Islamic Co-Ordinating Council of Victoria v Chawk [2001] VSC 414

"3. On or before 4.00 p.m. 13 March 2001, each of the defendants are to make, file and swear, to the best of their knowledge, skill and ability, a full and sufficient affidavit describing therein or by an exhibit thereto full details of all facts and matters within their knowledge and belief concerning, (a) the name and address of any bank, building society or other financial institution which there is an account in the name of

3. to which the defendants have a beneficial entitlement; together with the number of such account and the balance therein on the date of service of this order, and on the date of swearing of the affidavit."

9. On 15 March 2001, further Orders were made by his Honour, including an Order that the fifth defendant be joined as a party to the proceedings. During the course of these proceedings, further parties have been joined as parties to the proceedings.

12. By summons dated 9 October 2001, brought against the first defendant and the sixth defendant, the plaintiffs have sought against the first defendant, an order that he swear a further affidavit, identifying by name and account number, the bank and financial institution accounts in his name, in the names of others in which he has had a beneficial entitlement to the moneys in such accounts, including, as I understand the summons, the balance standing in such accounts.

15. The plaintiffs also sought an order in the form of a Mareva Injunction, restraining the first defendant from dealing with or disposing or encumbering property held by him outside Australia and in which it was claimed that he had an interest, or a beneficial entitlement to such property.

18. The affidavit in support of that summons, was sworn by Ibraham Mohamed on 9 October 2001. He deposed that he was the Chairman of the first plaintiff. The first plaintiff, which was formally an incorporated association, is now an incorporated company, incorporated pursuant with the Corporations Act 2001. Mohamed has deposed that in 1995, the predecessor of the first plaintiff purchased premises at 155 Lygon Street, East Brunswick, and used it as an office for its activities and that the first defendant has worked at such premises until 24 August 2001. He has deposed that on 24 August 2001 the first plaintiff "re-entered possession" of the premises, and that it found documents in the premises and read such documents which demonstrated that the affidavit sworn by the first defendant on 13 March 2001 in these proceedings, as to his employment, his income, and his financial circumstances, was lacking and far from complete. It is in reliance on such documents that the plaintiffs seek further orders at this time.

21. During the course of the hearing of this application, counsel for the plaintiffs informed the Court, that at this time, the plaintiffs only sought additional relief against the first defendant. It follows that they were not seeking additional relief against the sixth defendant who was a party to the summons.

24. On 23 October 2001 there was issued a summons on behalf of the first, fifth and sixth defendants, against the plaintiffs, seeking orders that the plaintiffs vacate the premises, deliver up possession of those premises to the fifth defendant, that they be restrained from removing documents or any items from the premises and further that they be restrained from reading such documents. The summons further sought a variation of an Order made in these proceedings on 27 March 2001, which application does not touch directly upon the plaintiffs' summons.

27. The summons of the defendants is returnable before this Court on 30 October 2001. Counsel who appeared on behalf of the first and sixth defendants in answer to the plaintiffs' summons, stated to the Court in substance that it would be desirable if both summonses be heard together. When specifically asked whether he sought an adjournment of the plaintiffs' present summons before the Court, he said that he did not. Accordingly I proceeded to hear the plaintiffs' summons.

30. Affidavits were filed with the Court by the first and sixth defendants. To an extent, these were relied on by the first defendant in the present proceedings. Those affidavits, as I understand it, are also intended to be relied on, by those parties in the proceedings issued by those defendants and returnable on 30 October. In the affidavit of the first defendant he has deposed that the premises at 155 Lygon Street were not registered in the name of the first plaintiff, but that they were registered in the names of persons who comprised the committee of the fifth defendant, who held the premises on trust for the fifth defendant and that the fifth defendant occupied the premises and conducted its business from such premises.

33. The first defendant asserts that the entry into and taking possession of the premises by the plaintiffs was illegal and that such matters were not done by the plaintiffs pursuant to any order in these proceedings. The first defendant has deposed that documents relied on by the plaintiffs on their applications, were documents of, and under the control, of the fifth defendant and himself and were unlawfully obtained by the plaintiffs.

36. One document produced by the plaintiffs in these proceedings, was a letter from a brother of the first defendant to the first defendant dated 25 January 2001. It appears to relate to an account of a business or business in which the first defendant has had and continues to have a beneficial interest. Another document appears to be a computer print-out of a bank account in the name of the first defendant and another. Other documents which have been produced in these proceedings relate to banking accounts and transactions and are dated 1996 and 1997.

