CxTC Fractice and procedure - appli provide security for anv jiuda rending procesdindgs ~ evidence consequences of thowohr + of Federal Court - jurisdiction 7 make would amount to eantideraticns - resnondent to incriminate available to applicant. STFELING INDUSTRIES LIMITED v. such whether making of HOE DS eation for a ment vudament = rs an of Australia NIM SEPVWICES a?rey LIMITED and Ma, G29l oF 1924 NFW SOUTH WALES DISTPICT FEGISTRY No. G221l 7f 19284 SENEPAL DIVISTON BETWEEN : STEFLING INDUSTFIES LIMITED at] a) [ WIM SERVICES PTY LIMITED and OFF Fesronierts COPAM: SHEPPARD J. Ap] fled CE: SYDNEY a] a iS 23 APRIL 19°86 MINUTES OF ARDEF THE COuveET OfDEFS THAT. Ll. trder that the fecend Respondent pravide securit- in the sum of 323,990,000 1n such manner and feorm as the partiss mav aaree or, in default of aqreem iD =) or t+ Za a rm ts) c La) + or its Pesistrar may approve. uJ i iD er rw) =i o) ca is) rs compliance with Order number 1 shall be net later than 2.39 p.m. on Friday, 2 May 1986, 7 The security provided in compliance with Order number 1 herecf is not te be released except bv the consent of the parties or the further order of the Court. 1. Order that the First. Second and Fourth Fesponients cay the Applicant's costs of and incidental to the substitute. notice of motion filed on 14 April 1986. Liberty to the Applicant to apply to a dJudae of the Court on 3 davs notice for an erder that such costs be assessed in the sum of $35,950. The costs of the motion of 10 April 1986 are reserved. Bal Stand over the Application for the appointment of a Peceiver in respect of the Eighth Respondent with liberty to the Applicant to restore on 24 hours' notice to the Eighth and Ninth Respondents. 6. Stand over the Application for the appointment cf a Receiver in respect of the Eleventh Respondent with liberty to restore on 24 hours' notice to the Second and Fourth Respondents and the Solicitors on the record for the Tenth Respendenc. 7. Stand over the Application for the appointment of a Receiver in respect of the First Respondent with liberty to the Applicant fo restore on 24 hour's notice te the Second Fespondent and the Solicitors on the record for the Tenth Fespondent. 8. In the event that Order 1 be not complied with. order the Second Respondent to file and serve on the Applicant's Solicitors at or before 10.00 a.m. on 9 May 1986 an affidavit deposing to his present assets and liabilities. whether such assets are owned bv himselt alone or jointly with any company trust or individual, and whether such liabilities are his alone or for which he is jointly and severally liable. This order is made without prejudice to or effect on the Applicant's right to take such proceedinas for the enforcement of Order 1 as it may be advised. &. Q, 10, 11. Order that until further order the Second Respondent by himself. his servants or agents be restrained from spending, giving away, encumbering or otherwise dealing with so much of the sum of §4,300,000.00 as was on or about 21 February 1986 held in safety deposit boxes numbered 926, 1442 and 1443 at the Westpac Banking Corporation's branch at 260 Queen Street, Brisbane, as now remains in his possession, custady or power, except im so far as he does so for the purpose of providing the security ordered to be provided pursuant to Order 1. Order that until further order the Second Respondent hy himself, his servants and agents be restrained from spendira or giving away, or mortgaging, encumbering or otherwise dealing with any assets acquired with, any part of the sum of $4,300.000.00 as was on or about 21 February 1986 held in safety deposit boxes mumbered 936, 1442 and 144? at the branch of the Westpac Bankinag Corporation, 260 Queen Street, Brisbane except in so far as he does sa for the purpose of providing the security ordered to he provided pursuant to Qrder 1. Direct that service of these Orders and any notice given pursuant to leave granted under Orders 5, 6 and 7 hereof upon the Ssctond and Fourth Respondents effected by telex, or telegram cr facsimile document transmission to Gillshannen & Luton, Solicitors of Brisbane and Norton Smith 4& Co., solicitors of Svdnev. be deemed sufficient service on those Respondents of those orders and such notice for the purpceses of Order 37 of the Fules. Such service shall he deemed to 4. have been effected 724 hours after suck telex. telearam or facsimile document is despatched. 12. Direct that service of these Orders and any notice given pursuant to leave granted under Order S hereof be effected on the Eiahth and Ninth Respondents by telegram to those Respondents at the property "Mooraboal", Tocacclawah, Queensland. and by telegram, telex or facsimile document transmission toa Norton Smith & Co., Solicitors of Svdrev. 12. Motion for dissolution of injunctions granted against the Eighth and Ninth Respendents be dismissed with costs. 14. Liberty to all parties tc apply on 24 hours' notice. NOTE: Settlement and entrv of orders is dealt with in Order 36 of the Federal Court Rules. TW THR FEDEPAL COURT OF ATISTFALTIA NEW SOUTH WALES DISTRICT REGISTRY No. GIRL of 19°94 GENFRAL DIVISTOAN ' RETWEEN : STEPLING INDUSTRIES LIMITED Applicant BND NIM SEPVICES PTY LIMITED and OFS. CORAM: SHEPFARD 7. DATE : OF APRIL 1986 FESSONS FOt IIDGMENT HLS RONDE Ta be dealt with are a number cf arclitatii7s made bre netices of motion Most of the applications are collected in A document entitled "Substituted Notice of Metion" which was $2,909,000 as security for the payment cf any judement and/cr easts which may be ordered to he paid by them or anv one of them in these proceedings. b> The second respondent, John William Jackson, ray into court the sum of $3,000,000. that order beina sought alternatively to the first. 3. A receiver be appointed over the assets and undertaking of the eighth respondent, Edith Pastoral Company Pty Limited. 4. A declaration he made in terms of paragraph 4 of the substituted notice of motion. This part of the application was not proceeded with, but it concerned a transaction entered into by the ninth respondent, Mrs. E.M. Jackson. That was the reason for her joinder. 5. The company, Edith Pastoral Company Pty Limited, and its assets be preserved pending determination of the application and the payment of any judgment which may be recovered by the applicant against the first. second and fourth respondents. In a separate notice of motion the applicant also seeks an order for the appointment of a receiver over the assets and undertakina of another company, Jackson Holdings Pty Limited, which has been 10ined as an eleventh respondent in the principal application. In the course of the réasons which I am about to read it will he necessary for me to express views about the evidence, about witnesses and about parties. Some of these views will be axpressed tentatively; others will take the form of actual findings. Because of other proceedings which are pending. incluldin~ criminal proceedings involving Mr. Jackson, it ought to be understood that I have made only such findings as are necessary for the disposal of the motions now before me and that no finding that I make will have relevance in other proceedinas where the parties are not the same. where a different standard of proof applies and where different issues are involved. Normally it would be undesirable tc proceed to determine a matter of this kind in advance of the determination of criminal proceedings, but the urqency of the matter is such that the course has t72 he adopted of disposina of these motions now. In order to do so it is necessarv that findings be made. The principal contest between the parties in the present applications concerns so much of them as seeks an order for the provision of security or