1996. The application is brought under section 530C of the Corporations Law, a provision which came into operation in 1992. It appears that sections 530A, 530B and 530C were first introduced into the Corporations Law in 1992. As Young J, of the Supreme Court of NSW, said in Cvitanovic v Kenner & Brown Pty Limited

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION No VG 3257 of 1996 IN THE MATTER OF INCENTIVE DYNAMICS PTY LTD.(In Liquidation) ACN 003 294 700 B E T W E E N ROBERT WILLIAM MORTON as liquidator of INCENTIVE DYNAMICS PTY LTD (In Liquidation) Applicant and JOHN HAIGH ROBINS First Respondent and DOUGLAS ROBERT McNEILL ROBINS Second Respondent and JONATHAN MICHAEL MEISSNER Third Respondent COURT: NORTHROP J DATE: 4 JUNE 1996 PLACE: MELBOURNE REASONS FOR JUDGMENT This is an application brought by Robert William Morton as liquidator of Incentive Dynamics Pty Limited (In Liquidation). The winding up order was made on 15 April 1996. The application is brought under section 530C of the Corporations Law, a provision which came into operation in 1992. It appears that sections 530A, 530B and 530C were first introduced into the Corporations Law in 1992. As Young J, of the Supreme Court of NSW, said in Cvitanovic v Kenner & Brown Pty Limited (1995) 18 ACSR 387, the sections were designed to strengthen the position of liquidators of companies to enforce the obligation of company directors to hand over to the liquidator the books and records of the company. I might add the same observation applies with respect to the other property of the company. Upon a winding up order being made the property of the company comes under the control of the liquidator: section 474 of the Corporations Law. The directors and officers of the company are required to hand over all books and records and property of the company to the custody or control of the liquidator. Sections, 530A, 530B and 530C are designed to strengthen the powers of a liquidator to enforce these provisions. Section 530C is important for present purposes. Subsection 1 provides: "530 C.(1) The Court may issue a warrant under subsection (2) if: (a) a company is being wound up or a provisional liquidator of a company is acting; and (b) on application by the liquidator or provisional liquidator, as the case may be, or by the Commission, the Court is satisfied that a person: (i) has concealed or removed property of the company with the result that the taking of the property into the custody or control of the liquidator or provisional liquidator will be prevented or delayed; or (ii) has concealed, destroyed or removed books of the company or is about to do so."

Subsection 2 provides what may be authorised to be done under the warrant. It provides:- "(2) The warrant may authorise a specified person, with such help as is reasonably necessary: (a) to search for and seize property or books of the company in the possession of the person referred to in subsection (1); and (b) to deliver, as specified in the warrant, property or books seized under it." I do not need to refer to subsection 530C(3) at the moment. It is important to note that this is a jurisdiction conferred on the Court. The Court is exercising a judicial power when an application is brought under this section. Under the provisions of the Federal Court Rules applications under the Corporations Law are brought, in substance, in conformity with the ordinary Rules of Court of the Federal Court. In this case this was done by the issue of an application. The Rules require that an application be served on the respondents. In the present case the application has been issued and has named three respondents, two of whom are directors and the third is a former director and a former secretary of the company in liquidation. They have not been served with the application as required by the Federal Court Rules, the reason being, it is said, that there is a grave danger that if the respondents have knowledge of this application they may well destroy or get rid of the documents and property which are being sought to be recovered. Thus, it was said, there is a need to conceal the existence of the application from them. This is necessary to enable the warrants to be issued and to be effective for the purposes of giving effect to the purpose behind section 530C of the Corporations Law.