39. On behalf of the first defendant, counsel submitted that the Court should not make orders as sought by the plaintiffs as the material relied on by the plaintiffs had been obtained illegally and that, as a matter of public policy, the Court in exercising its discretion, should not permit an applicant before the Court to rely on such material.

42. I am of the view that when regard is had to the exercise of the Court's discretion in such a matter as the present application, it is relevant to determine whether the material on which the Court is asked to exercise its discretion and which is produced by an applicant, has been lawfully or unlawfully obtained by such person.

45. However not withstanding that, counsel for the first defendant informed the Court that the first defendant was prepared to swear an affidavit setting out and identifying bank and other financial institutions, accounts in which he has a beneficial interest and stating the nature and extent of that interest. On the return of the summons on 30 October 2001, it will be able to be determined whether the plaintiffs took possession of the premises unlawfully or otherwise and whether the taking of possession by them of documents or other items, in the premises was lawful or otherwise. But not withstanding that such matter will then be determined, I have regard to that said by counsel for the first defendant as to his preparedness at this time to swear a further affidavit in the proceedings, and I propose to make an Order requiring the first defendant to swear a further affidavit of the nature referred to.

48. The plaintiffs have further sought an extension of the Mareva Injunction to stop the first defendant from dealing with or disposing of assets and property which is outside Australia, identifying, in particular, accounts identified from documents found at the premises by the plaintiff when they took possession of the same.

51. In National Australia Banks Limited v. Dessau [1988] VicRp 58; [1988] V.R. 521, Brooking, J. held that is was within the inherent jurisdiction of this Court to grant a Mareva Injunction in respect of assets out of Victoria, regardless of whether they were ever in Victoria.

54. In the circumstances of this case, I am not prepared to make such an Order at the present time. I am not prepared to do so for until it is determined on the return of the defendants' summons, to be heard on 30 October 2001, whether the plaintiffs came by the documents on which they now rely lawfully or unlawfully. Further, at this time I am not satisfied that it has been established that the first defendant has at present a beneficial interest in such accounts and, if so, the extent of the same. Further, until that is established, I would not be prepared to grant a Mareva Injunction in respect of assets outside Australia which could result in some other person or persons not being able to deal with such accounts for a legitimate business reason. The material before the Court does not permit me to determine that issue at the present.

57. I propose to adjourn the plaintiffs' summons, other than with respect to the Order I propose to make, granting leave for the plaintiffs to bring on for hearing that summons within 24 hours, by giving written notice to the first defendant.

60. Thus, in accordance with such reasons, I make the following orders.

1. that by 4.00 p.m. 29 October 2001, the first defendant is to file and serve an affidavit identifying and describing therein, or by exhibit thereto, full details of all facts and matters within his knowledge and belief as to

(a) the name and address of any bank or other financial institution, wheresoever located, in which there is an account (1) in the name of the first defendant; (2) under the control of the first defendant, whether or not such control is exercised in conjunction with some other person or persons or; (3) to which the first defendant has a beneficial interest. together with the number of such account, and the balance therein, on the date of this order and on the date of swearing that affidavit.

65. I propose to further order, and do order that the summons of the plaintiffs, against the first defendant be otherwise adjourned to a date to be fixed, reserving to the parties liberty to bring on such summons for further hearing on 24 hours written notice.

68. It is further ordered that the plaintiffs' summons against the sixth defendant be dismissed.

74. The plaintiffs, by this summons, have sought by counsel an order for costs against the first defendant. That has been resisted by counsel for the first defendant. In my view, the plaintiffs should have their costs against the first defendant. At no stage did counsel for the first defendant seek to have this summons adjourned; rather he specifically, did not make such an application, with the result that I continued to hear that proceeding.

77. It is ordered that the plaintiffs' costs of the summons filed 9 October 2001 be paid by the first defendant.

83. Counsel on behalf of the sixth defendant, has sought an Order for costs against the plaintiffs for these proceedings as instituted by summons dated 9 October 2001. I am satisfied from what the Court has been told and what has transpired in these proceedings, that at the commencement of the hearing of this proceeding, or shortly thereto, that counsel for the plaintiffs in communication with counsel for the first and sixth defendants, informed him, that, the present proceedings were not pursued against the sixth defendant. I am of the view that that could have been done at a very much earlier time, however, I propose to make no Order for costs of the plaintiffs' proceedings against the sixth defendant.