Domestic violence can be committed boldly, subtlety or surreptitiously and is often insidious: Magistrate
Magistrate Costanzo was faced with the challenge that police had brought an application for a protection order in circumstances where the aggrieved had originally complained to police, but had now reneged, saying that there was no substance to the complaint. His Honour found that it was both necessary and desirable to protect the aggrieved in circumstances where both she and the respondent had lied in evidence, but that the aggrieved had been suborned by the respondent into doing so, with the aim that a protection order was not made against the repsondent.
His Honour dealt with two tests, both new to Queensland following the repeal of the Domestic and Family Violence Protection Act 1989, and its replacement with the Domestic and Family Violence Protection Act 2012. The first test, new to the 2012 Act was that to make a protection order the court had to be satisfied that the order was “necessary or desirable”, whatever that meant. This change had come about due to criticism buy the Australian Law Reform Commission that the test under the 1989 Act that further acts of domestic violence were “likely” was too high a bar.
If an order were made, the court then had to consider what conditions ought to apply, namely those conditions that were “necessary and desirable”.
Necessary or desirable to protect the aggrieved
His Honour stated:
The first thing to observe is that the test is stated in the alternative.
A court may find it desirable to make an order without finding it to be necessary. One example may be where a perpetrator of domestic violence needs to be held accountable.
A court may find it necessary to make an order without finding it to be desirable. One example may be where a court finds it is necessary despite the wishes of an aggrieved who stands opposed to the making of an order.
Secondly, giving these terms their plain English meaning, the following meanings are given to the words ‗necessary‘ and ‗desirable‘ in the Online Oxford English Dictionary:
Necessary: -That is needed.‖;
―Needed to be done, achieved, or present; essential‖;
―Indispensable, vital, essential; requisite. Also with to or for (a person or thing)‖
if required by the
―Of an action: that needs to be done; that is done in order to achieve t
the desired result or effect. if necessary: circumstances‖; and
―That which is indispensable; a necessary thing; an essential or requisite‖.
Desirable: Worthy to be desired; to be wished for‖; and
―That which is desirable; a desirable property or thing‖.
Thirdly, whether the court finds it necessary or finds it desirable, the finding must be made in the context that it is either necessary or desirable that the order be made in order to protect the aggrieved. Logically, this must mean that the necessity or desirability of an order being made must arise or derive from a need to protect the aggrieved with the terms of an order. The necessity or desirability must be predicated upon a finding that there exists a need to protect the aggrieved from domestic violence.
Fourthly, in the absence of authority to the contrary, and on the basis of the authorities I refer to below, I would hold that the need for protection must be a real one, not some mere speculation or fanciful conjecture. Need often arises from risk. The court needs to assess the risk to the aggrieved and assess whether management of the risk is called for.
The risk of further domestic violence and the need for protection must actually exist. There is no stated necessity that the need or the risk be significant or substantial. The need for protection of an aggrieved must be sufficient, however, to make it necessary or desirable to make the order in all the circumstances.
His Honour then decided tocompare all the State and Territory laws on point:
Comparison of State Laws
ACT: Domestic Violence and Protection Orders Act 2008 (ACT)
In the Australian Capital Territory, a protection order can be either a domestic violence order or a personal protection order. Under s 46 the court may make a final protection order if it is satisfied on the balance of probabilities that either:
(1) the respondent has engaged in domestic violence; or
(2) the respondent has engaged in personal violence towards the aggrieved person and may engage in personal violence towards the aggrieved person during the time the order is proposed to operate if the order is not made.
Under s 48 a final order may contain the conditions or prohibitions the Magistrates Court considers necessary or desirable.
Therefore, to make an order, all that is required is that the court be satisfied of one of the two limbs. Then the court is to consider what conditions or prohibitions the Magistrates Court considers necessary or desirable. Logically, it would follow that the conditions and prohibitions would be such as are necessary or desirable in order to manage or minimise the risk found to exist.