It should be noted immediately that the provisions of section 530C are in marked contrast to many other provisions directing that warrants may be issued for various purposes. A warrant is merely an authority to make lawful conduct which otherwise is unlawful. I have in mind warrants for intercepts of telephones and listening devices under the Telecommunications (Interception) Act (1979), the Customs Act 1901 and other Acts. One might also mention section 130 of the Bankruptcy Act 1966. All these Acts provide that the warrant may be issued by an eligible Judge. The Acts contain provisions that a Judge may, by writing, consent to be declared to be an eligible Judge. The purpose of these provisions is based on the fact that when exercising the power to issue a warrant under those Acts, the Judge is not acting in a judicial capacity. He or she is not acting as a Judge. He or she is not exercising a judicial power. He or she is acting solely as a designated person to do an administrative act. These Acts were all amended to give protection to such a person of a kind similar to Judges while exercising a judicial power. In those cases the procedure to obtain a warrant is not by way of application to the Court, but by way of an ex parte application to a Judge in chambers, supported by affidavit, or in appropriate cases oral evidence. No application is issued by the Court. Any warrant so issued may be challenged by way of judicial review under the Administrative Decisions (Judicial Review) Act 1977. The Corporations Law, for some reason or other, has departed completely from this type of procedure. It has purported to confer a judicial power on the Court. Section 530C states that the Court may issue a warrant, not a Judge of the Court. Normally one would expect the normal procedures to be followed. But having regard to the unusual feature of warrants, there is much to be said of the view, and I accept, that the application for the warrants may be made ex parte. This is a matter that should be referred to the appropriate authorities to determine whether there should be an amendment made to section 530C to bring it in line with the other provisions I have mentioned. Further, there is a question whether the existing provision confers a judicial power on the Court. Presumably any order by the Court to issue a warrant would be subject to an appeal to a Full Court of the Federal Court. An amendment to the Corporations Law would remove many of the problems which are apparent when the matter comes before the Court in the normal way. The Court sits in public. The Court is open to the public. The mere fact of the application being issued in the Registry allows any person the opportunity to inspect the documents. The need for the confidentiality is lost immediately. During the course of submissions I referred to what was said by Young J, in the case of Cvitanovic already mentioned. There his Honour, with respect, seems to have misunderstood the provisions of section 130 of the Bankruptcy Act. That section confers the power to issue warrants on a eligible Judge; see section 129A. In addition section 130 contains many more details regarding warrants than does section 530C of the Corporations Law. Further his Honour appears, with respect, to have placed too much emphasis on the provisions of the State legislation dealing with search warrants. He referred to the Search Warrants Act 1985 (NSW) which, by section 24, appears to impose conditions similar to conditions applicable in an Anton Pillar order. His Honour imposed similar conditions with respect to a liquidator seeking a warrant under section 530C of the Corporations Law. Reference may be made to section 10 of the Crimes Act 1914 (Cth) which does not impose similar conditions. Compare subsection 10(1A) of the Crimes Act with subsection 530C(3) of the Corporations Law. Having regard to the provisions of section 530C of the Corporations Law and the fact that subsection 530C(3) confers power on the persons specified in the warrant to do certain things, conditions do not need to be included in the warrant itself. The warrant authorises the searching for and seizure of things in the possession of a person not at specified premises: see subsection 530C(2). Subsection 530C(3) empowers a person to enter premises. It provides:- "(3) In order to seize property or books under the warrant, the specified person may break open a building, room or receptacle where the property is or the books are, or where the person reasonably believes the property or books to be." The warrants sought are in the form set out in subsection 530C (1). Subsection (2) then takes over and confers specified powers on the person executing the warrants. This provision may be sufficient to make the power conferred by subsection 530C (1) a judicial power. This matter may be of importance because I was referred to a search warrant issued and signed by a Judge of this Court in matter VG3402 of 1995 which, on its face, appears to be in conformity with subsection 530C (1). None of the restrictive provisions referred to by Young J, in Cvitanovic are contained in the search warrant issued by the Federal Court in the matter just referred to. In these circumstances, and having regard to what I have said, I propose to adopt the same form of search warrant, as previously issued by a Judge of this Court, but there will be at least one variation. I turn then to consider whether the Court is satisfied, in conformity with subsection 530C (1) of the Corporations Law, that the respondents and each of them have concealed or removed property of the company with the result that the taking of the property of the company into the custody or control of the liquidator has been prevented or delayed. I consider also whether the respondents have concealed, destroyed or removed books of the company or are about to do so. There is much evidence before the Court and from what has been said by counsel moving for the issue of the warrants, there is ample evidence to support a finding that the Court should be satisfied. Notices had been served on the named respondents to produce the various documents and books and property. These were not complied with. There is evidence to show that some property at least, motor cars, the property of the company, have not been handed over to the liquidator. There is evidence to the effect that much of the documentation of the company's affairs are in electronic computer form and none of these have been handed over to the liquidator. On all the material, the Court is satisfied that the requirements of subsection 530C (1) have been established and that this is a case where warrants should be issued with respect to each of the respondents. As I said before, the warrants issued previously in this Court had been signed by the Judge issuing them. In my opinion that is not appropriate. This is an order of the Court. The normal procedure should be followed for the making of a Court order. The Court order is then entered. The form of the warrants are set out in the schedules to the Order. The warrants are then issued and stamped with the stamp of the Court. The warrants can be executed as an order of the Court. That is what section 530C provides. The Court may issue a warrant, not a Judge, it is the Court. Orders made accordingly. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Northrop. Associate: Date: Counsel for the Applicant Mr T J McLean Solicitors for the Applicant Abbott, Stillman & Wilson