the payment into court of the sum of $3,000,000. In the result, as I understand the application. the oarder is sought against Mr. Jackson alone and not aqainst the first or fourth respondents. Tniyunctions were earlier granted against the eighth and ninth respondents restrainina them from dealing with assets. Those injunctions have been continued. Thus the applicant did not need to lv for orders to this ry ae] ® effect. but senior counsel for those respondents has applied to have those injunctions dissclved. Thus the question as ta whether it is appropriate that thev continue arises for decision. There is no question but that to arant the principal relief which the applicant seeks would represent a further extension in the short history and development of Marev injunctions, a history which began in En 'Q ray wfay vfm ire) SI wi ma 0Ea lay D <4 ny Compania 4. Naviera SA ov. International Bulkcarriers SA, noted in £1980] 1 All E.R. 713. An anitial question concerns the prospects of success the applicant has in the principal application it makes which is for an order that the first to fourth respondents or alternativelv the fifth to seventh respondents or all such respondents be adjudged liable to pay to the applicant damages in the sum of approximately $3,000,000. The causes of action relied upon are based on s. 52 of the Trade Practices Act 1974 and also comprise A number ef attach Oi) d causes of action, including an action for fraud against the first, second. third and fourth respondents. The principal action is fixed for hearing next Mondav, 28 April. If it is defended, it will occupy approximately three weeks in hearing time. There will na doubt be an interval after the conclusior of the hearing before judgment is delivered. I should add that T am net the jJudge assigned to hear the principal application. The causes of action, which the applicant claims to have, arise out of the sale to the applicant by the first respondent, NIM Servic s Pty Limited. of two taverns, cne in Sydney and one in Newcastle, for prices which totalled $2,850,000. The fifth respondent carried on business as a real estate agent under the name Marden and Associates. The sixth and seventh respondents are alleaqsi to have been at all material times directors of the fifth respondent. NIM Services Fry Limited retained Marden and 5. Associates as its aqgent for the purpose of the sale of the taverns. The second and fourth respondents, that is to say Mr. and Mrs. Jackson. have been at all material times directors of the first respondent, and the third respondent, Mr. Kaden, was at all material times an emplovee of Mr. and Mrs. Jackson, or at least that is the alleaation. The essence of the applicant's case is that it was misled as to the profitability of the two taverns because it relied upon bankinas made to the credit of the vendor's account when it was carrving on the businesses. It is claimed that the bankinags were not the actual takings and that substantial additions to them from sources other than the businesses had been made so that instead of the picture being one of substantial qross profit, it was one of loss or, for some periods, one of very small profits. No real issue about these facts apparently arises. There is no question that the bankings were, as the applicant savs, inflated by the addition of cash monevs from scurces other than the takings from the businesses. The case which the applicant makes is that in those ceircumstanrzes 1t oudght to be inferred that the first respondent and those acting for it, namely the second. third and fourth respondents, intended a purchaser such as the applicant, to think that the bankinags were the takings. In the absence of any statement to the contrary, this is what such a purchaser would be le Ou to believe. If these facts be established, 1t would seem ta fe, me, that, to say the least. the applicant has good prospects of success in its claim. Havina considered the whole of the evidence which there is on the question and also the submissions of counsel which did not include anv submissions on this part of the case, I have no hesitatior in saving that the applicant has establishec. on the material which is before me, that it has aood prospects of obtaining a judament against the first and second respondents and. possitly the third and fourth respondents as well, in a sum of approximately $3,000,000, the damages figure being based upon the prices at which the applicant subsequently sold the two taverns. I do not develop my reasons for these conclusions further berause it is unnecessary to da so, sarticularly in the absence cf submissions from counsel for the respondents about them. In any event, to do sc may have some prejudicial effect, or may be thought to have some prejudicial effect. in relation to the principal proceedings which are to commence on Monday next. The next evidentiary matter to be referred to is evidence which there is that the Jackson interests, particularly Mr. in Jackson, feared that the first two respendents, that is 'tc say, the vender and himself. and possibly others, would be likely to be adjudged liable to pay a very large sum of money. He sought advice from solicitors and accountants. Documents produced from the accountants' file show that Mr. Jackson soucht advice about these matters in July 1985 or perhaps a little earlier. I do not need to refer to the detail of the documentation which there is, but it establishes that after the advice was aiven, there beqan a wholesale divestiture of assets owned up to that time by the first respondent and Mr. and Mrs. Jackson. The progress and extent of this can be seen froma summarv of the transactions about which there is evidence, which summarv is exhibit V. A copy of exhibit V is attached to these reasons. The effect of this evidence is that, by 12 November 1985, when certain undertakings were qaiven this Court (Evatt J.) bv counsel on behalf of the Jackson interests that thev would not dispose of their assets until the hearing of the principal application was concluded, the divestiture was still continuing, but had toa large degree apparently been accomplished. The undertaking was Given as one of the conditions imposed upon the grant of an adiournment of the principal hearing of the proceedings for contempt proceedings. The adjournment was so so ght on the around of Mr. Jackson's ill health, he beine said to be sufferine from glandular fever. The applicant alleges that the evidence discloses that the first and second respondents. and perhaps others, are in clear breach of these undertakinas, and has instituted proceedings to have such respondents dealt with for contempt of court. Those proceedings have been deferred for the time being and I say no more about them. By February 1986, as the summary shows, the only assets remaining were motor cars said to be worth §140,000. Even these were intended tc be dealt with. but, so far as the evidence discloses, that had mot occurred, at least bv the end of Februarv. The next matter to be referred to concerns certain activities of Mr. Jackson in relation tao a sum of $4.3 million in cash. It 1¢ common cround that the principal sum making up this monev consisted of borrowings from two finance companies. A.G.C. (Advances) Limited and National Westminster Finance Australia Limited. The monev was borrowed in or about the month of November 1985, and was for a time deposited with a merchant bank, then known as Wardlevs Australia Group. but later to chande its name ta the Hona Kona Bank of Australia Limited. The monev was deposited ain the names of twe companies controlied by Mr. Jackson. The company borrowing the monev was Jackson Haldinas Limited which, bv the time of the loan transactions. had replaced