Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Hung Sun Choi [2012] NSWSC 658 Hearing dates: 5 June 2012 Decision date: 15 June 2012 Before: McCallum J Decision: Orders made under the Criminal Assets Recovery Act for the examination of the defendant and for the provision of a verified statement of property Catchwords: CIVIL LAW - criminal assets recovery - application by New South Wales Crime Commission for examination of defendant and provision of verified statement of property - defendant facing serious criminal charges - whether examination order would create real risk of interference with administration of justice - risk of interference to be assessed in statutory context - application granted Legislation Cited: Australian Crime Commission Act 2002 (Cth) Civil Procedure Act 2005 Companies Act 1961 (Qld) Crimes Act 1900 Criminal Assets Recovery Act 1990 Evidence Act 1958 (Vict) Royal Commissions Act 1902 (Cth) Uniform Civil Procedure Rules 2005 Court Suppression and Non-Publication Orders Act 2010 Cases Cited: Australian Crime Commission v OK (2010) 185 FCR 258 Hamilton v Oades (1989) 166 CLR 486 Hammond v Commonwealth of Australia (1982) 152 CLR 188 NSW Crime Commission v Lee [2011] NSWSC 80 Rees v Kratzmann (1965(=) 114 CLR 63 Mortimer v Brown & Beames (1970) 122 CLR 493 Category: Interlocutory applications Parties: New South Wales Crime Commission (plaintiff) Hung Sun Choi (defendant) Representation: Counsel: R Bromwich SC for the plaintiff Mr Mark Yum for the defendant (only on adjournment application) Solicitors: New South Wales Crime Commission (plaintiff) Consolidated Lawyers (defendant) File Number(s): 2012/26772 Publication restriction: None Judgment 1HER HONOUR: These are proceedings brought by the New South Wales Crime Commission under the Criminal Assets Recovery Act 1990. The final relief sought by the Commission is a confiscation order relating to the "unexplained wealth" of the defendant: s 28A of the Act. This judgment determines the Commission's application by notice of motion for ancillary orders in aid of that claim, including an examination order and an order directing the defendant to provide a verified statement of property under s 31D of the Act. Background - criminal proceedings against the defendant 2The proceedings arise out of the defendant's arrest on 22 November 2011. Police allege that, on that date, the defendant went to a cafeteria in Burwood carrying an airline travel bag, which he placed on the floor. The defendant asked an employee at the cafeteria if he could use a pay phone. He was told that the closest pay phone was at a nearby shopping mall. 3It is alleged that the defendant then put his hand into a bag being held by a woman standing next to him at the counter of the cafeteria (perhaps trying to find a phone). The woman's reaction to that event caused him to flee from the cafeteria, leaving the airline travel bag behind. The bag was found to contain $686,120 in cash together with travel documents in the name of the defendant. He was arrested later that day after being found sitting in the gutter in the rain. Upon being approached by police, he freely identified himself. Police allege that he gave his occupation as "drug dealer". He denies making that statement. 4In relation to his possession of the cash in the travel bag, the defendant was charged with an offence of money laundering contrary to s 193B of the Crimes Act 1900; an offence of dealing with property suspected of being the proceeds of crime contrary to s 193C of the Act (presumably an alternative to the money laundering charge) and an offence of being in possession of property reasonably suspected of being stolen or otherwise unlawfully obtained contrary to s 527C of the Act (presumably a further alternative charge). Concurrent civil proceedings under the Criminal Assets Recovery Act 5On 27 January 2012 the Commission commenced these proceedings under the Criminal Assets Recovery Act. That Act creates a series of statutory civil remedies by which the Commission can pursue the confiscation of what might loosely be termed ill-gotten gains. The objects of the Act expressly contemplate the pursuit of those remedies without requiring any criminal conviction: s 3(a) of the Act. 6There are three kinds of confiscation order provided for under the Act. Each requires an application to the Supreme Court. One kind of confiscation order is an "unexplained wealth order" under s 28A of the Act requiring a person to pay to the Treasurer an amount assessed by the court as the value of the unexplained wealth of the person. That is the relief sought in the present proceedings. 7The legislature clearly intended by the Act to provide effective and efficient statutory mechanisms for the confiscation of proceeds of crime and, to that end, saw fit to confine the powers of this Court, and the rights of defendants, closely. That is plain not only from the objects of the Act set out in s 3 but also from many provisions of the Act itself. 