Zes a IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G57 to G61 of 1987 GENERAL DIVISTON ) BETWEEN: DANELLE DOBINSON DILLON Applicant AND: LUKE LAWRENCE CHIN Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 19 JUNE 19987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: The application for an order that Luke Lawrence Chin surrender his passport to an authorized officer of the Trade Practices Commission be dismissed. Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. [ej FEDERAL court of rey AUSTRALIA PAINCIPAL REGISTRY A. rTTGs IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G57 to G6l of 1987 GENERAL DIVISION ) BETWEEN: DANELLE DOBINSON DILLON Applicant AND: LUKE LAWRENCE CHIN Respondent PINCUS J. 19 June 1987 EX TEMPORE REASONS FOR JUDGMENT This 1s an application made in each of five matters for an order that the respondent, Luke Lawrence Chin, surrender his passport to an authorized officer of the Trade Practices Commission upon his arrival at Brisbane International Airport. The principal matters are prosecutions under the Trade Practices Act, the first of which is a sufficient sample. It 1s alleged in a summons filed on 16 April 1987 that the respondent was guilty of an offence under s.79 of the Trade Practices Act 1974, in that he was knowingly concerned in a contravention of s.53(c) of the Act by Kingly Commodities (Qld.) Pty. Ltd., whereby Kaingly, in trade or commerce in connection with the promotion of the supply of services, represented that services had certain benefits which they did not have. Particulars are given, the essence of which is that the respondent offered to manage the investment by a named person of money in commodity futures by making misleading statements directed, speaking generally, to the question of the risk of loss, and to the part Kingly Commodities (Qld.) Pty. Ltd. would take in the proposed transactions. An affidavit has been filed by Mr. T.J. Guthrie, assistant director, Consumer Protection, of the Trade Practices Commission. He mentions the commencement of the proceedings, and says that the respondent was an account executive in the company I have mentioned - Kingly Commodities (Qld.) Pty. Ltd. The affidavit goes onto say that the respondent left Australia in early February 1987 for the Phillipines, where he has since resided, that information 1s available that he knows of the information and summonses, that the Australian Federal Police have advised Mr. Guthrie that the respondent will be declared "persona non grata" by the Philippine authorities because of the proceedings in this Court, and that they will be attempting to put him on a flight to Brisbane to arrive tomorrow morning. Mr. Guthrie goes on to say that he thinks that the respondent will not stay in Australia and that Kingly Commodities, the company I have mentioned, has branches at various places in Asia. There is no evidence before me as to whether the case brought against the respondent has any substance, but I am content to proceed on the assumption that it does. The most relevant provision of the Trade Practices Act, s.79, makes it an offence, putting it briefly, to contravene or take part in the contravention of certain provisions of Part V of the Act, including the one relevant here - s.52 paragraph (c). The offence is punishable on conviction by a fine and under s.79A there is provision for working out the term of imprisonment for non-payment of the fine. It may be that, if the proceedings are ultimately successful, the respondent will be fined or not pay the fine and will be imprisoned. At present, however, he 1s under no legal obligation to remain in this country and would be under no-= such obligation were he served with the proceedings; that 1s, 1t 1s not suggested that there is any intention of arresting the respondent, assuming that there was a right to do so. The state into which it 1s intended to bring him 15. one of what might be called loosely "movement restriction" by abstraction of his passport. No authority has been cited, nor has any reference been made to any provision of a statute, which might authorise the making of this sort of order. It seems to me that it might possibly be made under s.23 of the Federal Court of Australia Act 1976, which says: "The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate." "OER Assuming in favour of the applicant that there is power to require the surrender of the passport, one wonders precisely what the point of it is, other than, so to speak, to put pressure on the respondent. He would still be under no obligation to take any notice of the proceedings and the problem of extracting the amount of a fine from him if he were convicted would still exist. More importantly, it seems to me that one should not routinely, simply because a person is prosecuted for an offence under the Trade Practices Act, insist that he not leave the country. It may be that in some cases where the facts were shown to be that some outrageous fraud had been perpetrated or at least a prima facie case to that effect had been adduced, such an order could be made. But here it is not suggested there 1s anything special about the matter other than that Mr. Chin has been prosecuted. In these circumstances I do not see that there 1s any possible justification for making the order sought, assuming I had the discretion to do so, and the application will therefore be refused. 1 2 1 certify that this and the ~> preceding pages are a true copy of the reasons for judgment herein of H:s Honour Mr Justice Pincus tty Associate Dated (9 June 1987