the first respondent as trustee of the Jackson Familv Trust. Eventually. on 21 February 1986, Mr. Jackson arranged for the money to be delivered to him in cash. A firm, Armacuard, which is a trading name far Mayne Nickless Limited, delivered the monev m from the Reserve Bank to one of the Brisbane branches of Westpac Banking Corporation. In the presence of Mr. Rogers of Armaquard and of Mr. Jackson the monev was placed in three safe depesit boxes at the bank. one of which Mr. and Mrs. Jackson had had for some time. The remaining two were newlv acquired. Thev were in Mr. Jackson's name. Accordina to Mr. Rogers, whose evidence I accept, there was nothina else in anv of the boxes when the monev was placed in them. From records kept bv the bank it is established that each of the boxes was subsequentlv opened. Upon the basis of statements made bv Mr. Jackson to the police. I find that on these various occasions there was removed from the boxes the entiretv of the monevs which had been deposited therein. These were taken bv Mr. Jackson to his home. Qn 17 March 1986 Mr. Jackson made a complaint to the Brisbane Police. He claimed to have been defrauded in three transactions in which he had paid over a total of $4.35 million in cash t is) a fu a Mr, Carl Jorgensen in exchange for stones which Mr. Jo "s aen mn ean claimed ta be diamonds but which were in fact cubic zirconia, havineo a value of no more thar about $2,000. On the basis of Mr. Jackson's statements I find: 1. He himself was not an expert in diamonds. 2. He was. however. a businessman of considerable experience who claimed to have. or to control. assets with a net werth exceeding ¢11 million. 2. He + ook no steps to have anv of the stones handed *o him bv Mr. dorqensen valued or checked by anv person experienced in identifvina diamonds, either at the time each transaction took place or subsequentlv. until each of the transactions was complete and the entirety of the ¢4,35 million had been paid over. 10. 4. A period of about a dav separated each transaction. No steps were taken to have the stones received after the first or second transactions identified as diamonds before anv subsequent transaction took place. wi No record of the transactions was kept or made bv Mr. Jackson er anv person on his behalf: no receipt for the monev was obtained; no diarv entrv was kept. There 1s even todav no book entrv recording them, nor is there any record of Mr. Joraensen's address, Those being the facts of the transaction which Mr. Jacxson alleqes took place. one has to say that it seems a somewhat improbable one. Not onlv is that so because it would involve a man of Mr. Jackson's business experience in partina with a verv large sum af monev without anv abilitv to check the qenuineness of what he was receiving. It 1s also askina a little too much to believe that a confidence man as wilv as Mr. Joraensen must have been. assuming he exists, would return not once but twice to the scene of his first crime once he had received a sum in excess of $1 million for valueless stones, as Mr. Jackson alleaes he did on the first occasion. It seems unlikely that he would have risked iy cor i)Fe] possible arrest by returning for vet another attempt foo further money. He could hardlv have believed that Mr. Jackson would not have had the first consianment of stones examined bv an expert in between the time of the first and second visits. Mr. dackson's storv must have impressed the police officers 11. who interviewed him fin = much this wav. They beqan an investigation into the matter. As a result of the publicitv that ensued an extraordinarv coincidence took place. It is common around that the Jacksons travelled ta Hona Kong at the end of February 1986 bv Cathay Pacific Airlines. Another passender on the aircraft, who has aqiven evidence, noticed them in the check-in queue and in the aircraft. He noticed them particularly because. according to him. Mr. Jackson pushed in to the top of the queue. Later the witness saw Mr. Jackson in a ieweller's shop in the Haiphong Road in Hona Kona. Travs of cubic zirconia were in the window. The witness and his wife visited the shop twice within a short period. When thev returned to make their second visit, an assistant was revlacing a trav of cubic zirconia in the window. Information received through Interpol confirmed purchase ¢f cubic zirconia by a man of similar description to Mr. Jackson But mamed Burton. The purchase was made on 28 Februarv 1986 and 1 March 1986 from a ieweller's shop in the Haiphona Road, Hona Kono. Deliverv was taken on 3 March. In evidence are two statements bv Mr. Jackson to the police and the rertord of a lenathy interview of him bv the police recorded an tape. Mr. Jacksorn's solicitor wa resent at the in me] interview. It is unnécessarv to refer to the detail of them. It is enough to sav that, particularlv in the record of interview, there are revealed a number of matters which, sinalv and together. suaqest stronqly that Mr. Jackson's account of the transaction with Mr. Jorqaensen is false. 12. Counsel for the Jackson interests declined to call anv evidence in reply to that relied upon in the applicant's case. When he came to address, senior counsel for the Jackson interests made no submissions concerning the facts of the matter. He restricted his submissions toa submissions dealing with the jurisdiction and power of the court to make the order soucht,. and to submissions going to the exercise of its discretion. In those circumstances I have na hesitation in accepting the evidence upon which senior counsel for the applicant relies. In reachina that conclusion I have taken into account that the police in Brisbane have charaed Mr. Jackson with misappropriatina $4.3 million. the Property of the company, Jackson Holdings Limited. During the course of the hearing counsel soucht a stav of these proceedings pending the outcome of the criminal proceedings. I refused the application because, in mv view, the requirements ar adustice overall necessitated that this application be dealt with as quicklv as poassible. Anv delav would be likelv completelv to defeat its purpose. The matter. on the view of the authorities which I took, called for an exercise of mv discretion. It seemed to me that the balance plainly required the refusal of any stav: see McMahon v. Gould (1982) 1A.C.L.C. 98 and Cameron's Unit Services Pty Limited v. Whelpton & Associates Ptv Limited (1984) But having refused it, I should, when having regard to the failure of Mr. Jackson to give evidence, bear in mind that on counsel's advice he may have preferred to maintain his ridght ta 13. silence and not expose himself to cross-examination bv counsel for the applicant in this case. His failure to aive evidence ought not therefore be aiven the same weicht or sianificance as would have been the case if no criminal proceedinas were pendinda. Nevertheless, it is a factor. In anv event, the important thina is to take account of the evidence which has been called. It establishes, in mv opinion, that the storv about Mr. Jackson's purchase of stones from Mr. Jorqensen was false. I. make it clear, as I attempted to do at the outset of this jiudament. that that is a finding made purelv for the purposes of these proceedings between these parties. What follows from that conclusion? The $4.3 million went in three consianments to Mr. Jackson's home. In the absence of evidence tc the contrarv 1t should be inferred that he still has control of it or has acquired assets which represent it. That is indeed shown in respect of part of it. namelv., a sum of $£4¢C,900. Without qoing to the detail of the evidence, there is uncontested evidence from which it should be inferred that property bought in the name of the eighth respondent, Edith Pastoral Commpany Ptv Limited, was acquired with this monev. Edith Pastoral Company Pty Limited is a company which is controlled bv the Jacksen interests. The ninth respondent, Edith Marv Jackson, is Mr. In different factual circumstances there mav have been a question as to whether or not the money was Mr. Jackson's money. 