8As to unexplained wealth orders, s 28A(2) provides that the Court "must" make such an order if the Court finds that there is a reasonable suspicion that the person against whom the order is sought has engaged in a serious crime related activity (as defined in the Act) or has acquired serious crime derived property from any serious crime related activity of another person. Curiously, the circumstance that enlivens the requirement to make such an order (a finding of reasonable suspicion) differs from the two other kinds of confiscation order. Those provisions also speak to the Court in mandatory terms, but require proof on the balance of probabilities of serious crime related activity: see s 22(2) dealing with assets forfeiture orders and s 27(2) dealing with proceeds assessment orders. What is plain in any case is that the Act mandates the making of confiscation orders on the strength of evidence well short of proof beyond reasonable doubt. 9Upon the making of an unexplained wealth order, the onus of proof falls upon the defendant to prove on the balance of probabilities that the current or previous wealth (as identified in evidence provided by the Commission) of the person is not or was not illegally acquired property or the proceeds of an illegal activity: s 28B(3) and (5). Any part of the wealth of the person as to which that onus is not discharged is assessed to be "unexplained wealth" and is required to be paid to the Treasurer in accordance with the unexplained wealth order. 10Section 31D of the Act confers additional powers on the Court ancillary to an application for a confiscation order. Sections 31D(1)(a) and (c) provide: (a) an order for the examination on oath of: (i) the affected person, or (ii) another person, before the Court, or before an officer of the Court prescribed by rules of court, concerning the affairs of the affected person, including the nature and location of any property in which the affected person has an interest, .... (c) an order directing a person who is or was an affected person or, if the affected person is or was a body corporate, a director of the body corporate specified by the Court, to furnish to the Commission, within a period specified in the order, a statement, verified by the oath of the person making the statement, setting out such particulars of the property, or dealings with the property, in which the affected person has or had an interest as the Court thinks proper. Relief sought by the Commission 11The present application invokes those provisions. The first three orders sought in the notice of motion are: 1.An order pursuant to section 31D(1)(a) of the Criminal Assets Recovery Act 1990 that the Defendant, Hung Sun Choi, be examined on oath before a Judge or Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest, including any interest in the property described in Schedule One below. 2.An order that leave be granted to the Plaintiff to obtain from the Registry dates for the conduct of the above examination. 3.An order pursuant to section 31D(1)(c) of the Criminal Assets Recovery Act 1990 that the Defendant, Hung Sun Choi, furnish to the Plaintiff, within 21 days of the making of this order, a statement verified by oath or affirmation, setting out the particulars in Schedule Two below. 12The "property described in schedule one" (referred to in order one) is the cash located in the bag allegedly left by the defendant at the cafeteria in Burwood. The particulars sought in schedule two (referred to in order two) expressly include "full particulars of the source of the monies described in schedule one". Accordingly, there is no ambiguity in the fact that the orders sought would compel the defendant to answer questions on oath, and to provide a verified statement, concerning matters in issue in the prosecution of the criminal charges against him. 13The Commission also seeks further relief (prefaced by some unusual commentary) as set out below: AND ONLY IF IT IS NECESSARY in order that the examination order sought in paragraph 1 above be made, or that the verified statement order sought in paragraph 3 above be made, that either or both of the following orders be made: 4.An order pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010, that any evidence given by the Defendant at his examination pursuant to section 31D of the Criminal Assets Recovery Act 1990 is not to be published, as defined in section 3 of the Court Suppression and Non-publication Orders Act 2010, or disclosed by any person other than: (a)for the purposes of these proceedings; or (b)for the purposes of investigating or prosecuting an offence in respect of any false or misleading evidence given by the Defendant at his examination, until further order of the Court, upon the ground that this order is necessary to prevent prejudice to the proper administration of justice in relation to criminal proceedings against the Defendant that are pending. 5.An order pursuant to section 71 of the Civil Procedure Act 2005, that the examination of the Defendant pursuant to section 31D of the Criminal Assets Recovery Act 1990 shall be conducted in the absence of the public and only the following persons shall be permitted to attend any such examination: (a)the legal representative/s and Forensic Accountant for the Plaintiff; (b)the legal representative/s for the Defendant; (c)Court staff; and (d)Corrective Services officers responsible for the custody of the Defendant, if he is remanded in custody at the time of his examination, upon the ground that the presence of the public would defeat the ends of justice. 