common law view of the admissibility of business records has been the subject of statutory modification to facilitate the admission of those records in almost every common law jurisdiction. This is because the common law rules were recognised as an inhibition to the proper administration of justice in both the civil and criminal courts. Thus there is no warrant for giving a provision such as s 1305 a narrow construction especially when the admissibility of a document under the section is only on a prima facie basis and will often give way to other conflicting evidence. In my view there is no reason why the word 'kept' should be given the restrictive meaning preferred by Perry J. I agree with Mullighan J that the word should be given its ordinary meaning which includes 'to maintain' and 'to retain'."
In Caratti v R (2000) 22 WAR 527 at 546, Malcolm CJ, with whom Kennedy and Anderson JJ agreed, cited those comments with approval. However what Malcolm CJ said was obiter, since he concluded that the relevant documents were admissible on either construction of the word "kept".
The fact that s1305 and its predecessors involve a departure from the common law is one factor weighing in favour of a narrow interpretation of "kept". It could also be argued that Parliament intended "kept" in s1305 to be understood in the same way as "keep" in s286(1), which imposes the obligation to keep written financial records that correctly record and explain a company's transactions, financial position, and financial performance, and would enable true and fair financial statements to be prepared and audited. However I think that those factors are outweighed by the requirement of the Acts Interpretation Act 1901 (Cth), s15AA, to prefer a construction that would promote the purpose or object underlying the Act to one that would not. Like Malcolm CJ, I agree with the views expressed by Finkelstein J in Valoutin. Further, the wide approach gives the word "kept" its ordinary meaning, as Mullighan J pointed out in Duke Group. For these reasons, I consider that s1305 applies to all books retained in the custody of a corporation under a requirement of the Corporations Act or the Corporations Law, and not just to books that are the subject of a requirement that they be maintained in a systematic fashion.
Effect of s1305(2)
Mr Arendt submitted on behalf of the Crown that, when s1305(2) applies, a document is deemed not only to be a book, and to have been kept by a body corporate, but also to have been kept pursuant to a requirement of the Corporations Act. Defence counsel submitted that s1305(2) goes no further than to deem a document to be a book kept by a body corporate when it purports to be a book kept by a body corporate, ie, that it does not operate to deem a document to have been kept under a requirement of the Corporations Act.
The submissions of defence counsel find support in the judgment of Mullighan J in Duke Group at 373 - 374, where his Honour said the following:
"Mr Gray also contended that the documents are admissible by reason of s1305(2). He argued that the true interpretation of the subsection leads to the conclusion that if the documents purport to be a book kept by the company, they are admissible because they are deemed to be a book kept as mentioned in subsection (1), ie, under a requirement of the Law or the Code. I reject that argument. The deeming provision in subsection (2) is to be read in conjunction with subsection (1). Under the former, there are three criteria: the document under consideration must be a book, it must be kept by a corporation and it must be kept under a requirement of the Law or the Code. Subsection (2) enables the first two of these criteria to be deemed to be proved where the document in question purports to be a book kept by a corporation. For example, it would not be necessary to prove that P97 is the general ledger of Kal Assay kept by that company if it purports to be so. It is unnecessary to have recourse to subsection (2) as it is acknowledged that the management accounts are genuine records of that company and kept by it. The words 'as mentioned in subsection (1)' in subsection (2) cannot be understood to mean that a book is deemed to be kept under a requirement of the Law. If that was so, any document within the definition of a book kept by a company would be deemed to be kept under a requirement of the Law. I think support for this construction may be found by comparison of s1305(2) with its predecessor in the Code, s550(2). Section 550(1) was in similar terms to s1305(1). Section 550(2) provided:
'550(2) A document purporting to be a book kept by a corporation shall, unless the contrary is proved, be deemed to be such a book and to be kept pursuant to a requirement mentioned in sub-section (1).'
The last clause of that subsection has not been included in s1305(2) which lends some support to the contention that there was no legislative intention to include a provision deeming that a book is kept according to a requirement of the Law, particularly as that provision was part of the uniform Companies (South Australia) Code."
White J took the opposite view in Connell. At 34, after quoting the above passage from Duke Group, his Honour said the following:
"With great respect, I do not think that, on its proper construction, subs 1305(2) is to be limited in that way.
That construction requires subs 1305(2) to be read as saying:
'A document purporting to be a book kept by a body corporate shall, unless the contrary is proved, be deemed to be a book kept by the body corporate.'
In that case, it seems the reference to 'kept as mentioned in subsection (1)' would have to be regarded as unnecessary. If, on the contrary, some meaning is to be accorded to those words, it is, I think, significant that the only references in subs 1305(1) to which those words could apply are to a book kept under a requirement of this Law or to a book kept under a requirement of a previous law corresponding to a provision of this Law."
In Caratti at 545 - 546, Malcolm CJ, with whom Kennedy and Anderson JJ agreed, rejected the view expressed by Mullighan J in Duke Group in favour of that expressed by White J in Connell.
Mr Selley submitted that, on the interpretation of s1305(2) contended for by the Crown, any document with writing on it found in the possession of a company would be presumed to be a document or book kept under a requirement of the Act. However that submission overlooks the requirement that the document must purport to be a book kept by a body corporate. There needs to be something on the face of the document to satisfy this requirement before s1305(2) can operate. Thus, for example, a folder full of invoices received by a company, labelled on its spine with the name of the company and the word "invoices", would be a document purporting to be a book kept by a body corporate. On the other hand, to take the fact situation in Sheahan as an example, a document purporting to be a contract of sale, showing on its face no sign of having been retained in the custody of a corporation, would not be a "document purporting to be a book kept by a body corporate".