14. put the evidence establishes that he has treated it as his own. It was he who secured its withdrawal and lodament in safe deposit boxes in his and his wife's names. Subsequently he took it to his house. An analvsis, such as senior counsel for the applicant undertook desiagned to show that the moneys were infact Mr. Jackson's, or those of the first respondent. is not necessarv. For the purposes of this case, presumptions of innocence and reaqularitv. coupled with the absence of anv contrary evidence, lead to the inference that the money is property which 1s available to satisfv anv otudament which the applicant mav recover. The verv actions of Mr. Jackson in endeavouring to conceal with money re-enforce mé im concluding that that inference should be drawn. I should add that the assumption underlvina the charge laid bv the police. namely that the mon 1m Vv was the propertv of Jackson Holdinas Limited. 1¢ not accepted bv the applicant. I do not wish to sav more about this matter than that. on the evidence before me, the question is. to sav the least, am open one. On the one hand the monev was borrowed in the name of Jackson Holdings Limited. But against that, it stood in the names of various companies thereafter and was finally used by Mr. Jackson as if it were his own. Over all those companies Mr. Jackson exercised such contrel that it would have been a simple matter for him to transfer the property in the monev ta himself. There is no evidence to the contrarv and, for the Eurposes of these proceedings, it is the inference which should be drawn. Senior counsel for the Jackson interests made a number of submissions. He challenged the jurisdiction of this Court to make Mareva orders at all. It was decided bv Ellicott J. (as he then was) in Hiero Pty Limited v. Somers (1983) 47 A.L.R. 605 that the Court does have such jurisdiction. Ellicott J. thoudcht that the source of the jurisdiction was the provisions of s. 23 of the Federal Court of Australia Act 1974 and s. 87 of the Trade Practices Act. I am in respectful agreement with his conclusion, although I would be inclined mvself to base the source of jurisdiction substantially. if not entirely, on s. 23 of the Court's statute. Counsel's submissions to the contrarv relied, as midht he expected, on the limited nature of the Court's jurisdiction, its lack of amherent Jurisdiction and the qenerallv wide powers which a court cf qeneral jurisdiction has as exemplified bv ¢. 22 of the Supreme Court Act 1970 (N.S.W.), the words of which satisfied the Court of Appeal in Riley Mackav Ptv Limited v. Rilev £1982] N.S.W.L.R. 264, that the Supreme Court of New South Wales had the requisite jurisdiction. Nevertheless. s. 23 of the Federal Court of Austratia Act confers wide powers. It 1s true that they are confined in that they only arise in relation to matters in which the Court has iurisdiction. but 1t has Jurisdiction in the principal application. partly because of the Trade Practices Act, and partly because of the accrued jurisdiction which the court has. Sa, s. 23 of its Act is in play. 164. The section is not a provision which should be read ina narrow or restricted wav. In my opinion. it is necessary that a court such as this should have in its armoury the weapon of the Mareva invunction. The words of s. 23 are ample enouch to embrace such jurisdiction. If this were not the case, the Court's processes, like those of courts of general jurisdiction, could be defeated bv conduct such as is here disclosed. However the difficult problem in this case 15 whether the general Mareva aniunction power which. since 1975 courts of general iurisdiction have decided thev have, extends to an order that a respondent provide security in circumstances where failure to comply with the order mav expose him te punishment for contempt of court and thus imprisonment. T have reached the conclusior.. having considered a number cf authorities. that the qrisdictzon exists. The jiurisdiction is desianed to canfer power on the court to do what is reasonablv necessarv to achieve the securin of a defendant's or respondent's property against the dav when tudament may be recovered, in circumstances where it 1s shown that, through activities of the defendant or respondent involvina divestiture, disposal. concealment or sending out of the turiscdictian of assets, that mav not be the case. When the court comes to exercise its discretion the question is, what will be the minimum likely to achieve that end? If the orders here souaht are that minimum, it seems to me that there is no reason associated with a court's jurisdiction whv the orders 17. should not be made. There are nevertheless serious questions as to the wav in which the court should exercise its discretion. Those questions I defer for the moment in order to deal with other submissions. As I sav. amnumber of authorities were referred ta in araument. It is true that none of them deals with facts similar to those in question here. None of them is authoritv for th proposition that an order of the kind here soucht 1s appropriate. But in Ballabil Holdings Pty Limited v. Hospital Products Limited C1985] 1 N.S.W.L.R. 155, Glass J.A. said (p. 163) that the question there to be decided, namelv. whether the court could qgrant an iniunction to restrain a local company from dealinag with assets outside the jurisdiction, was without authority. He decided that the court did have such jurisdiction. In the course of his reasons he said:- "There is however a more fundamental answer which is based upon the manner in which the common law evolves. Whenever a doctrine or principle is extended or developed ait comes about because the factual situation under cansideration stands outside the scope of the doctrine or principle as presently defined. The extension or development of necessity requires a redefinition of the doctrinal basis. Before the first extension it coulda have been araqued that Mareva relief was so defined as to he available only against foreian defendants. Before the second extension it was available only to prevent removal of assets. As presently defined Mareva relief does not apply to foreiaqn assets. If it did, no extension of doctrine would be needed. If it is to be developed in accordance with the dictates of leqic and commercial reality ... its purpose could rationally be redefined so as ta ao bevond conduct which frustrates the local tudament and 1A, extends to conduct which frustrates the plaintiff In the pursuit of his remedv". The question here is not quite as bereft of authoritv as was the question which arose for decision in the Ballahil Holdings case, In C.B.S. United Kingdom Limited v. Lambert £19873 1 Ch. 37, the Court not only made orders restraining the defendants from dealing with their propertv, it ordered therm pending the frial to deliver up to the plaintiffs' solicitors certain motar cars shown to be in their passession. Senior counsel for the Jackson interests said that the C.B.f. case was ta be distinquished from the present because there the Court inferred that the motor cars had been purchased from profits unlawfully made from the infringements of copyright for which the defendants were sued Counsel relied upon the following passage from the judament cf Lawten L.J. whe delivered the widament of the Court. His lordship said (p. 44):- ",.. the court should be slow to order the delivery up of property belonging to the defendant unless there is some evidence or inference that the propertv has been acquired hy the defendant as a result of his alleded wrona-doing. In the present case. for example, the inference is that the motor vehicles which the defendants own could onlv have been purchased out of the proceeds of sale by the defendants of articles which infringe the plaintiffs' copyright. The inference is also that, if the defendants are forewarned or left in possession of the motor vehicles. those vehicles will he sold and the proceeds of sale dissipated or hidden so that the plaintiffs would be deprived not only of damages but also of the proceeds of sale of ainfringinag articles which belona to the plaintiffs". 