NT: Domestic and Family Violence Act 2007 (NT)
In the Northern Territory, before making a domestic violence order (DVO), the issuing authority (the ‗authority‘) must be satisfied, under s 18(1), on the balance of probabilities that there are reasonable grounds for a protected person to fear the commission of domestic violence against the protected person by the defendant. Because of the objective nature of the test in subsection (1), the issuing authority may be satisfied on the balance of probabilities as to the reasonable grounds even if the protected person denies, or does not give evidence about, fearing the commission of domestic violence. Under subsection (2), in addition, if the protected person is a child, the authority may make a DVO if satisfied there are reasonable grounds to fear the child will be exposed to domestic violence committed by or against a person with whom the child is in a domestic relationship.
Under s 19(1), in deciding whether to make a DVO, the issuing authority must consider the safety and protection of the protected person to be of paramount importance. Under subsection (2), in addition, the issuing authority must consider the following:
(a) any family law orders in force in relation to the defendant, or any pending applications for family law orders in relation to the defendant, of which the issuing authority has been informed;
(b) the accommodation needs of the protected person;
(c) the defendant’s criminal record as defined in the Criminal Records (Spent Convictions) Act ;
(d) the defendant’s previous conduct whether in relation to the protected person or someone else;
(e) other matters the authority considers relevant.
[32] Under s 21 a DVO may provide for any of the following:
(a) an order imposing the restraints on the defendant stated in the DVO as the issuing authority considers are necessary or desirable to prevent the commission of domestic violence against the protected person;
(b) an order imposing the obligations on the defendant stated in the DVO as the issuing authority considers are necessary or desirable:
i. to ensure the defendant accepts responsibility for the violence committed against the protected person; and
ii. to encourage the defendant to change his or her behaviour;
(c) other orders the issuing authority considers are just or desirable to make in the circumstances of the particular case.
NSW: Crimes (Domestic and Personal Violence) Act 2007
In New South Wales, an apprehended violence order includes an apprehended domestic violence order and an apprehended personal violence order2.
Under section 16(1) the court may make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear, and in fact fears, any of the following, if it is conduct that, in the opinion of the court, is sufficient to warrant the making of the order:
2 See ss 16(1) (apprehended domestic violence orders), 19(1) (apprehended personal violence orders).
(a) the commission by the other person of a personal violence offence against the person, or
(b) the engagement of the other person in conduct in which the other person either intimidates the person (or a person with whom the person has a domestic relationship), or stalks the person.
Under subsection (2) it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if:
(a) the person is a child, or
(b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or
(c) in the opinion of the court:
(i) the person has been subjected at any time to conduct by the defendant amounting to a personal violence offence, and
(ii) there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and
(iii) the making of the order is necessary in the circumstances to protect the person from further violence.
Under subsection (3) conduct may amount to intimidation of a person even though it does not involve actual or threatened violence to the person, or it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.
South Australia: Intervention Orders (Prevention of Abuse) Act 2009
In South Australia, the court may make an intervention order under s 6 if satisfied, on the balance of probabilities, that it is reasonable to suspect that the defendant will, without intervention, commit a defined3 act of abuse against a person, and that the issuing of the order is appropriate in the circumstances.
Previously, under repealed s 99(3) of the Summary Procedure Act 1921 the courts in South Australia could make a restraining order imposing such restraints on a defendant as were necessary or desirable to prevent the defendant acting in the apprehended manner. In Brunsgard v Daire (1984) 36 SASR 391 Johnson J said at 395 that from a practical point of view the whole exercise of on an application for a restraining order under s 99 of the Justices Act 1921 (SA) was not to mete out punishment for some behaviour but to prevent breaches of the peace. The decision was followed by Legoe J in Quicksilver v Liddy Supreme Court of South Australia Justices Appeal 2747 of 1991, 24 January 1992; BC9200543.
