CATCHWORDS CUSTOMS - application for civil penalty - order to take control of property - whether interlocutory - jurisdiction to set aside - Jurisdiction to make declaration as to title to property - whether prima facile case enough. CONSTITUTIONAL LAW - acquisition of property - enforcement of Customs Act - in aid of recovery of penalty - order to take control of all defendant's property - validity - whether just terms necessary. EQUITY - voluntary assignment - when complete - nominal consideration - Torrens land - whether transferee must have certificate of title - presumption that transferor retains beneficial interest. STATUTES - presumptions - against self-incrimination - whether privilege excluded. FEDERAL COURT - jurisdiction - declaratory order Customs Act 1901 Division 3 Constitution of the Commonwealth of Austcalia s.51(xxx1) Proverty Law Act 1974 (Q.) 5.200 Real Property Act 1861 (Q.) ss.49, 95, 139 Stamp Act 1894 (Q.) s.4B Commissioner of the Australian Federal Police v. Ian Ormond Cox N.S.W. G292 of 1986 PINCUS J. BRISBANE 24 DECEMBER 1986 tom of IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) N.S.W. G292 of 1986 GENERAL DIVISION ) BETWEEN: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Applicant AND: JAN ORMOND COX Defendant MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 24 DECEMBER 1986 WHERE MADE: BRISBANE THE COURT ORDERS: 1. That the order of the Honourable Mr. Justice Beaumont of 21 July 1986 be further varied: (1) By veplacing the words "Situate in the Commonwealth of Australia, and without limiting the scope of this order, the Defendant's interest in:" by the words: "AND 1t 1s DECLARED, without limiting the scope of this order, that such property includes:". (11) By inserting after para.2(a)(iv) the following: "(b) AND without limiting the scope of this order, the Defendant's interest in:". (1ii) By replacing the letter and words "(b) Situate in any part of the world other than the Commonwealth of Australia, and without limiting the scope of this order, the Defendant's interest in:" by the letter and words "(c) AND without limiting the scope of this order, the Defendant's interest in:". That the Official Trustee be empowered to sell any property of the Defendant for the purpose of meeting the costs, expenses and disbursements mentioned in para.(2) of the order of the Honourable the Chief Judge made herein on 3 October 1986 and that moneys realised from such sale be made available to meet such costs, expenses and disbursements. NOTE: That the Defendant's applications of 5 September 1986 and 1 October 1986 be, insofar as they have not been otherwise disposed of, dismissed. That the Defendant pay the costs of the applicant of and incidental to such applications to be taxed, provided that this order for costs is not to take effect if, within 21 days, the Defendant's solicitors advise the Registrar in writing that the Defendant desires to make submissions with respect to the costs of such applications. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) N.S.W. G292 of i986 GENERAL DIVISTON ) BETWEEN: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Applicant AND: IAN ORMOND COX Defendant PINCUS J. 24 DECEMBER 1986 REASONS FOR JUDGMENT I have before me two applications by the defendant under ss.243E and 243F of the Customs Act 1907. They relate to orders made by Beaumont J. on 21 and 24 July 1986, under the former provision, on the application of the Commissioner of the Australian Federal Police, who will be called the applicant in these reasons. The applicant made the principal application on 18 July 1986, seeking a pecuniary penalty under s.243B of the Act, discussed below. The defendant's applications, which were filed on 5 September 1986 and 1 October 1986, need not be set out in detail. They attack orders made by Beaumont J. under s.243E of the Customs Act on the ground that they are, it is said, in conflict with s.51(xxxi) of the Constitution and on other grounds to he mentioned. Prima facie, of course, orders made by a single judge of this Court may be challenged only by way of appeal, but the parties agreed that it is open to me to set aside the orders of Beaumont J., as those orders were interlocutory. For reasons of substance, I propose to decline to set aside the orders of Beaumont J., so it is unnecessary to state a final conclusion as to the source of my power (if any exists) to set such orders aside; for other reasons, however, it is desirable to arrive at a view as to the nature of the proceedings - i.e. whether they are in the full sense interlocutory or not, and that point 15 discussed below. The batch of provisions of the Customs Act relevant in these proceedings 15 58.243A to 2435 inclusive, being Division 3 of the Act, inserted by Act No. 92 of 1979, which provisions have Since undergone seme amendment; I shall net set out the whole of their relevant parts. Under 3.243B, the present applicant 1s empowered to sue, in this Court, ror an order that a person pay a pecuniary penalty to the Commonweaith in resvect of prescribed narcotics dealings engaged in by him during a particular period, and such a proceeding was instituted against the