9. The action for recoverv of profits in the ©,B.S. case was no less an action in personam than the action here. To the extent that the case is different from this one. it is onlv because the defendants in the €.B.$. case were thought by the Court not to have had anv source of monev available to them for the purchase of the motor cars except their unlawful dealina. That is not established here in relation to anv particular assets of the respondents. But the fact is the applicant has, on the findinas T have made, good prospects of success in an action in which it claims ta have been defrauded of a sum in excess of $2 million, a sum which was part of that paid to the first respondent when the taverns were sold. Furthermore, Lawton L.J. was careful tc sav that the court should be slow to order the deliverv up of property. Plainlv his lordship there recognized that the court had tur:isdiction to make that order. Obviously what his Lordship sald was said for the purposes of and in the context of the case which he had to decide. Nothing that he said suaqagests that there is no jurisdiction or power to do what the applicant here seeks. His Lordship's wards do. therefore, provide some support for the applicant's case, It follows that the fact that the circumstances of this case mav require the court to ao further than was the case in the C.B.S. matter does not involve its doing so being wrona or the ¢€.B.S. case being of no assistance in quiding this court in what it should do. 20, Tr addition ta submittina an absence of furisdiction whether on the more particular qround associated with the limited nature of this Court's jurisdiction or on the more general oarounds referred to. counsel for the Jackson interests relied on some further submissions of substance and on a number of discretionary matters. The submissions of substance were: (a) The orders souaght would, aif aranted, be tantamount to pre-trial attachment. (bh) The orders sought would be tantamount ta requiring a defendant to aqive security, a course the courts have never entertained. The first of the submissions was the subiect of extensive discussion bv the Court of Appeal in New South Wales in the Rilev McKay case, see pp. 272-276. The Court was especially obliged to consider the matter because of the provisions of s. 16/3)(c) of he Supreme Court Act 1970 (N.S.W.) which provides that no writ of foreign attachment shall be issued after the commencement of he Act. In the course of aqiving reasons for its conclusion that an order restraining a defendant from dealing with assets pendina trial was not an attachment of those assets, the Court referred at lenath to the decision of the Enalish Court of Appeal in Cretanor Maritime Co. Limited v. Irish Marine Management Limited [19787 1 W.L.R. 966 where Buckley L.J. said (p. 973):- "J... ait ais, I think, manifest that a Mareva injunction cannot operate as an attachment. 'Attachment' must. I apprehend, mean a seizure of assets under some writ or like command or order 21. of a competent authority. normallv with a view to their beina either realised toa meet an established claim or held as a pledge or securitv for the discharae of some claim. either already established or vet to be established. An attachment must fasten on particular assets. They need not, I think. be particularised in the writ or order under which the attachment is effected, but the attachment of a particular asset cannot take place unless and until it has in some manner fastened on that asset. A Mareva injunction, however, even if it relates only taa particularised asset... 18 relief in personam. Tt does not effect a seizure of anv asset. It merely restrains the owner from dealing with the asset in certain wavs. The asset (for example. the aircraft in the case referred to) miaht be said to have been in a_e sense arrested, but onlv in a loose sense. All that the iniunction achieves is in truth to prohibit the owner from doina certain thinas in relation ta the asset. It 1s consequentlv. in mv judament, not strictlv accurate to refer toa Mareva injunction asa pre-trial attachment". Counsel for the Jackson interests relied, of course, on the nature of the order here sought. It would require the lodaemert of the sum $3 million or appropriate securitv in such a sur. But the applicant does not seek the deposit of any specific ¢3 million or the qivinag of anv particular asset as security. What the applicant submits 1s that the only order appropriate to protect it adqainst the disposal or concealment of assets otherwise likelv to cecur is an order that security be previded. Any other order is likelv tc he valueless. No seizure or attachment of any particular asset 1s involved anv more than 1t is when a party to litigation is required, as is aften the case, to provide security for costs of for the amount of a judamert heina taken on appeal. 22. In mv opinion the applicant's submissions should he accented. My acceptance of them avoids the need to consider the question whether 1t is relevant at all to determine whether an crder of the kind sought would amount to an attachment. There is no provision similar to s. 16(3)(c) of the Supreme Court Act in the Federal Court of Australia Act. However, that alone may not have peen enough to avercome the problem presented by the subrission In the circumstances it 18 umnnecessarv to express any view and I do not. In support of the second submission counsel relied on Accidental and Marine Insurance Company v. Mercati (1866: L.R. 3 Eq. 200, and Re Travelodge Australia Limited (1978) 21 A.C.T.P. V7, Those cases provide support for the proposition that in ordinary circumstances a defendant will not be required to aive securitv whether for costs or otherwise. That is certainly the general position. but the question here is whether the relief, which has become known as a Mareva injunction. should nevertheless extend to the making of an order for the aiving of security in an appropriate case. I have already decided that the Court has durisdiction to make such an order. IT have also said iD that there is a difficult guestion to be decided concerning the way in which the Court should exercise its discretion. Those being my views, it is mv opinion that the submission now under consideratiion beas the question which this applicatior raises for decision. The submission certainlv raises important general considerations, but it does not itself provide anv answer toa the tw applicant's case. In support of his submission that the relief should be refused on discretionary arounds. senior counsel for the Jackson interests raised a fundamental point. In his submission the makina of an order that Mr. Jackson bring into court the sum of $2? million would require him te incriminate himself. That would be becauss the verv payment of the monev would tend to establish that, contrarv to the account given to the police, he did not part with $4.3 million for comparatively worthless jewellerv, with the consequence that his storv to the police was false. This in turn would tend to establish that he was concealing the money and had himself appropriated it from the company which the police alleaqe was the owner of it, that is Jackson Holdings Limited. As I have earlier noted, it is not the applicant's case that the ronev was the property of Jackson Holdings Limited. In support of his submission. counsel for the Jackson interests referred to the decisions of the Court of Appeal and the House of Lords in Rank Film Distributors Limited v. Video Information Centre C1982] A.C. 389. That was a case where an Arton Piller order (Anton Piller KG v. Manufacturing Processes Limited £19761 Ch. 55) obliged defendants to give immediate discovery and answers ta interrogatories relating to the supply and sale of films said to he infringing copies of films the copyright in which was owned by the plaintiffs. 