Paragraph 7
12 Paragraph 7 of the Orders was that:
7. Until further order, each of the Additional Parties be restrained whether by themselves, their servants, agents and employees or otherwise howsoever from disposing of, destroying, amending, altering, parting with possession of, or causing, procuring, assisting or permitting the destruction, amendment, alteration or parting with possession of, all and any books, papers, records, books of account, ledgers, journals, banking records, computer records or other documents of any type whatsoever recording or evidencing any dealings of the Additional Parties with the first to eighth defendants and/or in relation to clients of the first and second defendants or clients' SMSF and any moneys paid or received from them.
13 Adamson's submissions took two forms. First, at the return of the application, his Counsel sought to rely upon written submissions dated 25 February 2013, described as an "outline of argument", which stated simply that "[t]he reasons for the relief sought in Prayer 2 of the Interlocutory Process are articulated at paragraphs 28-31 of the Affidavit of [Adamson]." In that affidavit, Adamson deposed that he had previously offered to provide ASIC with whatever books and records he had in his possession. Further, he deposed that, as a lawyer in practice for more than 12 years, he was aware of the obligation of a party not to destroy documents or records in anticipation of, or in the face of, actual litigation. Neither of those matters gives rise to exceptional circumstances sufficient to justify the exercise of the power under r 39.05.
14 Second, after the hearing, Adamson filed (with leave) further written submissions dated 3 March 2013 which took a more substantive approach. By those later submissions, Adamson contended that the injunction granted in paragraph 7 was in excess of the Court's jurisdiction in ss 1323 and 1324 of the Act and, alternatively, that there was no or insufficient evidence to found any basis for the making of the injunction in paragraph 7.
15 In relation to the first submission, Adamson faces difficulties. Adamson's contention that the Court lacked jurisdiction is effectively an argument that the Orders are affected by an error of law. An application under r 39.05 is not an appeal: Paras at [5] and Dudzinski at [11]. It is not the appropriate means by which to contend that orders of this Court were made in excess of statutory jurisdiction. Even if it were, however, Adamson's submission would fail.
16 Paragraph 7 of the Orders does not state that it was made pursuant to ss 1323 or 1324 of the Act. Rather, it simply restrains certain conduct. In the present case, ASIC contends that Adamson was knowingly concerned in several breaches of the Act and the ASIC Act by some or all of the first to eleventh defendants: see [2] above. The Court possesses a broad injunctive power in matters in which it has jurisdiction pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth). There is no reason to suggest that paragraph 7 does not invoke that broader power.
17 Further, as ASIC submitted, paragraph 7 plainly falls within the Court's power to require a person who has been restrained pursuant to s 1324(1) to do "any act or thing". Adamson's submission that s 1324(1) is not directed at negative covenants or prohibitions is rejected.
18 Finally, Adamson submitted that paragraph 7 of the Orders was obtained in circumstances where ASIC had failed to disclose to the Court that Adamson had already travelled overseas to procure further books and records for ASIC and had invited ASIC to either formally or informally request further books and records which would be provided. Adamson complained that ASIC did not bring that matter to the attention of the Court but, instead, told the Court that "Adamson last travelled to the [British Virgin Islands] four to six weeks ago, and had discussions about Cayco and MOGS", omitting any reference to further matters from Adamson's s 19 examination. Document provision and document destruction are two separate, but related, matters in which ASIC has a concern. Adamson's submissions related to the first. Paragraph 7 of the Orders related to the second. Again, Adamson has failed to demonstrate exceptional circumstances of the kind justifying the exercise of the power under r 39.05.