defendant on 19 July 1986, the period specified being 2 February 1985 - 3 July 1986. The expression "prescribed narcotics dealing" is, in effect, defined by s.243A(3). It is unnecessary to set that provision out, and enough to note that a person is taken to engage ina prescribed narcotics dealing if he imports narcotic goods into Australia in contravention of the Customs Act, or if he does certain other acts of a generally similar kind. Under s.243B(2), if the Court is satisfied that the defendant has, during a particular period, engaged in prescribed narcotics dealings, it "shall assess" the value of the benefits he derived thereby, and order him to pay a pecuniary penalty equal to the value as_ so assessed. Under s.243B(3), the Court may so order whether or not the defendant has been convicted of an offence or proceedings have been instituted in respect of any offence of a relevant kind. Section 243C deals with assessment of the pecuniary penalty and it 1s, again, unnecessary to set out all the details. The essence of the provision 1s that the Court has a broad power to make an estimate of the value of the benefits derived by the defendant, taking ainto account, for example, the value of his property before and after the per1od in question. Under s.243C(3), where evidence 1s given that the value of the defendant's property at the end of the period exceeded the value at the beginning, the Court "shall, subject to sub-section (4)" treat the value of benefits derived as not being less than the amount of the excess. Sub-section (4) gives the defendant a right to satisfy the Court 'that the excess value of the property 1s attributable to cther causes than prescribed narcotics dealings. Under s.243C(6), in calculating the value of benefits derived, expenses or outgoings in connection with the relevant deaiings are to be disregarded. Under s.243E, where a proceeding has been instituted under s.243B for a pecuniary penalty, the present applicant (or certain other people) may apply ex parte for an order directing the Official Trustee to take control of property specified in the application or of all the property of the defendant. Subsection (2) requires to be set out in full: "(2) Where - (a) an application under sub-section (1) is supported by - (i) an affidavit of a member of the Australian Federal Police or an officer of Customs stating that he believes that (A) the defendant has engaged in the prescribed narcotics dealing toa which the proceeding under section 243B relates, or ain prescribed narcotics dealings during the period to which that proceeding relates; and (B) benefits were derived by the defendant by reason of the defendant's having engaged in that prescribed narcotics dealing, or in prescribed narcotics dealings during that period, as the case may be, and setting out the grounds on which he holds those beliefs; and (11) af the application seeks an order directing the Official Trustee to take control of specified property - an affidavit of a member of the Australian Federal Police or an officer of Customs stating that he believes that the property 15 the property of the defendant and setting out the grounds on which he holds that belief; and (b) the Court considers that, having regard to the matters contazned in that affidavit or those affidavits, there are reasonable grounds for holding those beliefs, the Court - (c) shall make an order directing the Official Trustee to take control - (i) if the application seeks an order with respect to specified property - of ail of that property or such part of that property as the Court thinks fit; or (ii) in any other case - of all the property of the defendant; and (d) may, subject to sub-section (3), include in the order such provision (if any) in relation to the operation of the order as the Court thinks f1t." It should be noted that no absolute or final proof of engaging in narcotics dealings 1s necessary to ground an order; it is enough that the Court considers that there are reasonable grounds for belief that the defendant engaged in relevant dealings and derived benefits. It should also be noted that sub-section (2) discriminates between the evidence necessary to justify an order with respect to specified property, and that necessary to justify an order relating to all the property of the defendant; in the former case, it appears, at first sight, that no order may be made without such an affidavit as 18 mentioned in para.(a)(iz) - a.e. an affidavit stating that the depcnenrt believes the matters set out in that provision; here there 1s no such affidavit, and the relevance of that is further discussed below. Under s.243E(4)(b), the Court 1S empowered to make provision for a review of the operation of the order by 1t, and under sub-s.(5) the Court may refuse to make an order under sub-s.(2) if the Commonwealth will not give appropriate undertakings with respect to the payment of damages or costs, or both. Under s.243F, where the Court makes or has made an order under s.243(1), the Court may, then or later, make "Such orders in relation to that property as the Court considers just ..." The provision goes on to set out specific sorts of orders which may be made, without limiting the general power. For present purposes, it is enough to note that the Court may under para.