24. The Court of Appeal and the House of Lords decided that the defendants were entitled to relv on the privileaqe aaainst self-incrimination by discovery or answering interrogatories, since, if they complied with the orders, there was a real and appreciable risk of criminal proceedinas for conspiracy to defraud being taken against them. In the course of his tudament in the Court of Appeal, Bridge L.J. (as he was) said (pp. 415-416):- "What then is the efect. in relation tc the practice of making Anton Piller orders in copvridqht cases, ef the canclusion that a copyright pirate May be entitled to claim privilege from incriminating himself? Clearly it cannot te to inhibit the makina of ex parte orders requiring defendants to permit the immediate search for and seizure of infringind copies. Section 18 of the Copvright Act 1956 aives ta the copyvrioht owner proprietary rights in such copies and cwners seeking to enforce proprietary rights whether by final or interlocutory order to recover their own property cannot be defeated bv anv claim of privilede. But very different considerations applv to those parts of an Anton Piller order which require the person to whom the order is addressed to give forthwith to the person serving the order answers to specified questions and disclosure of relevant documents. It has lona been the practice of judges hearing oral evidence to warn witnesses who are in apparent danger of incriminating themselves that thev are entitled to claim privilege from self-incrimination. It woulée not he practicable, inmy judgment, to embody an effective warning of that kind in a_ tvpical peremptory Anton Piller order in such terms as to ensure that the recipient of the order fairlv understood his position, what he was required to doa and what were the options open to him. It must follow, I think. that the only satisfactory practice will be. when the court invited to make an Anton Piller order can see from the strenath of the applicant's evidence that the proposed defendant is in danger of self-incrimination, to abstain from makina any order ex parte requiring 25, immediate answers to questions or disclosure of documents". Templeman L.J. (as he then was) said (p424):- "The plaintiff in copyright proceedings relating to films or records seeks an order for instant discovery and interrogatories aqainst the defendant not so much for the purpose of proving the extent of Jliabilitv of that defendant as for the purpose of obtaining information which will enable the plaintiff to trace and to take proceedings against third parties involved with infringing copies. The legitimate anxiety of the plaintiff to obtain information about third parties and tc act against third parties with speed and secrecv has onlv arisen in recent vears as aresult of developments in technology and travel facilities which enable infrindgers of copyright to copy and distribute films and records with great ease, little expense and ample profit. There is no reasen to think however that Parliament in 1956 foresaw or intended that the doctrine at self-incrimination would need modification to deal with the peculiar difficulty whick has now arisen in the path of oaners cf some forms of copyright". In the course of his speech in the House of Lords, Lord Wilberforce referred to the privilege against self-incrimination and said (p. 442):- "This has been too longa established in our law as a basic libertv of the subiect ... to be denied", He continued (pp, 449-443) to deal with attempts by counsel for the plaintiffs ta reconcile the privileade against self-incrimination with the requirements of an Anton Piller order Te. and the desirability that 1t be made in the form in which the arder under appeal had been made. Amonast other things, his Lordship said (pp. 442-443):- "Mr. Nicholls (of counsel for the plaintiffs) was therefore obliged to suggest that even granting this, the courts had power pasitively to decide in a particular case, as the counterpart of the obligation to disclose, that any matter which is compulsorily disclosed as the result of the court's process should be inadmissible in evidence. But I cannot accept that a civil court has any power to decide in a manner which would bind a criminal court that evidence of any kind is admissible or inadmissible in that court. Certainly a criminal court alwavs has a discretion to exclude evidence improperly ebtained if to admit it would unfairly preiudice a defendant. But to substitute for a privilege a dependence on the court's discretion would substantiallv be to the defendant's detriment. That the civil court has not the power to declare evidence inadmissible is strikinaly show bv section 21 of the Theft Act 1968 which contains an express provision by which a person 2¢ obliced Fo answer questions put in proceedings for the recovery of propertv and to comply with orders made in such proceedings and which states that ne statement er admission so made shall be admissible in evidence against the person concerned in proceedings for an offence under the Act. Infringement of copyright is not theft. so this section cannot be invoked. The appellants' submission amounts toa a request to the courts, by judicial decision, to extend this statutory provision to civil proceedings generally, or at least to these proceedings. But this. in my opinion, the courts cannot do". Notwithstanding that that was his Lordship's view. the solution rejected by the House of Lords was the solution adopted by the majority of the New Zealand Court of Appeal in Busbv v. Thorn - E.M.T. Video Programmes Limited £19243 1 N.2.L.R. 461; 27. see especially per Caoke J. at p. 471 and per Bisson J. at pp. 487-488. An initial distinction between the present case and the Rank case is that here the applicant does nat seek an order requiring Mr. Jackson to swear an affidavit or answer interromatories. But. ain the submission of counsel for those interests, the payment into court of part of the very moneys which Mr. Jackson admittedly received from the safe deposit boxes must be a factor which would be relevant for the Crown to prove in the prosecuti ie) n Aqainst him. Tt will have been observed that neither the C £ ia) uU "s of Appeal nor the House of Lords thought it necessarv to disturb so much of the Anton Piller order in that case as required the defendants to permit access to their premises and the seizure of films which infringed the plaintiffs' copyright. Yet presumably the verv fact that the films were in their possession and the circumstances surrounding their seizure would have been relevant and admissible evidence in anv prosecution. Perhaps the difference was that those facts existed objectively and independently of anvthina which the defendants were obliaed to say in answer to an interrogatory or produce by way of discovery. A further point of distinction lies in the peremptorv and ex parte nature of an Anton Piller