Re Peter John Bayliss Ex Parte: Hadotone Pty Ltd; Bek Pty Ltd; Mathoura Plant Hire Pty Ltd; Nichevo Nominees Pty Ltd; Nilac Pty Ltd; Bassoon Pty Ltd; Ronpet Nominees Pty Ltd; Used Quip Pty Ltd; Jochrisam Pty Ltd; Christopher John Bayliss [1987] FCA 209 (25 June 1987)

FEDERAL COURT OF AUSTRALIA

Re: PETER JOHN BAYLISS
Ex parte: HADOTONE PTY. LTD.; BEK PTY. LTD.; MATHOURA PLANT HIRE PTY. LTD.;
NICHEVO NOMINEES PTY. LTD.; NILAC PTY. LTD.; BASSOON PTY. LTD.; RONPET
NOMINEES PTY. LTD.; USED QUIP PTY. LTD.; JOCHRISAM PTY. LTD.; CHRISTOPHER JOHN
BAYLISS; PETER JOHN BAYLISS and MORRIS FLETCHER AND CROSS (A FIRM)
And: THE OFFICIAL TRUSTEE IN BANKRUPTCY (as Trustee of Peter John Bayliss a
bankrupt)
No. E(VIC) 302 of 1987
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND
Spender J.(1)

CATCHWORDS

Bankruptcy - search warrant - whether Court has power to issue warrants - Bankruptcy Act ss.30(1)(b) and 130 - power to issue warrant directed to property of parties other than the bankrupt in aid of investigative functions of Trustee.

Bankruptcy Act 1966, ss. 19, 30, 37, 77, 129, 130.

HEARING

BRISBANE
25:6:1987

Counsel for the applicant: Mr J.H. Byrne Q.C. and Mr D.J.S. Jackson instructed by Thomson Mann.

Counsel for the respondent: Mr R.N. Chesterman and Mr T.J. O'Donnell instructed by Breens

ORDER

The order of Mr Justice Pincus of 27 May 1987 authorising the issue of search warrants be set aside.

The Official Trustee in Bankruptcy pay the costs of the applicants to be taxed; those costs to be paid out of the administration of the Estate.

NOTE: Settlement and Entry of Orders is dealt with in Rule 124 of the Bankruptcy Rules.

DECISION

Peter John Bayliss is a well known Brisbane medical practitioner. He became a bankrupt on the making of a sequestration order in Melbourne on 23 March 1987. The Official Receiver in Bankruptcy is the trustee of the bankrupt's estate. According to the statement of affairs lodged by the bankrupt, his bankruptcy is a spectacular one. It shows his debts at about $4.8M and contingent liabilities of the order of $2M. His assets are shown as mainly unquantified and contingent on settlements of the sale of property in 1993 or thereabouts. On the other hand, an application for finance by the bankrupt in May 1983, signed by him contains a statement of assets of $1.1M and liabilities of $.42M, and an application in 1984 asserts an income of $300,000 p.a., and one statement of assets and liabilities furnished to Alliance Acceptance Co. Limited shows assets of $611,000 and liabilities of $20,000.

2. The Official Trustee asserts that in recent years the bankrupt has earned a very large income, and that his lifestyle is one of wealth and luxury. There is evidence that the bankrupt has set up a number of companies and trusts and that, while his children are shareholders and directors of these companies, the material shows that the bankrupt is a co-signatory of at least a number of those companies' accounts and, further, that cheques have been pre-signed by another signatory so as to give the bankrupt access to and de facto control of large sums of moneys.

3. On an ex parte application made by the Official Trustee to the Court, with material indicating a basis for the Official Trustee's suspicions, Pincus J. on Wednesday, 27 May 1987, ordered that warrants of search and seizure be issued in the form of warrants in the schedule to his order and that each of the warrants remain in force up to and including 5 June 1987; that any person executing any such warrants to discuss the matter with senior counsel for the Official Trustee prior to the execution of the warrant and that execution was to occur in the presence of an officer of the Director of Legal Services or the Official Trustee in Bankruptcy. He further ordered the costs of the application for the warrants to be taxed and paid out of the estate of the bankrupt.

4. Mr Patrick Allport, who is employed in the office of the Official Receiver in the Bankruptcy District of the Southern District of the State of Queensland, and who is most involved in the management of the estate of the bankrupt, makes it clear in one of his affidavits the purpose for the application for search warrants. He says:-

"21. So far as documentation which may appear to be

the property of the various companies is concerned,
it is my opinion that it is necessary for such
documentation to be obtained by my office for the
following purposes: -

(a) to establish what property belongs to the
bankrupt, and what property belongs to
various companies and trusts;

(b) to establish whether there were any
transactions between the bankrupt and those
companies or trusts that the trustee may be
able to avoid under s. 120 or s. 121;

(c) to see if the entire corporate structure is
a sham;

(d) so that the Official Trustee's Office can
trace moneys which it appears the bankrupt
received, such as the sum of FOUR HUNDRED
AND FOUR THOUSAND DOLLARS ($404,000.00) he
is said to have received for his half
interest in the property at Woolloongabba,
the amount he is said to have received in
respect of the sale of the Sunshine Coast
property, and the proceeds of sale of the
property at Ivanhoe in Victoria."