(1)(a) vary the original order in respect of the property to which it relates, and under para.(1)(c) determine any question relating to the property to which the original order relates. There are also relevant provisions in paras.(1)(d) and (e) which are more conveniently dealt with below. Constitutional Point Appropriate notices having been given to the Federal and State Attorneys~General, the defendant has argued that $.243E(2)(c)(i1) 1s invalid. The validity of s.243E(2)(c)(1) was upheld in R v. Smithers; Ex parte McMillan (1982) 152 C.L.R. 477; there an attack on the validity of s.243E, in whole, was rejected, but the Court did so on the basis that the order sought was under sub-para.(c)(1), finding 1t unnecessary to decide the validity of orders under sub-para.(c)(11). The first question is whether the challenge is relevant to this case - i.e. whether Beaumont J. made any order under that provision. The first order made by Beaumont J. was that of 18 July 1986, but that was discharged by his Honour on 21 July 1986 and requires no further consideration. On 21 July, on an undertaking as to damages having been given, his Honour ordered - wee "that the Official Trustee in Bankruptcy take control of all the property of the Defendant: (a) Situate in the Commonwealth of Australia, and without limiting the scope of this order, the Defendant's interest in..." There followed mention of certain property and in particular four described pieces of land, after which the order said: "(b) Situate in any part of the world other than the Commonwealth of Australia and without limiting the scope of this order, the Defendant's interest in..." There followed a description of certain other property. In substance, then, Beaumont Jd. made an order with respect to ali the property of the defendant, in oor out of Australia, and made his order apply, without limiting its scope, to certain specified property; that description of the order is subject to a reservation mentioned below. Beaumont J. varied that order on 24 July 1986 in a certain respect and then made other orders which it is nat necessary to set out for the purposes of discussion of this point. A possible view of the orders of Beaumont J. of 21 and 24 July 1986 is that they constitute an impermissible hybrid, for the reason that s.243E(c)(ii) does not permit the specification of any property and in particular, the four pieces of land. That is, the argument runs, the applicant may have the Court make an order with respect to all the defendant's property, or specified property, but not both. Obviously, legislation interfering with property rights, even in what might be thought a good cause, cannot be expansively construed. In my opinion, however, the objection taken on the ground just mentioned is merely one as to form. That is so because if a Court makes an order with respect to all the defendant's property, 1t may (in my opinion), then or later, determine by declaration specific questions as to what property 15 caught by the order, 1ts power to do so deriving from s.243E(2)(d) or s.243F(1)(c), or the accrued jurisdiction; I propose to deal with the dispute as to the ownership of the pieces of land in that way. Against the view just mentioned, 1t might be arguec that the decision of the Full Court in Pearce v. Button 65 A.L.R. 83, reading down an express power to grant declaratory relief on the ground, inter alia, that otherwise this Court would be entertaining matters formerly within the sole jurisdiction of State courts (see especially at p.89 line 34), tends against reading the provisions I have mentioned as giving power to determine a question (title to property) which would otherwise he solely for State courts. I do not think Pearce v. Button, however, is any authority for a general rule that powers given by statute to this Court to grant declaratory relief or the like must be read down so as to preserve prior jurisdictions of State courts; its foundation is an interpretation of the Judicial Review Act. The heresy there extirpated would not, in my respectful opinion, be repeated if I were to grant such a declaration as I have mentioned. I therefore proceed on the basis that the orders in question are in the category of sub-para.(2)(c)(i1) of s.243E and that they do not, insofar as they specify the four pieces of land, rest upon the foundation of sub-para.