order. In this respect it is to be observed in the passage quoted from the judement of Bridge L.d. (p. 416) that he was careful to say that the court should abstain from makina any order ex parte requiring immediate 2k, answers to questions or disclosure of documents. Nevertheless, I do not think that those poionts of distinction are sufficient to overcome the aeneral thrust of counsel's arqument which is that a pavment into court bv Mr. Jackson pursuant to an order that he do so will cause him to do an act which mav tend to incriminate him. But what I think does overcome the arqument is the fact that the applicant does not seek the payment in of anv specific monev in the sense of it being identified witn the $4.3 million of which Mr. Jackson toak delivery. What is wanted 1s a pavment of $2 million or satisfactory security in lieu thereof. Really 1t is the latter which is sought. If an order is to be made. I think that is the form which it should take. Many forms of compliance with it would he available, a bank quarantee requiring no deposit of monev being one example which comes to mind. If this were provided, the fact that it was would not provide a prosecutor with anv evidence of Mr. Jackson's quilt of the crime with which he has been charged or anv charae which one can imacqine. Te should be made clear that on the evidence the sum of §4.3 million is by no means the only sum of monev which it mav be accepted Mr. Jacksan has. or has control of. His applications to the finance commpanies towards the end of last vear showed, as I have earlier said. that the Jackson interests had assets exceeding in value some $11 million. Counsel for the Jackson interests submitted that a aeneral 29, order was not permissible because the wav in which Mareva relief wae intended to operate was to restrain the defendant dealinag with particular assets. Tt was only because the $4.3 million was, on the facts I have found. shown to be likelv to be in Mr. Jackson's possession or control that relief of this kind would be contemplated, That 1s no doubt true, but that does not involve anv orders to be made requiring the pavment ainto court of monev necessariiv identified as the monev or part of the monev deliverec in cash to Mr. Jackson by Armaquard. It mav be that monev or it mav not, or it mav be, as I have said. that securitv will be provided in same other wav. Whether it is or not. 1s entirely a matter for Mr. Jackson. That Mareva relief mav be qeneral is established in a number of auther:ties, including the Ballabil case earlier referred ta and also T.D.K. Tape Distributor (U.K.) Limited v. Videochoice Limited [£1985] 3 All E.R. 345: cf. Z Limited v. A - Z £19827 1 Q.B. 558. It all depends upon what the circumstances require. The fact that many Mareva injunctions have been specific as to particular assets is only because the court. upon the evidence before it. becomes aware of particular assets and of steps likely to be taken to deal with them. Two cther matters relied upon in relation to the exercise of discreticn were that to make the order would have the effect of placing Mr. Jackson in double jeopardy and that there were alternative remedies available to the applicant which were 30, adequate ta protect it. The first of these matters, as I \nderstooz it. was based on the proposition that anv refusal bv Mr. Jackson to comply with the order would expose him to the risk of beina dealt with for contempt: thus he was exposed twice to punishment for the same unlawful conduct. I do not perceive that the unlawful conduct. if that 1s what it is, is the same. If an order 1s made. Mr. Jackson has the choice of complvino with it or nat. Tf he does not, the circumstance that he mav be punished for contempt has nothing to do with anv unlawful taking of the $4.3 million from Jackson Holdings Limited, 1f indeed it was taken from that company. That involves an entirely different matter. The sugcested alternative remedies are said to be available on the basis that once jiudament is entered bankruptcv and windino-~-ur proceedings may follow with the consequent likelihood of liquidators or trustees in bankruptcy taking possession of property and applvina to avoid transactions. But time mav defeat manv suck remedies. The doctrine cf relation back and the date when a windinc-up commences oaften prevent the undoina of transactions such as have been entered into in this case. The adiournment secured by the Jackson interests on 12 November 1995 must havé gone a longa way to achieving such result. It is true that there are other provisions of the Bankruptcy Act 1966 which apply ir company liquidations as well as in bankruptcies. I instance s. 120 dealing with settlements of property and s. 121 dealing cith fraudulent dispositions of property which may not 31. have the same time constraints. but from one's experience one is aware of the difficult task which a trustee or a liquidator has in aatherina evidence and in discharaina the various onuses which rest upon him in any such proceedings. It seems to me that, if the applicant is otherwise entitled to the relief it claims here, the fact that transactions may be undone in the event of ultimate bankruptcy or windinag-up provides no answer to the case far relief which is made. All I have so far said points to the case for relief of the kind souaht having been made out. but there remains a fundamental question. The onlv sanction for breach of the order soudht will be punishment for contempt. It would todav be onlv in verv exceptional circumstances that a court would visit a failure to pav monev or provide securitv with imprisonment. The law does not authorize the imprisonment of debtors. That was lone ado abolished. If the applicant now had judament, the court would not imprison Mr. Jackson for non-payment of the jiudament debt. Why, it may be asked, should it take the course of exposing him to the risk of imprisonment before judament has been recovered. The answer qiven by the applicant, whose counsel acknowleddes the drastic nature of the order sought, is that ne other relief which the Court can provide will be likelv to safequard assets that ought in conscience be available for the satisfaction of the judament the applicant expects to recover. It is the verv extraordinarv and unusual circumstances of the 32. case and the svstematicallv and blatently fraudulent conduct of Mr. Jackson which the applicant submits call for an order of the extreme kind here claimed. None of these considerations ao, I think, to the Court's jurisdiction. Thev ao to the exercise of its discretion. The evidence satisfies me that the applicant's fears are well-founded. Mr. Jackson's conduct establishes. not onlv his intention, but also his determination, to deprive the applicant of the benefit of the judament it expects to recover. Nothind that has emerged in the course of the hearina leads me ta think that he is likely to waiver from his chosen course, He is determined to avoid the consequences of judgment if he possibly can. I thus agree with counsel for the applicant that nothing short of an order such as he seeks will prevent the continued divestiture and concealment of assets which beaar with the advice aiven in Julv last vear. To refuse the order is to stand bv and see the Court's pracesses frustrated by fraudulent conduct. It is in these circumstances that I have reached the conclusion that I should accede to the application. One factor I have taken into account in reachinoe this conclusion is the arantina of the application for the adjournment of the hearing on 12 November last. The around of the application was the ill health of Mr. Jackson who was said to be suffering from alandular fever. He mav have been; but in the light of the facts now known