Parker, R.E. & Ors v Churchill, M.A. & Ors [1986] FCA 90

Federal Court of Australia|1986-03-26|Before: Jackson JJ, Jackson J, Burchett J, Lockhart J

CATCHWORDS Administrative Law - Judicial review - Whether search warrants properly issued - Whether sufficient information on oath to satisfy

justice of matters specified in s.10 of Crimes Act - Whether warrants

properly executed - Seizure of irrelevant material.

Administrative Decisions (Judicial Review) Act 1977 Sales Tax Assessment Act (No. 1) 1930, s.11(1) Taxation Administration Act 1953, s.8C(d)

RALPH EDWARD PARKER AND ORS. v. MARTIN ALAN CHURCHILL AND ORS.

Bowen C.d., Lockhart and Jackson JJ. 26 March (\9S6 Sydney

} ) NEW SOUTH WALES DISTRICT REGISTRY ) G337 of 1985 ) )

ABCONA PTY LIMITED (trading as UTILITY MANUFACTURING (NOWRA)

E.A. PARKER CONSTRUCTION PITY. LIMITED MASOCA PTY. LIMITED trading as ABACIS COLLECTION AGENCY ZANGA PTY. LIMITED

First Respondent BRENDAN CLIFFORD CONDIE Second Respondent

Declare that the first and second respondents in ussuing the warrants referred to inthe further amended application acted

' beyond the powers conferred by s.10 of the Crimes Act 1914 in so

far as the warrants contained paragraph (d) and so much of paragraph (b) as referred to a possible offence by Ralph Edward Parker and Therese Isobel Carson of falsely representing that they

were registered persons under the Sales Tax Assessment Act (No. 1) 1930.

Declare that the said warrants were otherwise valid. Order that the appeal be otherwise dismissed.

Order that the injunction against the Commissioner of Taxation be continued for 21 days from the date this order is pronounced.

Order that the appellants pay to the respondents two-thirds of their costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ) G 337 of 1985 ) )

ON APPEAL FROM A SINGLE JUDGE OF THE : FEDERAL COURT OF AUSTRALIA

BETWEEN : RALPH EDWARD PARKER THERESE ISOBEL CARSON * ABCONA PTY. LIMITED trading as be UTILITY MANUFACTURING (NOWRA)

CHAMAN HOLDINGS PTY. LIMITED DALWORTH PTY. LIMITED l B.A. PARKER CONSTRUCTION PTY. | LIMITED i. MASOCA PTY. LIMITED trading as 1 ABACIS COLLECTION AGENCY ZANGA PTY. LIMITED

, THE COMMISSIONER OF THE wt t AUSTRALIAN FEDERAL POLICE i

CORAM: BOWEN C.J., LOCKHART 'and JACKSON JJ. i DATE > 26 MARCH 1986. I

We have had the benefit of reading the reasons for judgment of Jackson d.. We agree with them in all respects but one, namely, whether the contents of the information before the Justice of the Peace who issued the search warrant afforded reasonable grounds for suspecting that the various companies with which Ralph Edward Parker and Therese Isabel Carson were associated were being used as shams by them so that they (Parker and Carson) were committing the offence of

failing to register for sales tax purposes as manufacturers and/or

wholesale merchants. Jackson J. deals with this matter in his

\ i Paragraph (a) of the warrant describes the possible offence re

"(a). Taxation Administration Act 1953, sub-section 8C(d) together with sub-section 7 11(1) of the Sales Tax Assessment Act (No. 1) 4 1930, in that Ralph Edward Parker and Therese f Isobel Carson did at various times from the { twenty-sixth day of October 1984 until the t present time, fail to register for sales tax t purposes as manufacturers and/or wholesale i [

The warrant incorrectly referred to "sub-section 8C{d)" of i the Tax Administration Act 1953. It should have been a reference to

section 13 of the Sales Tax Assessment Act (No. 1) 1930. We agree

with Jackson J. fdr the reasons he has given that the incorrect

statutory reference in the description of the offence does not of

itself invalidate the warrant. We also agree with him that the

bier dd alee hii Po Bees aes rari Tmt ; . ° : ci oD ' Raa >

description of the possible offence in para. (a) is not appropriate to describe an offence by any of the companies with which Parker and Carson are alleged to be associated; but must be read, as its language requires, as referring to the possible offences committed by Parker and Carson themselves through having failed to register for sales tax purposes.