14As will be apparent from the reasons that follow, I do not consider it necessary to make such orders and in my view it would be premature to do so at this stage. I would not wish that conclusion to be taken as suggesting that such orders would not be appropriate at some point in the future. Hearing of the Commission's motion in the absence of the defendant 15The Commission's motion was made returnable on 28 May 2012. On that date, it was stood over to 5 June 2012, expressly with a view to being referred to the Duty Judge on that occasion. The defendant was represented by a solicitor when that order was made. 16On 5 June 2012 the motion was referred to me as Duty Judge. When the matter was called, Mr Yum, an employee of the solicitor on the record for the defendant, asserted that he was appearing as amicus curiae and sought an adjournment. 17I do not think it was correct for Mr Yum to say, when he first rose to his feet, that he was appearing as amicus curiae. An appearance had been filed and the solicitor in question had not filed a notice of ceasing to act in accordance with the rules. Whatever the position privately between the defendant and the solicitor, the solicitor remains on the record so far as the Court is concerned. 18The basis for the application for an adjournment was that an application for legal aid had recently been refused and the defendant had not paid the funds required by the solicitor on account of his fees. I refused the adjournment. In doing so, I had regard to the overriding purpose of the rules, the fact that the matter had previously been adjourned at the request of the defendant and the fact that the Commission, as an arm of the State, is required to act as a model litigant and was represented by experienced counsel of the highest integrity. 19Upon my refusing the adjournment sought, Mr Yum sought leave under r 7.29 of the Uniform Civil Procedure Rules 2005 to file a notice of ceasing to act notwithstanding the fact that the defendant had not been given notice of the solicitor's intention to do so in accordance with the rules. In the absence of any evidence in support of that application, I refused it. In doing so, I noted that the rule is concerned only with the requirement of notice and the status of the solicitor in question as solicitor on the court record. The refusal of such an application does not determine any question as to the propriety of the solicitor's terminating his retainer. 20In the circumstances, I considered it appropriate to excuse Mr Yum from further attendance at the hearing and to proceed in the absence of the defendant. Considerations against granting the relief sought 21Mr Bromwich SC, who appeared for the Commission, was properly frank in exposing reasons the Court may not be inclined to grant the relief sought. He drew my attention to the decision of R S Hulme J in NSW Crime Commission v Lee [2011] NSWSC 80, which stands as authority against the present application. In that case, the Commission sought examination orders against four defendants, two of whom had been charged with criminal offences. It was not disputed that an examination in the terms ordered would permit questioning in respect of matters relevant to the criminal charges. His Honour concluded that no examination orders should be made against those two defendants at that stage: at [21]. 22Mr Bromwich informed me that the decision in Lee is the subject of an appeal which is due to be heard in August by the Court of Appeal with a bench of five. I do not understand there to be any practice or policy that would require me to defer giving judgment in the present case on that account. 23Mr Bromwich submitted that Lee was wrongly decided. The submission requires some explanation. 24In refusing to make the examination orders sought in respect of the two defendants who had been charged with criminal offences, Hulme J considered the decision of the High Court in Hammond v Commonwealth of Australia (1982) 152 CLR 188 and the decision of the Full Court of the Federal Court of Australia in Australian Crime Commission v OK (2010) 185 FCR 258. His Honour held at [20] that the circumstances before him were governed by the decision in Hammond rather than the decision in Australian Crime Commission v OK. 25In Hammond, the High Court granted an injunction in its original jurisdiction to restrain the examination on oath of the plaintiff, Mr Hammond, at a Royal Commission until the hearing and determination of criminal charges against him. The application was determined on an urgent basis. Accordingly, the Court was constrained to assume, without deciding, that under the Royal Commissions Act 1902 (Cth) and the Evidence Act 1958 (Vict), a witness who refuses to answer a question relevant to an inquiry is guilty of an offence and that he is not entitled to refuse to answer on the ground that an answer might incriminate him (at 197.7 to 198.3 per Gibbs CJ; Mason J agreeing at 199; at 200.3 to 201.6 per Murphy J; at 202 per Brennan J; at 209 per Deane J). 26On the assumptions made, the Court held that the continuance of Mr Hammond's examination before the Royal Commission would interfere with the due administration of justice, even though his answers would not be admissible in evidence against him in the criminal proceedings. 