5. It is plain that the purpose of the warrants was to secure information to assist in the investigation and realisation of the bankrupt's property.

6. There was a total of 11 warrants. All of them authorise entry and search between 8.30 a.m. and 6.00 p.m. Two of the warrants are issued to Brisbane firms of solicitors, one to a Victorian firm of accountants, three to three branches of the National Australia Bank, one to the residential address of the bankrupt, another to his business address, and the remainder to other addresses in Brisbane and at Tweed Heads.

7. Each of the warrants is in similar form. Omitting formal parts, they read:-

"YOU ARE HEREBY AUTHORIZED at any time of the day
between 8.30 a.m. and 6.00 p.m. Eastern Australian
standard time, to enter and search the premises of
(then specifying the premises) and seize any
property or documents relating to the affairs of
Peter John Bayliss of 39 Griffith Street New Farm
Brisbane in the State of Queensland, and any
documents of the companies, which companies are
referred to in the schedule hereto, including
documents of those companies relating to trusts of
which any of the said companies may be a trustee
and documents of those companies relating to the
affairs of the bankrupt, excluding cash less than
$500.00, the said Peter John Bayliss having become
a bankrupt by virtue of the presentation of a
Creditor's Petition of the Bankruptcy District of
the State of Victoria on the 23rd day of March
1987 whether in the custody or possession of the
bankrupt or of any other person and any books of
account, bank books including bank statements,
pass books, pay-in books and the like, receipts,
business correspondence, diaries, files and
address books the property of Peter John Bayliss
or any of the companies referred to in the
schedule of companies annexed hereto and other
business or financial records of him or any of the
said companies, whether in the custody or
possession of Peter John Bayliss or any other
person, and for the purposes of the exercise of
the foregoing powers, to break open at the
aforesaid address any house, building, room or
receptacle of the bankrupt or of any company
referred to in the schedule hereto relating to
companies or any other person where the bankrupt
or any of his property is or where you have
reasonable cause to believe the bankrupt or any of
his property may be found
AND for so doing, this shall be your sufficient
warrant."

The Schedule reads:-

"SCHEDULE OF COMPANIES

HADOTONE PTY. LTD.
BEK PTY. LTD.
MATHOURA PLANT HIRE PTY. LTD.
NICHEVO NOMINEES PTY. LTD.
NILAC PTY. LTD.
RIDGEGREEN PTY. LTD.
BASSOON PTY. LTD.
RONPET PTY. LTD.
USED QUIP PTY. LTD.
JOCHRISAM PTY. LTD."

8. On 3 June 1987, each of the companies named in the schedule to the warrants and Christopher John Bayliss, a son of the bankrupt, applied to the Court for an order that the order of Mr Justice Pincus be discharged and set aside and, pending the determination of that application, that the Official Trustee by its officers, servants or agents be restrained from executing or further executing the warrants the subject of the application.

9. The bankrupt, on 9 June 1987, filed an application seeking an order that the eleven warrants of search and seizure issued pursuant to the order of Pincus J. on 27 May 1987 be set aside. Messrs. Morris Fletcher & Cross applied by an application filed on 9 June 1987 for an order that the warrant issued pursuant to the order of Pincus J. on 27 May 1987 and directed to the premises of Morris Fletcher & Cross be set aside.

10. The application to set aside the orders authorising the issue of the warrants originally came before Pincus J., who arranged for the applications to set aside the order authorising the warrants to come before me. I have had the benefit of full and considered argument from all sides and I am grateful to all Counsel for the assistance they have provided.

11. The point at issue, while important, is quite a short one. It is, however, necessary to refer to a number of provisions of the Bankruptcy Act 1966.

12. Division 4 of Part VI of the Act deals with realisation of property. Section 129 obliges the trustee forthwith to take possession of all the property of the bankrupt capable of manual delivery, including all deeds, books and documents of the bankrupt. Section 129(2) provides that the Court may, on the application of the trustee enforce possession accordingly. Section 129(3) is relevant to persons such as solicitors and accountants. It provides:-

"A person is not entitled, as against the trustee,
to withhold possession of the books of account or
any papers or documents of the bankrupt relating
to the accounts or to the trade dealings or
affairs of the bankrupt or to claim any lien on
any such papers or documents."