The point of difference between us is that in our opinion the contents of the information were sufficient to afford reasonable grounds for suspecting that the companies were being used as shams by

Parker and Carson and that they were committing the offence

The relevant contents of the information are set out in the reasons for judgment of Jackson J. so we need not repeat them. So far as presently relevant those contents may be summarised as alleging that between 26 October 1984 (the date of the winding up of Utility Brute Trailers Pty. Limited) and 30 September 1985 (the date of the

Parker and Carson carried on the business of manufacturing

and selling road trailers and related equipment through corporate facades which they controlled and manipulated to : -

mask what were in truth their own business activities;

Parker and Carson should have been, but were not, registered under the relevant sales tax legislation and paid no sales

tel a fete =" > =. plein pte re eee Se Pr ee TE ON nt

The business which they carried on included, so far as was known at the stage of the issue of the warrant:-

(a) the purchase of raw materials for the manufacture of road trailers and related equipment from six manufacturers of goods under quotation of the Sales Tax Certificate of Registration formerly held by Utility Brute Trailers Pty. Limited (In Liquidation), one of the companies controlled by them until it was wound up on 26 October 1984; and

(b) the sale of road trailers and similar or related

equipment to three purchasers on various occasions;

The sales invoices and other documents in respect of the transactions mentioned in 3(b) showed sale prices for the

In our opinion the material thus summarised was sufficient to

We would declare that the search warrants are outside the

fowers conferred by s. 10 of the Crimes Act 1914 insofar as they

ontain para. (d) and so much of para. (b) as refers to the possible

ffence by Parker and Carson of falsely representing that they are

Yegistered persons. The warrants are otherwise valid.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of their Honours the Chief Judge, Sir Nigel Bowen, and Mr Justice Lockhart.

NEW SOUTH WALES DISTRICT REGISTRY ) G337 of 1985 ie GENERAL DIVISION : ) : ib

RALPH EDWARD PARKER THERESE ISOBEL CARSON . ABCONA PTY LIMITED trading as - ~ es UTILITY MANUFACTURING (NOWRA) ANEY HOLDINGS PTY. LIMITED

' BELSIA PTY. LIMITED BENCARRA PTY. LIMITED * BENDOL PTY. LIMITED oo BEZLOM PTY. LIMITED - CHAMAN HOLDINGS PTY. LIMITED te DALWORTH PTY. LIMITED E.A. PARKER CONSTRUCTION PTY. LIMITED MASOCA PTY. LIMITED trading as ABACUS COLLECTION AGENCY ZANGA PTY. LIMITED

i MARTIN ALAN CHURCHILL : : First Respondent BRENDAN CLIFFORD CONDIE Second Respondent .

THE COMMISSIONER OF THE AUSTRALIAN i \ FEDERAL POLICE m

epee age eg ee Sea ees one DA LF OY pt dei he Tee te o. ~ any

On 30th September 1985 the first respondent, a justice of the peace for the State of New South Wales, granted search warrants authorizing the officers of the Australian Federal Police named therein, with such assistance as they thought necessary, to enter the premises named in the warrants, and to seize any of the things named in the warrants, which they might there find. The places named in the warrants were factory premises at Nowra, two dwelling houses at Nowra, dwelling houses at Leppington, Shoalhaven Heads and Warwick Farm, the premises of three banks at Nowra, the premises of two banks at Sydney, solicitors' premises at Nowra and office premises at Nowra.

The warrants were granted by the second respondent in the exercise - or, as the appellants would have it, purported exercise - of the powers conferred by s.10 of the Crimes Act 1914

information on oath that there is reasonable ground for suspecting that there is in any house, vessel, or place -

(a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has

been, or 1s suspected on reasonable grounds to have been, committed; fh

(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to

(c) anything as to which there is reasonable ground for believing that it is intended to be used for the i* purpose of committing any such offence, v.

he may grant a search warrant authorizing any re constable named therein, with such assistance as he ' thinks necessary, to enter at any time any house,

vessel, or place named or described in the warrant,

if necessary by force, and to seize any such thing - - * which he may find in the house, vessel,or place." F