27In Australian Crime Commission v OK, the Full Court of the Federal Court was concerned with the question whether an examiner of the Australian Crime Commission conducting an examination under the Australian Crime Commission Act 2002 (Cth) as part of an investigation into criminal activity could compel a witness to answer questions that related directly to criminal charges against that person in a State criminal court. The Court held by majority that, on its true construction, the Act permits such an examination to continue so long as the protective prohibitions contemplated by ss 25A(3) and (9) have been put place: per Emmett and Jacobson JJ at [107]; Spender J dissenting at [12] to [13]. 28The "protective prohibitions" relied upon in the reasoning of the majority provided that an examination before an examiner had to be held in private and allowed the examiner to give directions as to the persons who may be present during the examination (s 25A(3)) and, further, enabled an examiner to direct that any evidence given before the examiner must not be published or must not be published except in such manner and to such persons as the examiner specified (s 25A(9)). It is on the basis of that reasoning that the Commission seeks orders 4 and 5 set out above in the present application. 29In Lee, the defendants argued, on the reasoning of the High Court in Hammond, that no orders could be made for the examination of the two defendants facing criminal charges, since such examinations would create a real risk of interference with the administration of justice. 30The Crime Commission responded by relying on the decision of the majority in Australian Crime Commission v OK and the provisions of ss 13A and 62 of the Criminal Assets Recovery Act. Section 13A deals with the topic of privilege against self-incrimination. The section expressly abrogates the privilege but provides that the answers given may not be used against the person in criminal proceedings (subject to the usual exception). Importantly, however, the section does not confer derivative use immunity. 31The section in full provides: 13A Privilege against self-incrimination (1) A person being examined under section 12 is not excused from answering any question, or from producing any document or other thing, on the ground that the answer or production might incriminate, or tend to incriminate, the person or make the person liable to forfeiture or penalty. (2) However, any answer given or document produced by a natural person being examined under section 12 is not admissible in criminal proceedings (except proceedings for an offence under this Act or the regulations) if: (a) the person objected at the time of answering the question or producing the document on the ground that the answer or document might incriminate the person, or (b) the person was not advised that the person might object on the ground that the answer or document might incriminate the person. (3) Further information obtained as a result of an answer being given or the production of a document in an examination under section 12 is not inadmissible in criminal proceedings on the ground: (a) that the answer had to be given or the document had to be produced, or (b) that the answer given or document produced might incriminate the person. (4) A person directed by an order under section 12 to furnish a statement to the NSW Trustee and Guardian or the Commission is not excused from: (a) furnishing the statement, or (b)setting out particulars in the statement, on the ground that the statement or particulars might incriminate, or tend to incriminate, the person or make the person liable to forfeiture or penalty. (5) If a person furnishes a statement to the NSW Trustee and Guardian or the Commission in accordance with an order under section 12, the statement is not admissible against the person in any criminal proceedings except proceedings in respect of the false or misleading nature of the statement. 32The other section relied upon by the Commission in Lee was s 62 of the Act. That section has since been repealed as part of the reforms introduced by the Court Suppression and Non-Publication Orders Act 2010. A power to afford like protection may be found in s 7 of that Act, which provides: 7 Power to make orders A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of: (a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or (b) information that comprises evidence, or information about evidence, given in proceedings before the court. 33The reasoning of Hulme J hinged on the absence of derivative use immunity under s 13A of the Act. His Honour said (at [19]): No doubt the possibility that publication would run the risk of prejudicing the fair trial of a person examined under the Act would provide a strong reason for any court asked to make an order under s 62 to make one in sufficient width to minimise that risk. However, there might be competing considerations and it cannot be said that s 62 goes as far as does s 25A of the Australian Crime Commission Act 2002 (Cth) in requiring the relevant person to give a direction limiting publication if a failure to do so might prejudice a fair trial. 