TSG Corporation Pty Ltd v Islami
[2011] FCA 1545
•5 July 2011
FEDERAL COURT OF AUSTRALIA
TSG Corporation Pty Ltd v Islami [2011] FCA 1545
Citation: TSG Corporation Pty Ltd v Islami [2011] FCA 1545 Parties: TSG CORP PTY LTD (ACN 088 152 523) v DASHMIR ISLAMI, ADVANCED MAXITHERM BOILERS PTY LTD (ACN 142 590 592), ADVANCED BOILERS & COMBUSTION PTY LTD (ACN 119 141 007) and LAURIE ALAN GRIGG File number: WAD 265 of 2011 Judge: GILMOUR J Date of judgment: 5 July 2011 Legislation: Federal Court Rules O 25B, r 2 Date of hearing: 5 July 2011 Place: Perth Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 6 Counsel for the Applicant: Mr P A Tottle Solicitor for the Applicant: Tottle Partners Counsel for the Respondents: No appearance
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 265 of 2011
BETWEEN: TSG CORPORATION PTY LTD (ACN 088 152 523)
ApplicantAND: DASHMIR ISLAMI
First RespondentADVANCED MAXITHERM BOILERS PTY LTD
(ACN 142 590 592)
Second RespondentADVANCED BOILERS & COMBUSTION PTY LTD
(ACN 119 141 007)
Third RespondentLAURIE ALAN GRIGG
Fourth Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
5 JULY 2011
WHERE MADE:
PERTH
PENAL NOTICE
TO: DASHMIR ISLAMI
IF YOU (BEING THE PERSON BOUND BY THESE ORDERS):
1.REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR
2.DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THESE ORDERS AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THESE ORDERS MAY BE SIMILARLY PUNISHED.
TO: DASHMIR ISLAMI
This is a ‘search order’ made against you on Tuesday, 5 July 2011 by Justice Gilmour at a hearing without notice to you after the Court was given the undertakings set out in Schedule B to these orders and after the Court read the affidavits listed in Schedule C to these orders.
THE COURT ORDERS:
INTRODUCTION
1. (a) the application for these orders is made returnable immediately.
(b)the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by no later than 2.00 pm (EST) on Friday 8 July 2011.
2.Subject to the following order, these orders have effect up to and including 14 July 2011 (“the Return Date”). On the Return Date at 10.00 am there will be a further hearing in respect of these orders before Justice Gilmour.
3.You may apply to the Court at any time to vary or discharge these orders; including, if necessary, by telephone to the Judge referred to in the immediately preceding order (phone No. (08) 9268 7100).
4. These orders may be served only between 9:00 am and 2:00 pm on a business day.
5. In these orders:
(a)“applicant” means the person who applied for these orders, and if there is more than one applicant, includes all the applicants.
(b)“independent computer expert” means the person identified as the independent computer expert in the search party referred to in Schedule A to these orders.
(c)“independent solicitor” means the person identified as the independent solicitor in the search party referred to in Schedule A to these orders.
(d) “listed thing” means any thing referred to in Schedule A to these orders.
(e)“premises” means the premises and any of the premises identified in Schedule A to these orders, including any vehicles and vessels that are under the respondents’ control on or about the premises or that are otherwise identified in Schedule A.
(f)“search party” means the persons identified or described as constituting the search party in Schedule A to these orders.
(g)“thing” includes a document.
(h)“you”, where there is more than one of you, includes all of you and includes you if you are a corporation.
(i) any requirement that something be done in your presence means:
(i)in the presence of you or of one of the persons described in order 6 below; or
(ii)if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in order 6 below.
6. These orders must be complied with by you by:
(a) yourself; or
(b) any director, officer, partner, employee or agent of yourself; or
(c) any other person having responsible control of the premises.
7.These orders must be served by, and be executed under the supervision of, the independent solicitor.
ENTRY, SEARCH AND REMOVAL
8.Subject to orders 10 to 20 below, upon service of these orders you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in these orders.