As is apparent from its, terms, s.10 requires that before

granting such a search warrant, a justice be satisfied by information on oath that there is reasonable ground for eo suspecting that there is, in the place in respect of which the search warrant is sought, something which falls within the

description contained in one or more of the paragraphs of the

section. The "information" which in this case led to the first respondent having the requisite satisfaction was provided in : writing by Kenneth Alan Moore, a Senior Investigation Officer of the Sales Tax Branch of the Australian Taxation Office and

Mr Moore ("the informant") swore to the contents of each such

document before the first respondent. It may be noted in passing

that it is clear from the evidence of the first respondent that the material before him at the time when he determined to grant the warrants was, and was only, the matter contained in the

Before the primary:Judge the appellants sought reviews

under the Administrative Decisions (Judicial Review) Act 1977 of

ny - Lt ee, 2 Jane? Linke eal bor a ete eed S Feline ater ene

the decisions made by the first respondent in granting the search L

1 warrants, and of the decisions made by officers of the Australian Federal Police in the execution of those warrants. The primary .

Judge refused the applications but reserved to the appellants L

liberty to apply in respect of particular documents upon seven

Before the Court both aspects of the case remained in issue, and it is convenient at this point to indicate in more ~

detail the nature of the attack made upon the grant of the

warrants on the one hand and upon their execution on the other. .

The grant of the search warrants was attacked on three i

bases. First it was said that in some respects the offences referred to in the warrants were not offences known to law. Next | it was put that the matter contained in the informations was not 1

capable of satisfying the first respondent of the matters of

which he was required to be satisfied pursuant to s.10. Finally,

it was contended that the first respondent applied the wrong test

in determining whether to grant the search warrants.

The lawfulness of the execution of the search warrants was

also put in issue in two ways. First it was contended that the

searches were carried out "indiscriminately", i.e. without regard

to the question of relevance of documents. Second it was

contended that -Eecause the warrants were not validly granted,

either in whole or in part, the items seized (or some of them)

Pete te eo wd Met [Raat etme a nah antennae 1 Cit ta aS

were illegally obtained, and that in consequence an order for

I shall deal with these contentions in the order in which

I have just mentioned them but since so much turns on the

warrants it is helpful to set out their terms . The warrant in

respect of the factory premises (which were situated at Lot 14,

Norfolk Avenue, Nowra) 1s a sufficient example and it was as

Christopher Bentley Australian Federal Police Officers _

a Justice of the Peace, within the meaning of that expression in section 10 of the Crimes Act 1914 of the Commonwealth of Australia, in and for the State of New South Wales, being satisfied by information on oath placed before me this day that

there are reasonable grounds for suspecting that there are at or in the following place:-

Factory premises situated at Lot 14 Norfolk Avenue, Nowra, in the said State, being a metal clad building with a metal roof, having a double storey brick office accommodation with a sign styled ~ "Utility" on the side, attached, including all rooms, safes and . other parts therein, the surrounding grounds and any outbuildings, receptacles and motor vehicles thereon.

Things being trailers, rubber stamps, typewriters, computer software and documents including, but not limited to, originals L

or copies of presented cheques, specimen signature cards, deposit ie slips, applications to open accounts, withdrawal forms, diaries, fe

: diary notes, order forms, signed cheques, unsigned cheques, , invoices, names and addresses of customers, cheque butts,

customer order forms, quotations, sales journals, purchase journals, certificates of conditional exemption and records of receipts and payments and other business records as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences against provisions of the following legislation -

(a) Taxation Administration Act 1953, sub-section 8C(d) together with sub-section 11(1) of Sales Tax Assessment Act (No.1) 1930, in that Ralph Edward Parker and Therese Isobel Carson did at various times from the twenty-sixth

day of October 1984 until thepresent time, fail to register for sales tax purposes_as manufacturers and/or wholesale merchants;

(b) Section 15 of Sales Tax Assessment Act (No.1) 1930, in

various times from the twenty-sixth day of October 1984 until the present time, falsely represent they are registered persons or falsely quoted a certificate;

Parker and Therese Isobel Carson did, at various times from the twenty-sixth day of October 1984 until the

present time, defraud the Commonwealth in relation to the

purchase of raw materials free of sales tax and by failing

(d) Section 231 of the Income Tax Assessment Act in that Ralph

Edward Parker and Therese Isobel Carson did at various

times since 30 June 1978 until the present time evade payment of income tax.