34It was on that basis that his Honour concluded that the circumstances of the application before him were governed by Hammond rather than by Australian Crime Commission v OK. 35With great respect to R S Hulme J, I am not persuaded that any less protection was afforded to the fair trial of a person under the now-repealed s 62 of the Criminal Assets Recovery Act than under s 25A(9) of the Australian Crime Commission Act. Section 25A(9) circumscribes the power of an administrative investigator by mandating the giving of a direction prohibiting publication of evidence given before the examiner if the failure to do so might prejudice the fair trial of a person charged with an offence. It may be acknowledged that s 62 was not in mandatory terms, but the power under that section was to be exercised by the Supreme Court. It may be taken as a given, in my respectful opinion, that the Court would make a direction prohibiting publication of evidence given during an examination in any case in which the failure to do so might prejudice the fair trial of a person charged with a criminal offence. 36I would respectfully conclude that the protection provided under s 25A(9) of the Australian Crime Commission Act and the protection now contained in section 7 of the Court Suppression and Non-Publication Orders Act are, for all practical purposes, indistinguishable. 37It does not follow, however, that I would adopt the reasoning of the majority in Australian Crime Commission v OK in determining the present application. That decision concerns a different statutory regime and is not binding in the present case. 38My conclusions on those issues leave open the critical question to be determined in this case, which is whether an examination order under s 31D(1)(a) of the Criminal Assets Recovery Act would create a real risk of interference with the administration of justice if made against a person facing criminal charges in respect of the same matters. 39In concluding that it would, Hulme J in Lee was not taken to the case of Hamilton v Oades, which was decided by the High Court after Hammond: (1989) 166 CLR 486. It may be noted that the Full Court of the Federal Court was also not taken to Hamilton v Oades when it decided Australian Crime Commission v OK. Consideration of Hamilton v Oades 40Hamilton v Oades was concerned with s 541 of the Companies (NSW) Code, which conferred power on the Court to order a person to attend Court to be examined in relation to the affairs of a company, including where it appeared the person may have been guilty of fraud, negligence, default, breach of trust, breach of duty or other misconduct in relation to the relevant company. 41Section 541(5) of the Code provided: The Court, on making an order for an examination, or at any later time, on the application of any person concerned, may give such directions as to the matters to be inquired into, and, subject to sub-section (4), as to the procedure to be followed (including, in the case of an examination in private, directions as to the persons who may be present), as it thinks fit. 42Mr Oades was facing 19 criminal charges in relation to the affairs of a company. He sought a direction under s 541(5) that the examination be restricted to matters which were not the subject of the pending criminal proceedings against him. The High Court held that s 541(12) of the Code abrogated the common law privilege against self incrimination and, accordingly, that neither s 541(5) nor the inherent jurisdiction of the Court to control its own proceeding authorised the Court to reject a question, or relieve a person from the duty to answer it, only on the ground that the answer may tend to incriminate the person. 43Mason CJ said (at 497.2): In the light of the statutory provisions and the public purposes which I have outlined, it would be going too far altogether to view the existence of the discretion [under section 541(5)] as requiring ordinarily the giving of directions which will protect the witness from the consequences of abrogation of the privilege insofar as they include the derivative use of the answers of the witness. To give such directions as a matter of course would be to frustrate the statutory purpose. Clearly the lengthy delay of an examination due to the pendency of criminal charges would be highly likely to frustrate the liquidator in the carrying out of his duties towards the company and the creditors by denying him the use of a major instrument in the tracing of assets. 44Dawson and Toohey JJ adopted similar reasoning (at pages 508 and 515 respectively). Dawson J considered the passage of the judgment of Gibbs CJ in Hammond where it was concluded that there was a real risk that the administration of justice would be interfered with. His Honour observed that those remarks were preceded by an observation as to the urgency with which the case was determined. 45Dawson J also observed that, in Hammond, earlier relevant authorities were not discussed, including Rees v Kratzmann (1965) 114 CLR 63 and Mortimer v Brown & Beames (1970) 122 CLR 493. Those decisions considered the proper scope of a public examination under s 250 of the Companies Act 1961 (Qld) in circumstances where the examinee had been or faced the prospect of being charged with criminal offences. 46Interestingly, Windeyer J in Rees traced the emergence of powers of compulsory interrogation in the public interest to the Chancery Court, where "the cherished view of English lawyers that their methods are more just than are the inquisitional procedures of other countries" had "less place": at 80.4. 