(c)(i). Before discussing the constitutional point, however, it should be mentioned that the order of Beaumont J. included directions to take control of "the Defendant's interest in... (v) any property including moneys neld by Proctor, Doumany and Cannon, solicitors at Suite 9, Nerang Centre, Price Street, Nerang, Queensland" and a number of similar categories. Those directions appear to me to be of a different kind from the explicit directions to take control of the defendant's interest in the four described pieces of land which are discussed below. A direction to take control of "any property" in a particular class does not appear to imply that there necessarily 1s any such property owned by the defendant and 1s not, I think, a direction ta take control of "specified property" within the meaning of s.243E(2)(c). The practical effect of such a direction is no doubt to draw attention to the possibility or likelihood that the defendant has some property in the category mentioned. I did not understand the argument before me to include any objection to orders of the sort just discussed, although there was objection to the inclusion of the four specified pieces of land. It may well be that a direction to carry out an order to take control of all the defendant's property by, inter alia, taking control of any 10. property in certain categories may be supported under para.(2)(d) but 1t seems unnecessary to reach a conclusion on that aspect, or to consider the effect of the orders as to categories of property other than thé four pieces of land in dispute. Section 51(xxxi) of the Constitution gives the Parliament power to make laws with respect to: "The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws." Since the Commonwealth 1s given express powers to raise taxes, it was from the outset necessary ta achieve a reconcilation between the taxing power and the cestriction in s.S1(xxx1). What was not once so clear was whether all other Commonwealth powers were to be read subject to the restriction in placitum (xxx1) aif they happened to be exercised in such a way as to entail an acquisition of property. One course which has been taken 1s to hold that some legislative pcovisions which would, 1n the ordinary sense, be said to empower acquisition of property, are properly to be characterised as not falling within placitum (xxxi). A clear and pertinent example of this approach is the decision in Burton v. Honan 86 C.L.R. 169, in which provisions of the Customs Act were held not to have to pass the "just terms" test because they were in aid of the enforcement of customs laws (see p.181). The Court held that there need be no just terms applicable to Commonwealth confiscations of property unlawfully imported, even as against persons who took title to such property after importation in good il. faith and for value. It will be noted that there the Court relied upon historical matters: laws of the sort in question had traditionally been part of customs legislation (p.179); the Court did not amply, however, that novel sorts of laws which, in a practical sense, achieve an acquisition of property, must necessarily pass the "just terms" test. As Mr. Temby Q.C., senior counsel for the applicant, conceded, not all confiscatory customs laws are necessarily free from the "just terms" restriction. For example, a law entitling the Commonwealth freely to acquire all the property of one who had bought illegally imported goods would hardly survive constitutional attack, although divestment of the very goods imported is permissible. It is not at first sight clear how the process of characterisation is to be carried out. It may be able fo be inferred from the authorities relied on by the applicant that a statute which in truth acquires property 1s nevertheless not necessarily one with respect to the acquisition of property because it 1s, for example, a legitimate exercise of another power (R. v. Smithers at p.485). Although counsel sought to defend the provision attacked primarily on the basis of the characterisation test, with which I have found some difficulty, 1t appears that the proper approach is to consider, in the first instance, whether there 1s any sufficient difference between orders made under the two sub-paras.(c)(i) and (c)(ii) to justify distinguishing R. v. Smithers. It is true that, as the Court there implied, an order covering all the defendant's property may have a harsh operation; 12. that will particularly be so where the defendant is not in truth guilty of any offence, and where his property greatly exceeds in value any penalty likely to be ordered to be paid under s.243B. It may be that in such a case, the Court would have power to mitigate the effect of the order by a varying order under s.243F(1)(a). Whether that 1s so or not, the order sought to be supported here, being one covering all property, is, in my opinion, valid because i1ts operation is not necessarily or essentially different from that of an order under sub-para.(c)(i). The Court's upholding of the validity of that provision in R. v. Smithers was not expressly limited to instances in which the order relates only to an appropriate or moderate amount of specified property, mor andeed, to instances in which it relates toa specified property which constitutes less than all the cefendant's peoperty. It should be mentioned that Mr. Temby Q.C. alsa drew attention to the distinction between taking control of property under s.243E and taking possession of it; the latter is an acquisition within s.51(xxxi): Minister of State for the Army v. Dalziel (1944) 68 C.L.R. 261. Although the notion of taking control, reading these provisions as a whole, is not without obscurity, in my opinion s.243E would, were 1t not a "legitimate exercise" of another power, provide for an acquisition of property within the meaning of s.51(xxxi). I am of opinion that orders applying to all the property of persons such as the present defendant made under 13. 