3 See s 8—―Meaning of abuse—domestic and non-domestic‖
Tasmania: Justices Act 1959
In Tasmania under s 106B(1) the court may make an order imposing such restraints upon a person as are necessary or desirable to prevent the person from acting in a manner specified in s 106B(1) namely, if the court is satisfied on the balance of probabilities –
(a) that –
(i) a person has caused personal injury or damage to property; and
(ii) that person is, unless restrained, likely again to cause personal injury or damage to property; or
(b) that –
(i) a person has threatened to cause personal injury or damage to property; and
(ii) that person is, unless restrained, likely to carry out that threat; or
(c) that –
(i) a person has behaved in a provocative or offensive manner;
(ii) the behaviour is such as is likely to lead to a breach of the peace; and
(iii) that person is, unless restrained, likely again to behave in the same or a similar manner; or
(d) that a person has stalked the person for whose benefit the application is made or a third person the stalking of whom has caused the person for whose benefit the application is made to feel apprehension or fear.
Victoria: Family Violence Protection Act 2008
Under s 74, the court may make a ‗family violence intervention order‘ if satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.
Also, the court in Victoria may make a final order whether or not-
(a) some or all of the family violence constituting grounds for making the order occurred outside Victoria, if the affected family member was in Victoria at the time at which the family violence occurred, and 10
(b) the affected family member was outside Victoria at the time at which some or all of the family violence constituting grounds for making the order occurred, if that family violence occurred in Victoria.
In AB v Magistrates’ Court at Heidelberg4 [2011] VSC 61 Mukhtar AsJ relevantly held:
4 In AB v Magistrates’ Court at Heidelberg (above, at [86]) Mukhtar AsJ also addressed the Magistrate‘s role in reaching consent orders and discussed the context in which a Magistrate needs to decide what conditions he or she regards as necessary or desirable in the circumstances:
[86]
… the Magistrate did not commit jurisdictional error in suggesting or proposing a consent order that she would be prepared to make. I reject the submission that the Magistrate entered the fray to the point where she, having stepped into jurisdiction, then stepped back out of it. To tell the parties that she would make a consent order if there were different terms was within power. To suggest what terms would be acceptable is part of the discourse that is necessary to understand the refusal of consent, and how to then advance the matter. Further, s 81(1) permits the Court to include any conditions that it regards as necessary or desirable in the circumstances. That, together with the inquisitorial features of the Act, unquestionably permits the Court to not only decline the consent order but to suggest or encourage orders that would be acceptable before the Court would give its consent. To sit there Sphinx-like, and simply refuse consent without suggesting alternatives adds to problems. As Mr Holt said, are the parties to have their consent rejected and then leave the Court for further discussions to somehow magically discern why it was the Magistrate was concerned, and then to come back with some proposed additional order?
5 Section 78(5) of the Victorian Act provides:
―(5) A court may refuse to make a final order, or an order varying, revoking or extending a final order, to which the parties to the proceeding have consented if the court believes the order may pose a risk to the safety of one of the parties or a child of the affected family member or respondent.‖
I think the statute is investing faith in the Magistrate to form a belief judicially, which is based not on caprice or convenience or personal value, but on some rational grounds. There is a natural inclination to say probative as well but there are bound to be cases where allegations may not be improbable but not manifestly so, and a Magistrate forms a belief conscientiously that ―a risk may be posed‖ as s 78(5)5 says. Perhaps it could be a real and sensible risk. However one poses the test, in my view, a belief can be formed about a risk on the basis of allegations that are yet to be proven, but have to be taken seriously (or not dismissed as frivolous) until they are eventually tested. An element of judgment has to be involved, especially as a child is involved, and so much will depend on the circumstances. To that end, regard must be had to the evidentiary requirements and the inquisitorial flavour of s 65 which states that:
―Subject to this Act, in a proceeding for a family violence intervention order the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary.‖ …
… I think it is right to say that by and large, the legislation looks to the Magistrate to undertake or allow a form of inquisitorial justice. A demonstration of that is s 78(5) itself. Another example is s 81 which permits the Court to include in a family violence intervention order ―any conditions that appear to the Court necessary or desirable in the circumstances‖.
Likewise, s 51(6) of the 2012 Act provides that the court may refuse to make a ‗consent order‘ if the court believes the making of the order may pose a risk to the safety of an aggrieved, any named person, or any child affected by the order. However, no such provision appears in relation to orders which are not ‗consent orders‘, such as after a hearing is held to determine an application, as in the case before me.