47In Mortimer, the High Court held that an examinee under s 250 of The Companies Act may not decline to answer a question on the ground that the answer may tend to incriminate him. The judgments in that case give sober recognition to the obligation of the court to construe a statute so as to give effect to the clear intention of the legislature and without sentimental regard for any incursion upon centuries of closely guarded notions of criminal justice. 48Toohey J in Hamilton v Oades expressly adopted the reasoning of Barwick CJ in Mortimer and expressed the view that the decision of the High Court in Hammond does not stand in the way of that approach (at 515). 49It would plainly have assisted Hulme J in determining the Commission's application in Lee to be taken to the decision in Hamilton v Oades and the earlier authorities discussed in that case. Such assistance might also have produced different reasoning, if not a different result, in Australian Crime Commission v OK. 50My consideration of Hamilton v Oades and the earlier authorities there discussed has led me to the conclusion that I should not decline the relief sought by the Commission only on the basis that the orders sought will require the defendant to give verified answers as to matters relevant to the criminal charges against him. In my respectful opinion, Lee was wrongly decided (in the circumstance identified) and should not be followed. 51The Criminal Assets Recovery Act is replete with unambiguous indications that Parliament intended the Commission to be able to pursue confiscation orders notwithstanding the existence of pending criminal proceedings and with the aid of powers that would infringe upon a defendant's right to remain silent. 52As already noted, the objects of the Act expressly contemplate the pursuit of confiscation orders without requiring a conviction. Section 13A (set out above) clearly contemplates the conduct of an examination in circumstances in which self-incrimination may occur. There is no need to draw any inference as to Parliament's intention in that respect, as the High Court was prepared to do in Mortimer. The Act expressly abrogates the privilege and provides compensatory protection against direct use of the answers given. Whether to extend that protection to derivative use was a matter for Parliament, which it also addressed (s 13A(3)). Examination orders under s 31D are governed by those provisions (s 31D(3)) and so must also be taken to have been intended to be available in the face of pending criminal proceedings. It is also significant that the existence of criminal proceedings is not a ground on which this Court may stay proceedings under the Act: s 62. 53The risk of interference with the administration of justice must be assessed in that statutory context. In his dissenting judgment in Australian Crime Commission v OK, Spender J said (at [13]): In my judgment, whether the quarantining of information from those authorities is successfully able to be done is not the determining question. It is the compulsory interrogation of a person facing a criminal charge about that criminal charge, whether quarantined or not, that constitutes the interference with the administration of justice. (emphasis in original) 54However, as was acknowledged by the High Court in Hamilton v Oades, the legislature can authorise the compulsory interrogation of a person facing a criminal charge about matters relevant to that charge. As unpalatable as it may be to a common lawyer, the right to resist such interrogation invoking the privilege against self-incrimination is precisely what Parliament has abrogated by the legislation. It is the duty of the court to give effect to such legislation, which informs the assessment as to what the interests of the administration of justice demand. 55That is not to say that the court must always accede to an application by the Commission for ancillary relief. The making of orders under s 31D is discretionary, but the discretion must be exercised having regard to the objects of the Act. Without purporting to be exhaustive or prescriptive, I would have thought that the court could properly consider declining to make an order against a child or other vulnerable person or at a time so close to a jury trail that the conduct of the examination might impede the defendant's preparation for the trial. 56It must also be acknowledged that the court is not without power to protect the interests of the defendant in other ways. Foremost among the protections available are the powers of the Court under the Court Suppression and Non-Publication Orders Act and s 71 of the Civil Procedure Act 2005. Further, the Court can and should be vigilant to contain the questioning within the scope of the examination authorised under the legislation: cf Hamilton v Oades per Dawson J at 510.9. 57I have concluded, however, that it would not be appropriate to refuse to make the orders sought only on the basis that the examination would compel the defendant to answer questions relevant to the criminal proceedings against him. To do so would frustrate the clear purpose of the legislation. 58For those reasons, I am satisfied that it is appropriate to make orders in the terms of orders 1 to 3 sought by the Commission. I will ask the Commission to bring in short minutes of order in accordance with these reasons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2012