9. Having permitted members of the search party to enter the premises, you must:
(a)permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in these orders are complete;
(b)permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things;
(c)disclose to them the whereabouts of all the listed things in the respondents’ possession, custody or power, whether at the premises or otherwise;
(d)disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out;
(e)do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords;
(f)permit the independent solicitor to remove from the premises into the independent solicitor’s custody:
(i)the listed things or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things; and
(ii)the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and
(g)permit the independent computer expert to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert or the independent solicitor to remove any computer hard drive and computer from the premises as set out in orders 20 and 21 below.
RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL
10.These orders may not be executed at the same time as a search warrant (or similar process) is executed by the police or by a regulatory authority.
11. You are not required to permit anyone to enter the premises until:
(a)the independent solicitor serves you with copies of these orders and any affidavits referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and
(b)you are given an opportunity to read these orders and, if you so request, the independent solicitor explains the terms of these orders to you.
12.Before permitting entry to the premises by anyone other than the independent solicitor, you, for a time (not exceeding two hours from the time of service or such longer period as the independent solicitor may permit):
(a)may seek legal advice;
(b)may ask the Court to vary or discharge these orders;
(c)(provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent solicitor in (if you wish) a sealed envelope or container; and
(d)may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent solicitor in (if you wish) a sealed envelope or container.
13.Subject to order 22 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant’s solicitors, any thing handed to the independent solicitor in accordance with orders 12 (c) and (d) above and the independent solicitor must deliver it to the Court at or prior to the hearing on the Return Date.
14. During any period referred to in order 12 above, you must:
(a)inform and keep the independent solicitor informed of the steps being taken;
(b)permit the independent solicitor to enter the premises but not to start the search;
(c)not disturb or remove any listed things; and
(d)comply with the terms of orders 25 and 26 below.
15.Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent solicitor for safekeeping pending resolution of the dispute or further order of the Court.
16.Before removing any listed things from the premises (other than things referred to in the immediately preceding order), the independent solicitor must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant’s solicitors a copy of the list signed by the independent solicitor.
17.The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent solicitor to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions, or any other person having responsible control of the premises.
18.If the independent solicitor is satisfied that full compliance with the immediately preceding order is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance.
19.The applicant’s solicitors and the independent solicitor must not allow the applicant in person to inspect or have copies of any thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at the premises until 4:30 pm on the Return Date or other time fixed by further order of the Court.
COMPUTERS
20.(a) If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant’s solicitors (“the independent computer expert”).
(b)Any search of a computer must be carried out only by the independent computer expert.
(c)The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises.
(d)The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both.
(e)The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the return date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies.
(f)The independent solicitor must, at or prior to the hearing on the Return Date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter’s report on the parties.
(g)If no independent computer expert has been appointed, but the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent solicitor may remove the computer from the premises for that purpose and cause that purpose to be achieved.
21.(a) This order 21 applies if you are not a corporation and you wish to object to complying with order 20 on the grounds that some or all of the information required to be disclosed may tend to prove that you:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(b)This order 21 applies if you are a corporation and all of the persons who are able to comply with order 20 on your behalf and with whom you have been able to communicate, wish to object to your complying with order 20 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(c) You must:
(i)disclose so much of the information required to be disclosed to which no objection is taken;
(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and
(iii)file and serve on each other party a separate affidavit setting out the basis of the objection.
INSPECTION
22.Prior to the Return Date, you or your solicitor or representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to:
(a)make copies of the same; and
(b)provide the independent solicitor with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant.
PROVISION OF INFORMATION
23. Subject to order 24 below, you must:
(a)at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to:
(i)the location of the listed things;
(ii)the name and address of everyone who has supplied you, or offered to supply you, with any listed thing;
(iii)the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and
(iv)details of the dates and quantities of every such supply and offer.
(b)within 20 working days after being served with these orders, make and serve on the applicant an affidavit setting out the above information.