YOU_ARE HEREBY AUTHORISED with such assistance as you may think

necessary to enter at any time the said place, if necessary by force, and seize the aforementioned things being:-

trailers, rubber stamps, typewriters, computer software and documents including, but not limited to, originals or copies of presented cheques, specimen signature cards, deposit slips, applications to open accounts, withdrawal forms, diaries, diary notes, order forms, signed cheques, unsigned cheques, invoices, names and addresses of customers, cheque butts, customer order forms, quotations, sales journals, purchase journals,

certificates of conditional exemption and records of receipts and

payments and other business records as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences against provisions of the legislation named above, being described as:-

(a) Taxation Administration Act 1953, sub-section 8C(d),

that Ralph Edward Parker and Therese Isobel Carson did, at

together with sub-section 11(1) of Sales Tax Assessment Act (No.1) 1930, in that Ralph Edward Parker and Therese Isobel Carson did, at various times from the twenty~sixth day of October 1984 until the present time, fail to register for sales tax purposes as manufacturers and/or wholesale merchants;

(b) Section 15 of Sales Tax Assessment Act (No.1) 1930, in that Ralph Edward Parker and Therese Isobel Carson did, at various times from the twenty~sixth day of October 1984 until the present time, falsely represent they are

t registered persons or falsely quoted a certificate;

(c) Section 29D of the Crimes Act 1914, in that Ralph Edward Parker and Therese Isobel Carson did, at various times from the twenty-sixth day of October 1984 until the

present time, defraud the Commonwealth in relation to the purchase of raw materials free of sales tax and by failing to account for sales tax; and

(d) Section 231 of the Income Tax Assessment Act in that Ralph Edward Parker and Therese Isobel Carson did at various times since 30 June 1978 until the present time evade payment of income tax.

and for so doing this shall be your sufficient Warrant.

GIVEN under my hand and seal at 111 Elizabeth Street, Sydney in the State of New South Wales, this 30th day of September 1985.

: Justice of the Peace in and for " the State of New South Wales , * (M. Churchill) "

As I have said, the decision to grant the search warrants was attacked on three bases and it is necessary to discuss each of those bases in relation to each of paragraphs (a)-(d) in the

Paragraph (a) of each warrant refers to a potential

offence of failing to register for sales tax purposes as'

! manufacturers and/or wholesale merchants. It identifies the te

relevant statutory provisions as being s.8C(d) of the Taxation

Administration Act 1953 and s.11(1) of the Sales Tax Assessment

In dealing with the contention that paragraph (a) does not refer to an offence known to law, it should first be noted that it 1s correct to say that at all material times there has been an .

offence of the nature described in the text of paragraph (a),

1.e. failing to register as a manufacturer or wholesale merchant a ; for the purposes of the Sales Tax Assessment Act (No.1). In this mn regard, until 30 May 1985 s.11(1) of the Sales Tax Assessment Act (No.1) provided that:- .

; "(1) A person who becomes a manufacturer or , wholesale merchant shall, within 28 days after he " becomes a manufacturer or: wholesale merchant, as re the case may be, become registered as prescribed"

"(1) Subject to this section, a person who is a manufacturer or a wholesale merchant, is required to be registered". t

At all times failure to comply with the requirements of s.11(1)

has been an offence by virtue of s.13 of the same Act.

The point which is made, however, is that paragraph (a)

of the warrants does not refer to s.13 but refers instead to -

s.8C(d) of the Taxation Administration Act 1953, which is as

"8C. A person who refuses or fails, when and as required under or pursuant to a taxation law to do so -

(d) to notify the Commissioner or another person of a matter or thing;

to the extent that the person is capable of doing so 1S guilty of an offence."

The obligation to become registered provided for by s.11(1), in both its earlier and its later form, is not in my view an obligation to "notify" the Commissioner in terms of s.8C(d) and I thus regard the reference to s.8C(d) in paragraph (a) of the warrants as incorrect. Further s.8C(d) did not come into force unt1l 14th December 1984 and thus could have no application to so much to the period referred to in paragraph (a)