Nevertheless, the issue of possible risk to the safety of an aggrieved, a child of the relationship or the respondent is a problematical issue for a court to
consider under the Act of 2012. This is because section 4 of the 2012 Act specifically provides that ―perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change‖.
If a court knows or has good reason to suspect that making an order will or may put the aggrieved at risk of retaliatory domestic violence, or worse, then if no order is made the perpetrator ―wins‖ or, in the terms of the Act, the perpetrator is not held accountable. The aggrieved may still live in fear of the respondent whether an order is made or not made. Retaliation may still occur even if the order is not made. If risk of retaliation were the only major consideration there would be cases where the worse the behaviour by a perpetrator and the worse the impact on the victim the less likely it is a court will make an order. This could not have been the intention of the Parliament.
These are real considerations in this case where, for reasons I will discuss later, the only reasonable inference I can draw from all the evidence and the manner of its delivery is that the Respondent has suborned the Aggrieved. The experience of the courts is that domestic violence can be committed boldly, subtlety or surreptitiously and it is often insidious.
Western Australia: Restraining Orders Act 1997
In Western Australia a court may make a restraining order, which includes a ‗violence restraining order‘ and a ‗misconduct restraining order‘.
The court may make a ‗violence restraining order‘ if satisfied on the balance of probabilities that:
(1) unless restrained, the ‗respondent‘ is likely to either
(a) commit a violent personal offence against the applicant, or
(b) behave in a manner that could reasonably be expected to cause the applicant to fear that the respondent will commit such an offence; and
(2) granting a violence restraining order is appropriate in the circumstances.
Further analysis of State Laws
There are few published cases about the domestic violence laws of the other States.
While the legislation in other States can not affect the jurisdiction of this court, the types of considerations referred to by the various Acts may provide some insight into the types of considerations which may, in appropriate cases, be relevant considerations in the determination of whether it is necessary or desirable for this court to make an order. They certainly do not provide anything approximating an exhaustive list of possible relevant circumstances. Whether they are relevant will depend on the law in Queensland and on the facts and live issues of each case. What weight ought to be given to any such relevant circumstance must also depend on the overall facts and circumstances of each hearing.
The types of considerations referred to by the various Acts may simply provide this court with some inkling about the types of considerations legal minds, and judicial minds, may need to bring to bear on the determination of issues raised under the Queensland Act. However, I have taken great care to look at the context in which each of the other state laws is drafted.
In ‗domestic violence‘ legislation, in some States of Australia the use of the words ―necessary or desirable‖ appears in relation to the conditions or restraints or prohibitions which it is judged are necessary or desirable.
However, in Queensland the court must first assess whether it is necessary or desirable to make an order (at all) to protect the aggrieved. Under s 56(1)(a) of the Act the order could possibly state only the standard (mandatory) condition ―to be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved‖. It must therefore be necessary to identify what the aggrieved needs protection from and why it is necessary or desirable to protect the aggrieved.
As a second step, the order may then include further or ancillary orders which it considers are necessary in the circumstances and desirable in the interests of an aggrieved, of any named person or of a respondent.
Commonwealth Legislation: Corporations Act 2001
There is one statute which is analogous to section 37 of the Act. The Corporations Act 2001, at section 1323, has a comparable provision.
Under s 1323, the Court may make or continue any of the orders listed in subsection (1)(d) thru (k) inclusive (such as orders prohibiting payment or transfer of money, financial products or other property), if—
―(a) an investigation is being carried out in relation to an act or omission by a person, that constitutes or may constitute a contravention of the Corporations Act; or
(b) a prosecution has begun against a person for a contravention of the Corporations Act; or
(c) a civil proceeding has begun against a person under the Corporations Act;
and the Court considers it necessary or desirable to do so for the purpose of protecting the interests of a person (in this section called an aggrieved person) to whom the relevant person referred to in paragraph (a), (b) or (c) is liable, or may be or become liable, to pay money, whether in respect of a debt, by way of damages or compensation or otherwise, or to account for financial products or other property.‖
Orders prohibiting conduct under section 1323 may prohibit the conduct either absolutely or subject to conditions. The same can be said of s 37 of the Domestic and Family Violence Protection Act 2012.