24.(a) This order 24 applies if you are not a corporation and you wish to object to complying with order 23 on the grounds that some or all of the information required to be disclosed may tend to prove that you:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(b)This order 24 also applies if you are a corporation and all of the persons who are able to comply with order 23 on your behalf and with whom you have been able to communicate, wish to object to your complying with order 23 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(c) You must:
(i)disclose so much of the information required to be disclosed to which no objection is taken;
(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and
(iii)file and serve on each other party a separate affidavit setting out the basis of the objection.
PROHIBITED ACTS
25.Except for the sole purpose of obtaining legal advice, you must not, until 4:30 pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of these orders, or tell any person that a proceeding has been or may be brought against you by the applicant.
26.Until 4:30 pm on the Return Date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of these orders or further order of the Court.
COSTS
27.The costs of this application are reserved to the Judge hearing the application on the Return Date.
SCHEDULE A
Premises
The premises located at 4/64 Broadhurst Avenue, Reservoir, Victoria 3073, including any vehicle or vehicles under the respondent’s control on or about those premises.
Listed Things
Under the heading Listed Things, “Business” means the business known as Advanced Maxitherm Boilers or any business involving the sale of industrial boilers carried on by the second respondent and the third respondent or either of them.
1.The hard drives of any computer or computers, including laptop computers, located at the premises.
2.Any other electronic storage device capable of storing electronic documents in computer readable form such as DVDs, CD-ROMS, USB memory sticks and external hard drives, located at the premises.
3. All documents, whether in electronic or hard copy form, constituting or recording:
(a)email communications of the Business;
(b)financial records including management accounts, budgets and cash flow projections of the Business;
(c)communications with customers or potential customers of the Business including responses to enquiries about the products and services offered by the Business;
(d)quotations issued to customers or potential customers of the Business;
(e)any documents recording any interest held directly or indirectly in the Business by the first respondent.
Search Party
1. The independent solicitor:
A female solicitor employed by Holding Redlich Lawyers of Level 6, 277 William Street, Melbourne, Victoria 3000.
2.The applicant’s solicitor:
Alexander Mossop employed by Tottle Partners of Level 40, 108 St Georges Terrace, Perth, Western Australia 6000.
3. Other members of the search party:
An independent computer expert or experts employed by PPB Advisory of 181 William Street, Melbourne, Victoria 3000.
SCHEDULE B
UNDERTAKINGS GIVEN TO THE COURT
Undertakings given to the Court by the applicant
1.The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the search order.
2.The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of these orders for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
3.The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30 pm on the Return Date.
Undertakings given to the Court by the applicant's solicitor
1.The applicant’s solicitor will pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert.
2.The applicant’s solicitor will provide to the independent solicitor for service on the respondents copies of the following documents:
a.these orders;
b.the application for these orders for hearing on the Return Date;
c.the following material in so far as it was relied on by the applicant at the hearing when the order was made:
i. affidavits (or draft affidavits);
ii. exhibits capable of being copied (other than confidential exhibits);
iii. any written submission; and
iv. any other document that was provided to the Court.
d.a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and
e.the originating process, or, if none was filed, any draft originating process produced to the Court.
3.The applicant's solicitor will answer to the best of his or her ability any question as to whether a particular thing is a listed thing.
4.The applicant’s solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondents.
5.The applicant’s solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of these orders for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
6.The applicant’s solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30 pm on the Return Date.
7.The applicant’s solicitor will not disclose to the applicant any information that the solicitor acquires during or as a result of execution of the search order, without the leave of the Court.
8.The applicant’s solicitor will use best endeavours to follow all directions of the independent solicitor.
Undertakings given to the Court by the independent solicitor
1.The independent solicitor will use his or her best endeavours to serve the respondents with these orders and the other documents referred to in undertaking 2 of the above undertakings by the applicant’s solicitor or solicitors.
2. Before entering the premises, the independent solicitor will:-
a.offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and
b.inform the respondent/s of his, her or their right to take legal advice.
3.Subject to undertaking 4 below, the independent solicitor will retain custody of all things removed from the premises by the independent solicitor pursuant to these orders until delivery to the Court or further order of the Court.
4.At or before the hearing on the Return Date, the independent solicitor will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant's solicitors and to the respondents or the respondents’ solicitors. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert.