As the primary Judge observed, a reference in a search warrant to an incorrect section was held not to invalidate a

search warrant in Reg v. Trottier et al, Ex parte McLaughlin et

al (1966) C.C.C. 321, and there seems no particular reason why it should. A search warrant, insofar as it is based on s.10(b) of the Crimes Act authorizes a constable named in it to enter and seize "any such thing", i.e. any thing as to which there are reasonable grounds for believing that it will afford evidence as

to the commission of an offence against a law of the Commonwealth

or of a Territory. The warrant must specify the offence, or

offences, in question (Reg. v Tillett; Ex parte Newton (1969) 14

F.L.R. 101 at 113, Crowley v. Murphy (1981) 52 F.L.R. 123 at 143,

Australian Broadcasting Commission v. Cloran (1984) 4 F.C.R. 151

at 153), but unless it be that the reference to an incorrect

section has the result that the warrant does not specify any

offence, or makes the warrant ambiguous so that it is not

possible to tell what offence is referred to, I think that the le reference to an incorrect section in the description of an . offence does not of itself invalidate a warrant which, as is conceded in the present case, does state in otherwise intelligible terms an offence in relation to which s.10 is

capable of operating. Compare the remarks of Moshansky J. in be

Alder v. Attorney-General of Alberta (1977) 5 W.W.R. 132 at 147. i. I turn then to consider the second basis on which the grant of the warrants, insofar as they relate to the offence

referred to in paragraph (a), was sought to be impugned.

As IT have said the material before the first respondent at

the time of the grant of the warrants consisted entirely of the

material contained in the informations. In the informations the

"1 For several months he has been engaged on enquiries .

concerning the evasion of sales tax, by persons known - as Ralph Edward Parker of 11 Salisbury Drive, Nowra ' and Therese Isobel Carson of 8 Dwyer Road, "Ss Leppington, both of whom are either directors and/or r public officers of the following companies:- i

E A Parker Constructions Pty Ltd Utility Brute Trailers Pty Ltd (in Liquidation)

be Bendol Pty Ltd ' Abcona Pty Ltd T/A Utility Manufacturing (Nowra) 7 Dalworth Pty Ltd . Bencarra Pty Ltd. a Bezlom Pty Ltd ee Masoca Pty Ltd

(a) Failing to register, for sales tax purposes, : as manufacturers and/or wholesale merchants. 1

(b) Purchasing goods, being parts and machinery for the manufacture of taxable goods, from : registered sales taxpayers under the quotation of the sales tax certificate of registration held by Utility Brute Trailers Pty Ltd." *

and, after referring in paragraph 2 to the terms of ss.11(1) and i

15 of the Sales Tax Assessment Act (No.1) 1930 and s.8Y of the

"3 By application dated 18 November 1981, Ralph Edward Parker and Therese Isobel Carson, as directors, sought registration for sales tax purposes of the . entity, Utility Brute Trailers Pty Ltd, asa - manufacturer and wholesale merchant of highway trailers. Certificate of registration, numbered 2 456 453, was issued to this entity on 26 November 1981. By order of the Supreme Court of New South Wales, Equity Division, a winding up order, in relation to Utility Brute Trailers Pty Ltd, was made on 26 October 1984 and Mr D E W Blackwell of A W Butterell Porter and Company, 109 Pitt Street, Sydney, was appointed official liquidator.

4 The informant made enquiries of the official liquidator and was informed that the company has not traded since May 1984, that Ralph Edward Parker has been advised the company cannot trade now that it is in liquidation and further, that no authority has been given by- the liquidator for any other person or entity to act or carry on business on behalf of Utility Brute Trailers Pty Ltd.

5 The informant has established that subsequent to the commencement of his enquiries into the

activities of Utility Brute Trailers Pty Ltd, Ralph Edward Parker personally and through solicitors WR

Goodman and Associates, Suite 3, 50 Berry Street, Nowra and Weiss and Company of Challis House, Martin Place, Sydney and through accountants,

24 Berry Street, Nowra, purchased a number of shelf companies from Australian Formation Services, 3rd Floor, 110 Bathurst Street, Sydney and Company

Advice from representatives of these entities indicates that the names, intended registered offices and intended directors of these shelf companies are as follows:-

Abcona Pty Ltd Suite 3, T/A Utility 50 Berry St Manufacturing Nowra (Nowra)

(By letter, dated 18 February 1985, Clifton Atlee and Associates, notified Company Planners Pty Ltd that the following were to be

appointed as Directors of Chaman Holdings Pty Ltd:-

88 Yurunga Drive 50 Berry Street Nowra Nowra Edwin G Wright 16 Lawrence Hargreave Dr.

Warwick Farm

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (398 paragraphs)

Cited By (1)