it would seem likely that the 33. application was in truth made to cain further time in which to continue the restructurina of companies and trusts holdina assets originally held by the Jacksons or the first respondent. NIM Services Ptv Limited. Thus, not onlv the applicant and its advisers. but also the Court, were misled. That reinforces me in mv conclusion that only an order of the most Draconian kind will have anv effect. In concluding this part of the judament I would add that onlv a little over ten vears ago neither Mareva iniunctions nor Anton Piller orders existed. The increasing resourcefulness of those attemptina to avoid their obliaations, the ease with whick monev can be moved from one country to another, the ease with which people themselves can travel. and advances in technoloav convinced the courts in Enagland that new remedies were required. The orders I mention are now evervdav affairs - twentv Mareva injunctions a week are aranted in London. The law on these matters has been picked up and applied in Australia. A reading of a number of the cases discloses the need the courts have had to mould and extend the turisdiction thev have devised. In mv opinion the order to be made here is but a further step in the process that continues to evolve. Not to advance the process would be to stultify the jurisdiction and open the way to those anxious to avoid their obliaations bv devising wavs around the jurisdiction as it is exercised at a aqiven time. Unless the courts are prepared to extend and mould the iurisdiction to take account of events as they transpire. the jurisdiction will cease 34, to have its effect. I aaqree with both counsel that the order is an extreme one and one which certainly would onlv be made in the most extreme circumstances. Nevertheless, as I sav, I am satisfied that this case requires it. Tt remains ta deal with the application to dissolve the Mareva iniunctions aranted acainst the eidqhth and ninth respondents, and with the application to appoint a receiver over the assets and undertaking of the eighth respondent. Edith Investments Pty Limited, and of Jackson Holdinas Limited. I am satisfied that the iniunctions should not be dissolved. The principal matter relied upon by counsel on behalf of those respondents was that an injunction should not be made if it restrains a party against whom principal relief is net claimed. That is usuallv the case, but there are exceptions. These were referred to in the decision of the New South Wales Court of unreported). There, in the course of his reasons. Hope J.A. specified a number of conditions which. if met, would make it appropriate to arant Mareva relief against a party in respect of whom no principal relief was sought. He said (p. 13):- "Without attempting to define or to limit the extent of the exception, the necessarv circumstances will exist when the affairs of a defendant sued by a creditor for an alleaed debt and of the third partv aqainst whom the iniunction is souaht are intermingled, the alleged debtor and the disposition of its assets are effectively controlled, de jure or de facto, by the third party, the debtor's assets will be insufficient to meet the debt, the creditor, a5 although havina no vested or accrued cause of action aaqainst the thard partv, mav become entitled to have recourse to the third partv or his assets to meet his debt. and there is a danger that the third party will send his assets abroad or otherwise dispose of them". In my view, notwithstanding submissions to the contrarv bv counsel for the Jackson interests, each of those conditions is met by the applicant's case. I do not ao ta the detail of mv reasons for that conclusion: it is enough to sav that the evidence satisfied me. and I repeat that no submission in relation to the evidence was relied upon bv counsel, that each condition has been fulfilled. The fact that the evidence establishes that $540.000 which provided the purchase monev for the pastoral propertv which is the eidchth respondents principal asset and that the ninth respondent. who lives on the propertv, ' ig Mr. Jackson's mother. provide a sufficient indication of the factual position. There is then the question of whether a receiver should be appointed over the assets and undertaking of Edith Investments Pty Limited. In counsel's submission the Court has no power to make such an order. Apart from relying upon the absence of anv express power to appoint a receiver conferred upon this Court bv its statute. counsel also relied on the qeneral uncertaintv which there is about this matter in courts of general jurisdiction. An analvsis of the jiudaments of the Court of Appeal in New South Wales in the Ballabil case shows that the matter is not free from BR, doubt, although Priestiv J.A. in his itudament, with which I am inclined to agree, thought the power did exist 'p. 165). Having aqiven the matter due consideration, I have decided that I will not, at least at this stage, accede to the application. The existing iniunctions restrain anv dealina with the pastoral property, which appears to be the companv's principal asset. The companv also has stock and plant. and that is the reason whv the applicant wishes a receiver appointed, but T think. bearing in mind that the order for the provision of securitv will be made and that the companv is restrained from dealing with its principal asset, that, particularlv because of the doubts about the matter which there are, the order should not be made, at least at this time. There remains the question of the appointment of a receiver aver the assets and undertaking of the company. Jackson Holdings Limited. This morning I was informed by counsel for A.G.C. (Advances) Limited that a receiver has been appointed bv his client. I was also informed that the lease of the premises in Which a restaurant is conducted contains a provision which entitles the landlord to terminate the lease in the event of the appointment of a receiver. That provision does not apply in the case of the appointment bv A.G.C. (Advances) Limited of a receiver because of a special aqreement between the parties. There being a receiver alreadv, and there being the problem adverted to by counsel' 1t seems to me that it is inappropriate, 37. on the application of the applicant here, to appoint, at least at this stage, vet a further receiver, and I will not make that order, T propose to stand this matter over for a short time, preferablv until a time later todav, to enable the parties to consider what I have said. When the matter comes back into the list. I direct counsel for the applicant to bring in short minutes of order to give effect to mv decision. T indicate that, in addition to the orders I have proposed. I would be prepared to oaive consideration to making orders providing for a more specific restraint in relation to the sum of $4.3 million. for the filing bv Mr. Jackson of an affidavit as to his assets and liabilities. and for the answering bv him of appropriate interrodatories as to his property dealings and affairs. Such a course mav bring in its train some of the problems referred to in the Rank case, but no affidavit or answer toa interrogatories need be made without the advice of counsel and solicitors. There will thus be adequate opportunities for Mr. Jackson to be advised of his rights and the privileges he mav claim from answering questions. That, as I have earlier pointed out, was not the case in Rank. (Later on 23 April 1986 his Honour made orders in terms of those which appear as a preface to these reasons for judament). 38, | certily thatteeancthe 37 preceaing P2gces are a trues copy of the reasons for judgment herein or The Honourable Mr Justice Sheppard. 7 "a A 2s Associate Dated 23 APRIL /7PG