5.The independent solicitor will use best endeavours to ensure that members of the search party act in conformity with the order and that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondents, and will give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order.
6.The independent solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of these orders for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
7.The independent solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30 pm on the Return Date.
Undertakings given to the Court by the independent computer expert
1.The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondents.
2.The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of these orders for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
3.The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30 pm on the Return Date.
4.The independent computer expert will use best endeavours to follow all directions of the independent solicitor.
SCHEDULE C
AFFIDAVITS RELIED ON
Name of Deponent Date affidavit
made
1. David Anthony Simmons 4 July 2011
2. Adam Stafford 4 July 2011
3. Eibhlin McCloskey 4 July 2011
4. Jessie Ann Earl 1 July 2011
5. Eibhlin McCloskey 5 July 2011
NAME AND ADDRESS OF APPLICANT'S SOLICITORS
The Applicant’s solicitors are:
Tottle Partners
Level 40, Bankwest Tower
108 St Georges Tce
PERTH WA 6000
Ph: (08) 9217 6700
Fax: (08) 9217 6710
After hours phone: 041 383 1035 or
040 020 6875
PENAL NOTICE
TO:
ADVANCED MAXITHERM BOILERS PTY LTD
(ACN 142 590 592)
ADVANCED BOILERS & COMBUSTION PTY LTD
(ACN 119 141 007)
IF YOU (BEING THE PERSON BOUND BY THESE ORDERS):
1.REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR
2.DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THESE ORDERS AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THESE ORDERS MAY BE SIMILARLY PUNISHED.
TO: ADVANCED MAXITHERM BOILERS PTY LTD
(ACN 142 590 592)
ADVANCED BOILERS & COMBUSTION PTY LTD
(ACN 119 141 007)
This is a ‘search order’ made against you on Tuesday, 5 July 2011 by Justice Gilmour at a hearing without notice to you after the Court was given the undertakings set out in Schedule B to these orders and after the Court read the affidavits listed in Schedule C to these orders.
THE COURT ORDERS:
INTRODUCTION
1.(a) the application for these orders is made returnable immediately.
(b)the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by no later than 2.00 pm (EST) on Friday 8 July 2011.
2.Subject to the following order, these orders have effect up to and including 14 July 2011 (“the Return Date”). On the Return Date at 10.00 am there will be a further hearing in respect of these orders before Justice Gilmour.
3.You may apply to the Court at any time to vary or discharge these orders; including, if necessary, by telephone to the Judge referred to in the immediately preceding order (phone No. (08) 9268 7100).
4. These orders may be served only between 9:00 am and 2:00 pm on a business day.
5. In these orders:
(a)“applicant” means the person who applied for these orders, and if there is more than one applicant, includes all the applicants.
(b)“independent computer expert” means the person identified as the independent computer expert in the search party referred to in Schedule A to these orders.
(c)“independent solicitor” means the person identified as the independent solicitor in the search party referred to in Schedule A to these orders.
(d)“listed thing” means any thing referred to in Schedule A to these orders.
(e)“premises” means the premises and any of the premises identified in Schedule A to these orders, including any vehicles and vessels that are under the respondents’ control on or about the premises or that are otherwise identified in Schedule A.
(f)“search party” means the persons identified or described as constituting the search party in Schedule A to these orders.
(g)“thing” includes a document.
(h)“you”, where there is more than one of you, includes all of you and includes you if you are a corporation.
(i)any requirement that something be done in your presence means:
(i)in the presence of you or of one of the persons described in order 6 below; or
(ii)if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in order 6 below.
6. These orders must be complied with by you by:
(a) yourself; or
(b) any director, officer, partner, employee or agent of yourself; or
(c) any other person having responsible control of the premises.
7.These orders must be served by, and be executed under the supervision of, the independent solicitor.
ENTRY, SEARCH AND REMOVAL
8.Subject to orders 10 to 20 below, upon service of these orders you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in these orders.