The main purpose for which powers are conferred under section 1323 is to protect the interests of so-called aggrieved persons by preserving the respondent‘s assets pending the outcome of an investigation, prosecution, or proceeding, with the intention that the respondent‘s assets will be available to meet the claims of the aggrieved persons. See Corporate Affairs Commission (NSW) v Walker6 (1987) 11 ACLR 884 at 888, 896; (1987) 5 ACLC 991.
6 The court in this case was considering the Securities Industry Code (NSW) s 147 and the Companies (NSW) Code s 573. 13
The discretionary considerations employed by the courts which have considered section 1323 may be relevant when a magistrates court in Queensland is considering whether to make a protection order where the ‗domestic violence‘ is, for example, coercive, deceptive or unreasonably controlling economic abuse.7 However, the discretionary considerations may also be adapted to other aspects of domestic violence.
It has been stated that a determination of whether it is ―necessary or desirable‖, for the purpose of protecting creditors, shareholders and other claimants, that one or more orders under section 1323 be made or continued, may involve ―a very difficult balancing exercise of private and public rights‖ and the public interest will in appropriate cases outweigh private rights: Corporate Affairs Commission (NSW) v Prime Commodities Pty Ltd 8 (1987) 11 ACLR 584 at 587; (1987) 5 ACLC 787 at 789.
Exercise of that discretion has been held to depend upon the circumstances, including the stage of any investigation, or of civil or criminal litigation, the nature of the alleged liability of the defendant to any aggrieved person, the likelihood of liability being established and the gravity of the situation. For example, see In Corporate Affairs Commission (NSW) v Walker 9 (1987) 11 ACLR 884 at 888; (1987) 5 ACLC 991 in the Supreme Court of NSW, Waddell CJ in Equity held:
7 See s 8(1)(c) (Meaning of domestic violence) and s 12 (Meaning of economic abuse).
8 A decision under s 573(1)(c) of the Companies (NSW) Code.
9 The court in this case was considering the Securities Industry Code (NSW) s 147 and the Companies (NSW) Code s 573.
―What evidence is necessary before an order should be made will depend on the circumstances. In the case of an application made shortly after an investigation has begun, the evidence may be regarded as sufficient if it establishes the general circumstances, the nature of the investigation and the reason why it is thought that there may be some liability on the part of a relevant person.
On a later application, where the question is whether or not orders already made should continue, additional evidence may be thought to be necessary, such as evidence which describes the progress of and the future steps likely to be taken in the investigation. Evidence might be required which goes some distance towards establishing liability or which establishes a prima facie case. In deciding what evidence is required the court might well think it relevant to take into account the detriment which might be caused to potential claimants against a relevant person if an order is refused and to a relevant person if an order is made.
The order made should, of course, go no further than is necessary for the purpose of protecting likely claimants against the relevant person, for instance, sufficient security may be provided for any liability by making an order in respect of part, as opposed to the whole, of the relevant person’s property.‖
The decision in Corporate Affairs Commission (NSW) v Walker was followed and applied in the following three cases.
In Corporate Affairs Commission v ASC Timber Pty Ltd (1992) 10 ACSR 525; (1992) 11 ACLC 141, Cohen J held that the persons to be protected by an
order under s 1323 are those persons to whom the person over whom a receiver has been appointed is liable or may become liable to pay any moneys, whether in respect of a debt, by way of damages or compensation or otherwise, or to account for any securities or other property. That liability or potential liability may extend well beyond the time when one of the grounds for appointment of the receiver ceases to exist.
In the context of domestic violence one could extrapolate that it may be necessary or desirable to make an order in order to protect an aggrieved person even if one of the grounds for finding that domestic violence has been committed by the respondent has ceased to exist. Also, if one reason why it is decided that a risk of future domestic violence is because of ongoing contact, such as in family court proceedings or because of other unresolved relationship issues, the order may need, in appropriate cases, to extend beyond the likely conclusion of those proceedings or resolution.