8.243B(2)(c)(ii) do not conflict with s.51(xxxi) of the Constitution. Four Pieces of Land The next challenge to be considered 1s one toa part only of the orders of Beaumont J. As 1s set out above, the order of 21 July 1986 directed that the Official Trustee take control of all property of the defendant "situated in the Commonwealth of Australia, and without limiting the scope of this order, the defendant's interest in..." certain property. The first four atems of property are pieces of land in Queensland. The defendant's case simply 1s that he has transferred the land to his sister, Barbara Roth. The applicant does not dispute the execution of transfers to Barbara Roth, but says that the defendant, despite such transfers, retains the, or an, equitable interest. There 1s a definition of "proverty" for the purposes of the division in s.243A(1): we property' means real or personal property of every description, whether situated in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property." Then s.243A(4) says: "A reference in this Division to the property of a person shall be read as a reference to the property 14. in respect of which the person has a beneficial interest." This 1s not as clear as it might be; read literally, it is capable of meaning that if the particular piece of property 15 beneficially owned by the defendant and a number of other people, then it is taken, for the purpose of the Division, to be the property of the defendant. A more sensible result is arrived at if "a beneficial interest" is read as "the beneficial interest". However, I do not think I need resolve that problem in the present case. The dispute 1s of an unusual kind; the defendant says that no order shouli be made because he does not own the property. If in truth he does nat own it, then one would not expect him to care, 1n general, whether an order were made or not. Here, there are particular reasons, mentioned below, why the defendant wants the property free from the control of the Official Trustee; it was transferred to his sister to enable expenditure to be made for his purposes. It is convenient to set out the sequence of events relating to three of the pieces of land, being lots 4, 5 and 6 on registered plan 198659 in the County of Ward Parish of Cedar: 19. 4.1986: Defendant is issued with a receipt for $3,000, being a deposit on the three lots. 23. 4.1986: Defendant obtains an opinion from Ray White Richard Ellis as to the value of the three lots; they are valued at a total of $95,000. 5.1986: 7.1986: 7.1986: 7.1986: 7.1986: is. Defendant apparently pays his solicitors, Messrs. Adamson, Kyle and Jones, $60,000 in relation to the purchase of the land. Defendant is arrested on Lord Howe Island and charged under s.233B(1)(b) of the Customs Act with importation and possession of prohibited imports. (Defendant apparently being still in custody) his father, holding a power of attorney, executes a memorandum for transfer in respect of each of the three pieces of land in favour of Barbara Roth and the solicitors Messrs. Adamson, Kyle and Jones, send the documents tao their Brisbane agents for urgent stamping. A cheque requisition 1s drawn within the office of Messrs. Adamson, Kyle and Jones, showing the client as "Cox" (not Roth), and the matter as re "police matters", bespeaking the urgent preparation of a cheque for $6,187.50 for stamp duty on the transfers, and that cheque 1S sent to the solicitors' Brisbane stamping agents. The solicitors receive advice from the stamping agents that stamp duty has been assessed and that an additional $875 is required. Beaumont J. makes the first order now challenged, 16. 23. 7.1986 A transfer by the defendant's vendor to him (presumably accompanied by the relevant certificate of title) is produced for registration at the Real Property Office in respect of each of the three pieces of land. 28. 7.1986: The Official Trustee lodges a caveat against dealings by the defendant with the land. 16. 9.1986: Both the transfer to the defendant and the caveat are registered at the Real Property Office. The argument advanced on behalf of the defendant was, in essence, that everything requiring to be done on the defendant's side had been done to transfer each of the thrce pieces of itand to Barbara Roth as at the date of the order of Beaumont J., 21 July 1986, The argument concentrated on the certificates of title, asserting that they were on 21 July held by solicitors for Barbara Roth. As may be seen from the sequence set out above, however, there were on 21 July other obstacles in the way of Barbara Roth's attaining a legal title. The stamp duty had to be paid and the implication from the cheque requisition referred to above is that it was to be paid by the transferor, not the transferee; under the Stamp Act 1894 (Q.) s.4B both appear to be liable. More importantly, the defendant did not himself have title. The land was still registered in the name of the vendor to him. The evidence, and in particular exhibit 9, showed that the solicitors for that vendor were acting as agents for Messrs. Adamson, Kyle 