9. Having permitted members of the search party to enter the premises, you must:
(a)permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in these orders are complete;
(b)permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things;
(c)disclose to them the whereabouts of all the listed things in the respondents’ possession, custody or power, whether at the premises or otherwise;
(d)disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out;
(e)do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords;
(f)permit the independent solicitor to remove from the premises into the independent solicitor’s custody:
(i)the listed things or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things; and
(ii)the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and
(g)permit the independent computer expert to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert or the independent solicitor to remove any computer hard drive and computer from the premises as set out in orders 20 and 21 below.
RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL
10.These orders may not be executed at the same time as a search warrant (or similar process) is executed by the police or by a regulatory authority.
11. You are not required to permit anyone to enter the premises until:
(a)the independent solicitor serves you with copies of these orders and any affidavits referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and
(b)you are given an opportunity to read these orders and, if you so request, the independent solicitor explains the terms of these orders to you.
12.Before permitting entry to the premises by anyone other than the independent solicitor, you, for a time (not exceeding two hours from the time of service or such longer period as the independent solicitor may permit):
(a)may seek legal advice;
(b)may ask the Court to vary or discharge these orders;
(c)(provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent solicitor in (if you wish) a sealed envelope or container; and
(d)may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent solicitor in (if you wish) a sealed envelope or container.
13.Subject to order 22 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant’s solicitors, any thing handed to the independent solicitor in accordance with orders 12 (c) and (d) above and the independent solicitor must deliver it to the Court at or prior to the hearing on the Return Date.
14. During any period referred to in order 12 above, you must:
(a)inform and keep the independent solicitor informed of the steps being taken;
(b)permit the independent solicitor to enter the premises but not to start the search;
(c)not disturb or remove any listed things; and
(d)comply with the terms of orders 25 and 26 below.
15.Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent solicitor for safekeeping pending resolution of the dispute or further order of the Court.
16.Before removing any listed things from the premises (other than things referred to in the immediately preceding order), the independent solicitor must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant’s solicitors a copy of the list signed by the independent solicitor.
17.The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent solicitor to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions, or any other person having responsible control of the premises.
18.If the independent solicitor is satisfied that full compliance with the immediately preceding order is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance.
19.The applicant’s solicitors and the independent solicitor must not allow the applicant in person to inspect or have copies of any thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at the premises until 4:30 pm on the Return Date or other time fixed by further order of the Court.
COMPUTERS
20.(a) If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant’s solicitors (“the independent computer expert”).
(b)Any search of a computer must be carried out only by the independent computer expert.
(c)The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises.
(d)The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both.
(e)The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the return date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies.
(f)The independent solicitor must, at or prior to the hearing on the Return Date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter’s report on the parties.
(g)If no independent computer expert has been appointed, but the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent solicitor may remove the computer from the premises for that purpose and cause that purpose to be achieved.
21.(a) This order 21 applies if you are not a corporation and you wish to object to complying with order 20 on the grounds that some or all of the information required to be disclosed may tend to prove that you:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(b)This order 21 applies if you are a corporation and all of the persons who are able to comply with order 20 on your behalf and with whom you have been able to communicate, wish to object to your complying with order 20 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(c) You must:
(i)disclose so much of the information required to be disclosed to which no objection is taken;
(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and
(iii)file and serve on each other party a separate affidavit setting out the basis of the objection.
INSPECTION
22.Prior to the Return Date, you or your solicitor or representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to:
(a)make copies of the same; and
(b)provide the independent solicitor with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant.
PROVISION OF INFORMATION
23. Subject to order 24 below, you must:
(a)at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to:
(i)the location of the listed things;
(ii)the name and address of everyone who has supplied you, or offered to supply you, with any listed thing;
(iii)the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and
(iv)details of the dates and quantities of every such supply and offer.
(b)within 20 working days after being served with these orders, make and serve on the applicant an affidavit setting out the above information.