In Corporate Affairs Commission v Lone Star Exploration NL (No 2) (1988) 50 SASR 24; (1988) 14 ACLR 499 at 506; (1988) 6 ACLC 1108, the Full Court held that when exercising the discretion to make an order under s 573(1) of the Companies (SA) Code, a court is not limited to those facts which are the subject of the activity under s 573(1)(a), (b) or (c), but it can have regard to all the facts and circumstances disclosed to the court. The discretionary powers of the court were able to be invoked without further pre-condition upon proof of one of the activities in para (a), (b) or (c). Then, the question for the court is whether it is necessary or desirable for the purpose of protecting the interests of any person to whom the relevant person is or may be or become liable to pay money or to account for any property. The Full Court added that in some cases it may be appropriate to consider whether the actual or potential liability is connected in some way with a possible contravention of the Code.
In the context of domestic violence one could also extrapolate that it may be necessary or desirable to make an order in order to protect an aggrieved person having regard not only to evidence which establishes that domestic violence has been committed by a respondent, according to the definition of domestic violence, but also by having regard to all the other facts and circumstances disclosed to the court. This may include evidence which is properly before the court but which was not led by or relied upon by the applicant.
I would add that the court can also take into the account reasonable inferences it can draw from the evidence disclosed to the court such as inferences that a respondent has suborned an aggrieved to withdraw her complaint or suborned an aggrieved to commit perjury.
It is also clear that the Full Court was content to make an order not only if the relevant risk is ‗likely‘ but also if it is ‗possible‘.
A further factor may be the gravity of the situation: see Corporate Affairs Commission v Lone Star Exploration NL (No 2) 10(above), ACLR at 510–11.
10 See also Corporate Affairs Commission (SA) v Lone Star Exploration NL (1988) 50 SASR 12; (1988) 13 ACLR 769; (1988) 6 ACLC 792. This is the report of the decision by O’Loughlin J which was the subject of the appeal in Lone Star Exploration NL (No 2) (above). O’Loughlin J‘s decision was upheld. 15
The Full Court held that even if a judge considered he or she could not on the information before the court say that it was ―necessary‖ to make the orders sought, but that on the other hand, the gravity of the situation strongly suggested that it was desirable that a measure of protection be afforded to the aggrieved, then an order could still be made.
In Connell v National Companies & Securities Commission (1989) 2 WAR 121; (1989) 1 ACSR 193 at 204, (1990) 8 ACLC 70, Malcolm CJ followed Walker’s case (above) and further held, at 206, that:
― … the statutory jurisdiction conferred by s 573 is a protective jurisdiction to be exercised by the court on the application of the NCSC for the purpose of protecting the interests of the (aggrieved). Given that one or other of the pre-conditions in paras (a), (b) or (c) of s 573(1) are established and it is shown that an order is necessary or desirable for the relevant purpose, the fact that an interim order was obtained as a result of misconduct, non-disclosure of material facts or a person was prevented from leaving the country by misrepresentation, whether taken separately or in combination would not be likely to outweigh the need for protection, if established. Such facts may well have other implications for the persons concerned. Proceedings instituted without just cause in which no proper attempt is made to establish the grounds on which an order may be made by admissible evidence will be liable to be struck out as an abuse of process of the court.‖
There is also an element of risk assessment and risk management in the judgment the court must make under section 1323. See Australian Securities and Investments Commission (ASIC) v Carey (No 3) (2006) 232 ALR 577; (2006) 57 ACSR 307; (2006) 24 ACLC 581; [2006] FCA 433; where French J at [26], [27], [30], [31], [33] to [35] held:
The circumstances in which the court may make orders under s 1323(1) are wide as indicated by the words ―necessary or desirable … for the purpose of protecting the interests of a person …‖. There is an element of risk assessment and risk management in the judgment the court is called on to make. It follows, and has been accepted, that there is no requirement on the part of ASIC to demonstrate a prima facie case of liability on the part of the relevant person or that the person‘s assets have been or are about to be dissipated — Corporate Affairs Commission v ASC Timber Pty Ltd (1989) 7 ACLC 467 at 476 (Powell J); Australian Securities and Investments Commission v Adler (2001) 38 ACSR 266; [2001] NSWSC 451 at [7] (Santow J). (my underlining)
The nature and duration of orders made under s 1323(1) can be fashioned by the court to reflect its assessment of any risk of dissipation of the assets of a person under investigation. (my underlining)
… For the reasons already canvassed the court, in making orders under s 1323, engages in a risk assessment and management process. The logic of the section assumes that the court will not always have before it evidence of the kind that would be necessary and admissible in proceedings to establish definitively the nature and extent of the assets of the persons under investigation and their liability to aggrieved persons. Nor will it necessarily have before it evidence of the kind that would establish definitively that dissipation of assets has occurred or is likely to occur or that flight is imminent.