17. and Jones in relation to the stamping and registration of the transfers to the defendant. Counsel for the defendant argued, in effect, that there was a chain of agency and that those solicitors held the certificates of title on 21 July for Messrs. Adamson, Kyle and Jones, who were acting for Barbara Roth. Therefore, 1t was argued, Barbara Roth, by her agents, had the certificates of title. Before expressing my view about that argument, it 1s necessary to refer to some other evidence. On 22 July 1986, Mr. R.J. Bromwich, a solicitor acting in the matter on the side of the applicant, had a canversation with the then Sydney solicitor acting for the defendant and was told that "the four Queensland properties were transferred on 15 July 1986" and that the defendant had anstructed one Roger Cannon to act for him in Queenland. Mr. Bromwich then spoke to Mr. Cannon and referred to the orders of Beaumont J. Mr. Camnon said, among cther things: "T have told the people who have the documents to take no further action regarding the stamping of documents. There 1s nothing wrong with all this, 1t's just making sure that he has money to pay legal expenses ... he has business transactions ... He has renovations to the house. The builder has done the work, he deserved to be paid, he has been paid. Anyway, 1t 1S impossible to get money out of the Official Trustee ... As it is he will probably have to sell one of the blocks of land to pay his legal expenses." The conversation is consistent not only with the transfers having taken place for the purpose of meeting the r 18. defendant's expenses, but also with his still having de facto control of the land. His father, Mr. H.O. Cox, gave evidence referring to the transfers to Barbara Roth and said: "See, originally the transfer was to be into my name, but because I am on a pension they would have affected under the assets test ---" This appears to be in accord with the notion that the identity of the transferee was irrelevant as long as he or she was a member of the family. Mr. Cox also gave evidence, by affidavit, that he had been told by Barbara Roth that she intended to mortgage some or all of the land referred to in the memoranda of transfer to borrow money for the purpose of paying the defendant's expenses. The affidavit then set out a list of the expected expenses, such as legal costs, living expenses and the like. Each transfer was at a consideration stated to be a dollar. Although the evidence 1s fairly skimpy, neither junior counsel troubling to ask Mr. H.O. Cox how it came to be made, I infer from the material that it was made on the basis that the whole beneficial interest remained in the defendant. There 1s no direct evidence as to what communications (if any) occurred between the defendant or anyone on his behalf and Barbara Roth with respect to the land before the transfers were executed, but the whole of the circumstances point to the transfers having been made for no purposes other than those of the defendant, and on the basis that the transferee was not free to deal with the property for her own purposes. It is not, of course, necessary to go so far, for there is a presumption that Barbara Roth holds for the 19. defendant: Napier v. Public Trustee (W.A.) (1980) 32 A.L.R. 153 at p.158. Further, in my opinion, there is no evidence that anyone held the relevant certificates of title for Barbara Roth. Counsel for the defendant relied upon the fact that there was evidence from which (in my view) 1t should be inferred that Adamson, Kyle and Jones executed each transfer as solicitors for Barbara Roth as being "correct for the purpose of registration", as required by s.139 of the Real Property Act 1861. Plainly, they so executed the documents in anticipation of their being lodged for registration, but there 1s no evidence that at the time they did so, or any later time, they held the transfers as solicitors for her rather than as solicitors for the transferor, the defendant; as pointed out above, after execution of the transfers, they were having them stamped with funds obtained from the defendant. The certificates of title seem on 21 July 1986 to have been held by the solicitors for the vendor to the defendant, on behalf of the defendant. There is no evidence that they were then held on behalf of Barbara Roth, of whom those solicitors knew nothing. I therefore hold that as at 21 July 1986 the whole beneficial interest in each of the three pieces of land was vested in the defendant; the legal interest was then still in the vendor to the defendant. It should be added that the matter was argued before me on the assumption that it was necessary to show that possession of the certificate of title passed to Barbara Roth, in view of the 20. gratuitous nature of the transfers. Brunker v. Perpetual Trustee Company (Limited) (1937) 57 C.L.R. 555, 1llustrates the proposition that the fact that a merely nominal consideration is stated does not take the case out of the rules governing gratuitous dispositions. What is not quite so clear is whether the assumption made is correct; as will appear, I think it is. Section 200 of the Property Law Act 1974 (Q.) makes