24.(a) This order 24 applies if you are not a corporation and you wish to object to complying with order 23 on the grounds that some or all of the information required to be disclosed may tend to prove that you:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(b)This order 24 also applies if you are a corporation and all of the persons who are able to comply with order 23 on your behalf and with whom you have been able to communicate, wish to object to your complying with order 23 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(c) You must:
(i)disclose so much of the information required to be disclosed to which no objection is taken;
(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and
(iii)file and serve on each other party a separate affidavit setting out the basis of the objection.
PROHIBITED ACTS
25.Except for the sole purpose of obtaining legal advice, you must not, until 4:30 pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of these orders, or tell any person that a proceeding has been or may be brought against you by the applicant.
26.Until 4:30 pm on the Return Date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of these orders or further order of the Court.
COSTS
27.The costs of this application are reserved to the Judge hearing the application on the Return Date.
SCHEDULE A
Premises
The premises located at 28 Treforest Drive, Clayton, Victoria 3168, including any vehicle or vehicles under the respondent’s control on or about those premises.
Listed Things
Under the heading Listed Things, “Business” means the business known as Advanced Maxitherm Boilers or any business involving the sale of industrial boilers carried on by the second respondent and the third respondent or either of them.
1.The hard drives of any computer or computers, including laptop computers, located at the premises.
2.Any other electronic storage device capable of storing electronic documents in computer readable form such as DVDs, CD-ROMS, USB memory sticks and external hard drives, located at the premises.
3.All communications and records of communications, including all email communications, in electronic or hard copy form, in relation to the Business, between the first respondent and the fourth respondent and Mr David Seymour or either of them.
4.All communications and records of communications, including all email communications, between the first respondent or from or to the email address [email protected] and any customer or potential customer of the Business.
5.All communications and records of communications, including all email communications, sent or received from [email protected] or [email protected].
6.All documents, in electronic or hard copy form, recording any financial or ownership interest held, directly or indirectly, by the first respondent in the Business or any financial dealings between the first respondent and the Business, or between the first respondent and the second respondent or third respondent or fourth respondent or any of them in relation to the Business.
Search Party
1. The independent solicitor:
A solicitor employed by Holding Redlich Lawyers of Level 6, 277 William Street, Melbourne, Victoria 3000.
2. The applicant’s solicitor:
Jessie Earl employed by Tottle Partners of Level 40, 108 St Georges Terrace, Perth, Western Australia 6000.
3. Other members of the search party:
An independent computer expert or experts employed by PPB Advisory of 181 William Street, Melbourne, Victoria 3000.
SCHEDULE B
UNDERTAKINGS GIVEN TO THE COURT
Undertakings given to the Court by the applicant
1.The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the search order.
2.The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of these orders for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
3.The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30 pm on the Return Date.
Undertakings given to the Court by the applicant's solicitor
1.The applicant’s solicitor will pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert.
2.The applicant’s solicitor will provide to the independent solicitor for service on the respondents copies of the following documents:
a.these orders;
b.the application for these orders for hearing on the Return Date;
c.the following material in so far as it was relied on by the applicant at the hearing when the order was made:
i. affidavits (or draft affidavits);
ii. exhibits capable of being copied (other than confidential exhibits);
iii. any written submission; and
iv. any other document that was provided to the Court.
d.a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and
e.the originating process, or, if none was filed, any draft originating process produced to the Court.
3.The applicant's solicitor will answer to the best of his or her ability any question as to whether a particular thing is a listed thing.
4.The applicant’s solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondents.
5.The applicant’s solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of these orders for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
6.The applicant’s solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30 pm on the Return Date.
7.The applicant’s solicitor will not disclose to the applicant any information that the solicitor acquires during or as a result of execution of the search order, without the leave of the Court.
8.The applicant’s solicitor will use best endeavours to follow all directions of the independent solicitor.
Undertakings given to the Court by the independent solicitor
1.The independent solicitor will use his or her best endeavours to serve the respondents with these orders and the other documents referred to in undertaking 2 of the above undertakings by the applicant’s solicitor or solicitors.
2.Before entering the premises, the independent solicitor will:-
a.offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and
b.inform the respondent/s of his, her or their right to take legal advice.
3.Subject to undertaking 4 below, the independent solicitor will retain custody of all things removed from the premises by the independent solicitor pursuant to these orders until delivery to the Court or further order of the Court.