The logic of s 1323 requires the court to be able to act on evidence which might not be admissible in civil or criminal proceedings leading to a definitive determination of the rights and liabilities of the parties. Hearsay evidence may therefore be received and acted upon, not as proof of the truth of its content but as evidence of the existence of a risk or possibility that gives rise to the necessity for or desirability of a protective order. … .
Accepting that there is a possibility that penalty proceedings may be taken against one or more of the defendants in this case that does not, in my opinion, render the present application an application for the imposition of a penalty or an application incidental to such proceeding. As already noted, evidence may be relied upon of a hearsay or opinion character in these proceedings which might not be admissible in penalty proceedings. … .
It was submitted for the second defendant that because ASIC seeks an order that the reasonable costs of the receivers and managers whose appointment it seeks should be payable from the collective assets of the defendants, that fact itself gives the present application the character of a penalty proceeding. In my opinion however, the submission is misconceived. An order for the payment of costs out of the collective assets of the defendants would not of itself amount to the imposition of a penalty. Although it may effectively deprive defendants of some of their property that imposition is not by way of punishment for any contravention of the law.
Objection was also taken to the admissibility against the second defendant of transcripts of examinations of other parties conducted under s 19 of the ASIC Act. …, the transcripts of the examinations conducted under s 19 can be relied upon as tending to establish the possibility that circumstances exist which give rise to the necessity or desirability of a protective order. What is in evidence here is the fact that the statement was made in the course of a s 19 examination. The fact that the statement was made, rather like the hearsay evidence referred to earlier, may support an inference that circumstances exist that make a protective order necessary or desirable. It is not necessary to rely upon such evidence for the purpose of establishing the truth of the statement made.‖ (my underlining)
However, it has been held that a court will not find it necessary or desirable to make an order under section 1323 where investors’ funds are not at risk: see Australian Securities and Investments Commission v Arafura Equities Pty Ltd (2005) 56 ACSR 429; [2005] QSC 376. The relevant risk must exist.
I also note that in ASIC v Mauer-Swisse Securities Ltd (2002) 20 ACLC 1,530; [2002] NSWSC 684 it was held that it is within the purposes of protecting the interests of aggrieved persons under s 1323 that a person be prevented from departing Australia to assist ASIC in its investigations into a possibly fraudulent scheme involving Australian investors. If there was evidence of large scale fraud, the fact that only one small claim had been made so far did not detract from ASIC’s case, because the victims may have had little or no information about the extent of the fraud and few resources to recover their losses. Similarly, in the case I have to determine, the fact that no Temporary order was made does not tie my hands. Further circumstances about the respondent‘s conduct have now come to light which I will discuss below.
Other legislation
In Conway v Jerram, Magistrate and NSW State Coroner (2010) 78 NSWLR 371; [2010] NSWSC 371 an order was sought to hold a coroner’s inquest under (NSW) Coroners Act 2009, s 84. Under that section the Supreme Court (NSW) may order an inquest if it appears necessary or desirable in the interests of justice to do so. I take into account the following principles extracted by Barr AJ:
―In my view, this court should not hesitate to order an inquest if, after considering the evidence, it concludes that the interests of justice make it necessary or desirable to do so. In Knight v FP Special Assets Ltd (1992) 174 CLR 178 Gaudron J said At 205—
―It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.‖‖