a voluntary assignment of property effective and complete in equity when the assignor has done everything to be done by him in order to transfer the property, thus settling the law in this State in favour of the views expressed by Griffith C.J. in Anning v. Anning (1907) 4 C.L.R. 1049. Mr. Seddon in his article in 48 A.L.J., "Imperfect Gifts of Torrens Title Land", suggests at p.18 that where the relevant Act requires it, 1t would be necessary for the donee tc have possession, or at least be able to obtain possession of the certificate of title. But as the author says: "This means that the test in such a case is slightly more stringent than that laid down by Griffith C.J. an Anning v. Anning for the assignment of land under the Torrens system." The relevant passage 1s to be found in the report of Anning v. Anning 4 C.L.R. (Pt.2) at p.1057. Under the basic Queensland Torrens statute, the Real Property Act 1861, a certificate of title must be produced for registration of a memorandum of transfer: s.49, unless production is dispensed with under s.95. Applying the rule set out in s.200 of the Property Law Act, it appears that on 21 July the defendant had still to obtain the certificate of title in respect of each , 21. piece of land to complete the assignment; Barbara Roth had no right to obtain them. The test in s.200 of the Property Law Act was not satisfied. As to the fourth piece of land, being a property known as 8 Idolou Court, Mudgeeraba, no different conclusion is warranted. The only significant distinction 1s that there was no evidence, nor attempt ta account for the absence of evidence, as to the location of the certificate of title. Iam therefore of the opinion that 'all the land in question was, within the meaning of the relevant Division, owned by the defendant at the date of the first relevant order of Beaumont J. - 1.8. 21 July 1986. It should be added that I have considered the question of ownership of property oon the basis that 1t 1s not enough for the applicant to show that there 18 a serious question to be tried, or a prima facile case with respect to the ownership of property. As pointed out above, if an order is sought with respect to specified property only, an affidavit as to belief 1s sufficient, but there is no such resource available to an applicant where, as here, there is a dispute as to what property 1S properly caught by an order under s.243E(2)(c)(11). It was argued by the applicant that the orders made by Beaumont J. were interlocutory for the purpose of the application to set them aside: see 0.35, r.7(2)(c). The correctness of that contention is open to debate, for Division 3 of the Customs Act seems to have its own self-contained code as to such matters, inconsistent with 22. the existence of a general power of revocation: see s§.243H. Although the orders of Beaumont J. were interlocutory in the sense that they did not determine the principal application, even such orders may, in some respects, have final effect: Neale v. Lady Gordon Lennox (1902) 1 K.B. 838 at p.845. One starts from the proposition that this Court's jurisdiction under the statute relates only to property of the defendant, from which it follows that unless property 1s shown to be of that description, no order may be made in relation to ut. Although that position is substantially alleviated in applications under sub-para.(c)(1), that does not imply any improvement of the applicant's position under sub-para.(c)(11). In my opinion, subject to the reservation just mentioned, the Court may not make an order having the effect of directing that particular property be taken into control without proof that 1t 1s the defendant's property. i have held that such proof, as to the disputed land, exists, although that does nct bind Barbara Roth. Verified Statement The last question raised concerned an order made by Beaumont J. under s.243F(1), the opening portion of which is referred to above. Under the provision, Beaumont J. was empowered to make an order: "(d) directing the defendant to furnish to the Official Trustee, within a time specified in the order, a statement, verified by the oath or affirmation of the defendant, setting out 23. such particulars of the property of the defendant as the Court deems proper;". The point taken on behalf of the defendant was that the direction under this provision does not expressly, or by necessary implication, overrule the privilege against self-incrimination, that the defendant insisted on that privilege, and that the circumstances were such as to make his claim a credible one. There is nothing in the Act to say whether or not the privilege against self-incrimination applies, and attention was drawn to the contrast between (d) (above) and (e) which reads as follows: "for the examination of the defendant or another person before the Court or the Registrar of the Court concerning the nature and location of the property of the defendant; or". It 18S specifically provided with respect to an examination of this kind that a statement or disclosure made in the course of it 1s not admissible in civil or criminal proceedings except - (a) in a proceeding for giving false testimony in the course of the examination; or (b) ina proceeding for the recovery of a pecuniary penalty for the purpose only of facilitating the assessment of the amount of the pecuniary penalty. Gibbs C.J. in Sorby v. The Commonwealth (1983) 57 A.L.J.R. 248 said: 24. ° "The mere fact that the witness swears that he believes that the answer will incriminate him is not sufficient; 'to entitle a party called as a Witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer': Req. v. Boyes, E1861] 1 B.