4.At or before the hearing on the Return Date, the independent solicitor will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant's solicitors and to the respondents or the respondents’ solicitors. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert.
5.The independent solicitor will use best endeavours to ensure that members of the search party act in conformity with the order and that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondents, and will give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order.
6.The independent solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of these orders for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
7.The independent solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30 pm on the Return Date.
Undertakings given to the Court by the independent computer expert
1.The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondents.
2.The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of these orders for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
3.The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30 pm on the Return Date.
4.The independent computer expert will use best endeavours to follow all directions of the independent solicitor.
SCHEDULE C
AFFIDAVITS RELIED ON
Name of Deponent Date affidavit
made
1. David Anthony Simmons 4 July 2011
2. Adam Stafford 4 July 2011
3. Eibhlin McCloskey 4 July 2011
4. Jessie Ann Earl 1 July 2011
5. Eibhlin McCloskey 5 July 2011
NAME AND ADDRESS OF APPLICANT'S SOLICITORS
The Applicant’s solicitors are:
Tottle Partners
Level 40, Bankwest Tower
108 St Georges Tce
PERTH WA 6000
Ph: (08) 9217 6700
Fax: (08) 9217 6710
After hours phone: 041 383 1035 or
040 020 6875
NOTE:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 265 of 2011
BETWEEN: TSG CORPORATION PTY LTD (ACN 088 152 523)
ApplicantAND: DASHMIR ISLAMI
First RespondentADVANCED MAXITHERM BOILERS PTY LTD
(ACN 142 590 592)
Second RespondentADVANCED BOILERS & COMBUSTION PTY LTD
(ACN 119 141 007)
Third RespondentLAURIE ALAN GRIGG
Fourth Respondent
JUDGE:
GILMOUR J
DATE:
5 JULY 2011
PLACE:
PERTH
REASONS FOR JUDGMENT
I made urgent ex parte orders in this matter on 5 July 2011. Certain issues have arisen in relation to these orders and it is therefore appropriate to provide the parties with published reasons which were expressed orally at the time the orders were made. The following are those reasons edited but not so as to alter their substance.
The applicant by motion seeks urgent ex parte orders pursuant to O 25B, r 2 of the Federal Court Rules. These are in the nature of search orders against the several respondents. I granted leave to the applicant to amend the motion by adding its Schedule C to the two discrete sets of orders. The motion is supported by affidavits of Jessie Ann Earl, sworn 1 July 2012, David Anthony Simmons, Adam Stafford and Eibhlin McCloskey, each sworn 4 July 2011, and a further affidavit of Ms McCloskey sworn 5 July 2011.
The Court should be cautious before making orders of this type which, to a very significant degree, affect the private rights of respondents in respect to their property.
Nonetheless, I have carefully considered the affidavits which, separately and in combination, underpin the detailed allegations set out in the statement of claim. I am in particular satisfied that the written evidence for present purposes establishes a strong prima facie case in respect of each of each of the causes of action pleaded as against the respondents severally. I am also satisfied that there is prima facie cogent evidence of dishonesty on the part of each of the respondents giving rise to an inference that, if these orders are not made, the relevant evidence will, by secretion or destruction, be put beyond the reach of the applicant and this Court. I have also had the benefit of detailed written submissions by counsel for the applicant which accurately and comprehensively, as far as is presently possible, articulate the arguments, which I accept, as to why these orders ought to be made.
Appropriate undertakings by the applicant and a related corporation as to damages have been filed with the Court, as have undertakings in the usual form by the independent solicitors involved. There are also appropriate undertakings by four independent computer experts. I am satisfied that each of the independent solicitors and computer experts are suitably qualified and experienced. I have considered the terms of the orders sought as against the first respondent and as against the second and third respondents and they are, in my view, appropriate in their terms.
I will accordingly make the orders sought in the orders attached to the notice of motion, subject to the amendment I have already made, and will fix the return date as Thursday 14 July 2011 at 10.00 am.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 18 April 2012
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