Mr Selley submitted that the interpretation advanced by the Crown was illogical. I take him to have meant that, whilst there is a logic in presuming something to be what it purports to be unless the contrary is proved, it is illogical to presume, in the absence of evidence to the contrary, that it has a quality that it does not purport to have. That is to say, when a book purports to be a book kept by a body corporate, it is one thing for there to be a rebuttable presumption that that is so, but it is quite another thing for there to be a further rebuttable presumption that its keeping was under a requirement of the Corporations Act. However Parliament no doubt has the power to create legislative presumptions that particular documents have a particular quality that they do not purport to have. Perhaps clear language is needed to create such a presumption, but the language of s1305(2) clearly supports such an interpretation, as White J explained in Connell. Parliament could have said that a document purporting to be a book kept by a body corporate shall, unless the contrary is proved, be deemed to be a book so kept. Instead, it used the words, "shall … be deemed to be a book kept as mentioned in subsection (1)". Those words can only have been intended to mean "shall be deemed to be a book kept by a body corporate under a requirement of this Act", subject to the extended meaning resulting from the transitional provisions I have referred to.
I do not think such an interpretation produces an illogical or absurd result. The purpose of s1305 was to facilitate the tendering of documentary evidence and to overcome the difficulties and injustices referred to by Finkelstein J in Valoutin. If s1305(2) is interpreted as the Crown submits it should be, the section would permit any document that purports to have come from a company's files or records to be tendered as proof of its contents without formal proof unless an objection based on s1305(2) is taken. I see nothing illogical or absurd about that result.
Mr Selley made a submission to the effect that, on the Crown's interpretation of s1305(2), a document purporting to be kept by a company could be found in the possession of some other entity or person, and then tendered under s1305 without any evidence as to whose possession it was found in. It is true that that situation could arise. But I think a Crown prosecutor would then have a duty to disclose the source of the document to the defence, at least if there was any risk that injustice could result from not disclosing its source.
Mr Selley made a submission to the effect that the Crown's interpretation of s1305(2) would leave room for a subjective test as to the purpose for which a document was kept by a corporation, and that Parliament could not have intended such a result. In particular, he submitted that, on the Crown's interpretation, the presumption that a document had been kept under a requirement of the Corporations Act could be rebutted by evidence that it was only kept for reasons unconnected with obedience to the Act, eg, because an employee failed to carry out a direction to take it to the tip. I think the answer to this argument is to be found in the Acts Interpretation Act, s15AA. The purpose of s1305 is to facilitate the tendering of documentary evidence. Accordingly, one should give the words "kept … under a requirement of this Act" a wide interpretation. If the Act requires a document to be kept, and it is kept, I therefore think it should prima facie be regarded as kept under a requirement of the Act, even if no-one meant to keep it, and even if no-one adverted to any requirement of the Act.
For these reasons I agree with the interpretation of s1305(2) adopted by White J in Connell and by Malcolm CJ in Caratti. The subsection operates to deem a document not only to be a book, and to have been kept by a body corporate, but also to have been kept under a requirement of the Corporations Act.
The requirements of s1307
Defence counsel submitted that s1307(1) created a requirement for the keeping of books by a body corporate within the scope of s1305(1). Mr Arendt submitted the opposite on behalf of the Crown. As I have said, any keeping of documents or books relevant to this case occurred prior to the amendment of s1307(1) last year, and I am therefore concerned with its original wording in the Corporations Act, which was identical to its wording in the Corporations Law.
Insofar as s1307(1) prohibited the concealment, mutilation or falsification of documents, it did not impose or imply any requirement that documents be maintained or retained. However it prohibited individuals from destroying "any books affecting or relating to affairs of the company".
Mr Selley submitted that s1307 should be read in the light of s1306, which concerns the manner of keeping a corporation's books. Sometimes the language of a section in an Act will include obvious references to the previous section. This is not such a situation. It is true that both ss1306 and 1307 are concerned with company records, and it is apparent that both sections have been drawn with investigations, prosecutions, and other legal proceedings in mind. But each section operates independently, and there is nothing in the language of either of them to indicate any link with the other. In fact, s1307 is concerned with the conduct of individuals, whereas s1306(3) is concerned with the conduct of corporations. It requires a corporation to "take all reasonable precautions … for guarding against damage to, destruction of or falsification of or in, and for discovery of falsification of or in, any book or part of a book required by this Act to be kept or prepared by the corporation".
All that the old s1307(1) relevantly did was to prohibit individuals from destroying books, subject to a defence under s1307(3) when a defendant proved "that he, she or it acted honestly and that it all circumstances the act or omission constituting the offence should be excused". Significantly, the old s1307 did not expressly or impliedly prohibit a company from giving up possession or control of its books. If no provision in the Corporations Act other than s1307 expressly or impliedly requires a corporation to retain a document, I do not think it can be said that s1307 impliedly requires the corporation to retain that document. There must be many situations in which documents held by a company, and not falling within any of the categories of documents expressly or impliedly required to be retained (eg, accounting records or annual reports) might be wanted by other entities, eg, an overseas parent company, the ASIC, the police, a museum, or an archives authority. The section simply does not prohibit individuals from disposing company records by means that do not involve their destruction. It must follow that it does not impose any implied obligation for documents to be retained or kept.
Conclusion
For these reasons my determination on 18 March 2002 was as follows:
1The Corporations Act 2001, s1305, applies to all books retained in the custody of a body corporate under a requirement of the Corporations Act, as well as to those required under that Act to be maintained in a systematic fashion.
2The Corporations Act, s1305(2), operates to deem a document not only to be a book, and to have been kept by a body corporate, but also to have been kept under a requirement of that Act.
3The prohibition in the Corporations Act, s1307(1) as to the destruction of books affecting or relating to the affairs of a company does not constitute a requirement of the Act as to the keeping of books for the purposes of s1305(1).
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