& S. 311 at pp.329-330." Here, although the defendant has not sworn that the information is such as to put him in danger, 1t seems to me clear enough that there 1s reasonable ground for the claim. According to the information placed before me, shortly before the period charged, the defendant was in apparently modest circumstances, and afterwards he had substantial assets. It 1s true that there appears to be ample evidence available to prove the latter point, but I do not think that should induce me to hold that the making of such a statement as was ordered by Beaumont J. does not give "reasonable ground to apprehend danger" to the defendant. Although the privilege against self-aincrimination has become deeply ingrained in the common law, the practical outcome of the cases is not such as to show that a very strong indication in such a statute as this 1s needed to warrant a holding that the privilege has been overriden. This "fundamental ... bulwark of liberty" (see Pyneboard v. Trade Practices Commission 45 A.L.R. 609 at p.617) will be impliedly excluded - "Je. if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in 25. the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation." It does not appear to me that the sentence last quoted is intended to be an exhaustive statement of the circumstances in which it should be held that the obligation "was not intended to be subject to any qualification". Here, 1t could hardly be said that the offences in question "lie peculiarly within the knowledge" of the defendant; that 1s not typically so in such cases as these, and the evidence here suggests that other incriminating circumstances may be able to be proved. Other recent decisions of the High Court have a tendency against the defendant in this case: Mortimer v. Brown (1970) 122 C.L.R. 493 (public examination under the Companies Act), Controlled Consultants v. Corvorate Affairs Commissioner (1985) 59 A.L.J.R. 254 (production of books under the Securities Industry Code) and Police Service Board v. Morris (1985) 58 A.L.R. 1 (internal police inquiry). It may be that some policy considerations intrude; for example, the emphasis on the importance of a good police force, in the last~mentioned case, 15 to be noted. It appears to me, however, that the problem in the instant case may be solved as a matter of construction without reliance upon any inclination to advance the legislative remedy. Although, as pointed out by the High Court in R. v. Smithers (above), proceedings for a pecuniary penalty under Division 3 may be brought against persons not guilty of any offence, those who become defendants are likely to be at least in peril of 26. prosecution. In relation to narcotics importations, evidence of a substantial increase in net worth following on the occurrence of the matters charged would, in general, be likely to assist the Prosecution case. Typically, and not unusually, revelation of the extent of the defendant's property is likely to give "reasonable ground to apprehend danger" to him. In those circumstances, it seems unlikely that the legislative intention was that the defendant should be entitled to refuse to supply a statement under s.243F(1)(d) on the grounds of likely self-incrimination. I reject this basis of attack on the order of Beaumont J. Summary and Conclusion I have expressed the views that: (i) The operation of the relevant provisions 1s constitutionally valid. (ii) The four pieces of land in question were, at the date of the order of Beaumont J., the property of the defendant. (izi) The order of Beaumont J. with respect to furnishing a statement should not be set aside. It seems to me, however, appropriate in accordance with the views expressed above, to vary the form of the order of Beaumont J. with respect to the four pieces of land, and that I propose to do. 27. The only other matter raised concerned an application with respect to costs; the respondent did not object to the making of an order designed to provide funds for the defendant's iegal costs. Without deciding whether or not I would, were the matter contested, have made an order in the proposed form, that order will also be made. Subject to any contention to the contrary, the defendant must pay the costs of these applications. + certify that this and the %© preceding pages are a true copy of th2 reasens for jud-reent herein of His Honour Mr Justice Pincus 2 Luft My Bye ps " Associate Dated 2¢ bccernruen 178E Counsel for the Applicant: I. Temby Q.C. with J. Miller Solicitors for the Applicant: Dicector of Public Prosecutions Counsel for the Respondent. C. Waterstreet Solicitors for the Respondent: Watsons Date/s of Hearing: 10, 11 December 1986