Section 129(5) and (6) provides that failure by persons or corporations to comply with some of the obligations of that section constitutes contempt of court.

13. Section 130 is directly relevant to these proceedings:-

"A person acting under warrant of the Court may
search for and seize property of a bankrupt in the
custody or possession of the bankrupt or of any
other person, and, for that purpose, may break
open any house, building, room or receptacle of
the bankrupt or any other person where the
bankrupt or any of his property is or is supposed
to be."

Rule 177 provides: "For the purposes of s.130 of the Act, a warrant shall be in accordance with Form 56". That Form, in turn, provides:-

"You are hereby authorized, at any time of the day
(or night), to enter and search (description of
the building or premises) and seize any property
of (full name, address and occupation of
bankrupt), a person against whose estate a
sequestration order was made by the (name of
court) on the day of 19 (or
who has become a bankrupt by virtue of the
presentation of a debtor's petition to the (name
of court) on the day of ,19 ), whether
in the custody or possession of the bankrupt or of
any other person, and, for the purposes of the
exercise of the foregoing powers, to break open
any house, building, room or receptacle of the
bankrupt or any other person where the bankrupt or
any of his property is or where you have
reasonable cause to believe the bankrupt or any of
his property may be found. And for so doing, this
shall be your sufficient Warrant."

14. It is to be noted that Rule 176 also deals with contempt of court.

15. Section 77 of the Act outlines the duties of a bankrupt concerning discovery of property. It provides, in part:-

"A bankrupt shall, unless excused by the trustee or
prevented by illness or other sufficient cause -

(a) forthwith after he becomes a bankrupt,
deliver to the trustee all the books,
documents, papers and writings in his
possession relating to his trade dealings,
property or affairs and, if he has a
passport, his passport."

16. A bankrupt who has concealed or, without the permission of the Trustee, removed any of his property, is liable to be arrested and dealt with by the Court and committed to gaol until the Court otherwise orders.

17. The trustee, too, has duties. Section 19 provides:-

"Where a person becomes a bankrupt, it is the duty
of the trustee -

. . .

(b) to ascertain the assets and liabilities of
the bankrupt;

(c) if the trustee, having regard to all the
circumstances of the case, considers it
desirable to do so, to investigate -

(i) the conduct, dealings, and
transactions of the bankrupt;

(ii) the cause of bankruptcy; and

(iii) the books, accounts and records
kept by the bankrupt,

and, if he conducts such an investigation, to file
with the Registrar a report showing the result of
the investigation;
. . ."

18. Section 58, in the circumstances of this case, vests the property of the debtor on his becoming a bankrupt forthwith in the Official Trustee.

19. As will be apparent from a comparison of the forms of the eleven warrants of search and seizure, authorised to be issued in this case in the statutory Form 56, the warrants related to documents other than the documents of the bankrupt. While a detailed analysis of the textural differences was embarked upon, senior counsel for the Official Trustee conceded that the warrants are more extensive than as authorised by s.130 of the Act. It was, however, sought to justify the issue of the warrants as being necessary for the purposes of the Bankruptcy Act 1966 and, in particular, necessary as an aid to the fulfilment by the trustee of the duties imposed on him by s.19(b) and (c).

20. The short question therefore is whether, pursuant to the powers given to the Court under s.30(1)(b), the Court has power to issue search warrants in the form that was authorised in this case.

21. Section 30(1) is in these terms:-

"The Court -

(a) has full power to decide all questions,
whether of law or of fact, in any case of
bankruptcy or any matter under Part X or
Part XI coming within the cognizance of the
Court; and

(b) may make such orders (including declaratory
orders and orders granting injunctions or
other equitable remedies) as the Court

considers necessary for the purposes of
carrying out or giving effect to this Act in
any such case or matter."

22. Is such a general power sufficient to justify the order for the issue of the warrants in this case?

23. Of s.30(1)(b), Neaves J. said in Re Bilen; ex parte Sistrom (unreported, 11 April 1985):-

"In my opinion sub-section 30(1) of the Bankruptcy
Act 1966 is not a provision limiting the Court's
jurisdiction. It is a facultative provision
giving the Court full power, within the limits of
its jurisdiction to be found elsewhere, to make
such orders as it considers should be made in
order to carry out and give effect to the Act.
The words used are not words of limitation but of
extension."

24. Section 130 of the Act specifically makes provision for warrants for the search for and seizure of property of the bankrupt and permits the search of premises of strangers, for property of the bankrupt. Section 69 provides for the compulsory examination of the bankrupt relating to his conduct, trade dealings, property and affairs. The bankrupt is obliged to answer all questions as the Court, the Registrar or the magistrate puts or allows to be put to him and, unless there is a direction otherwise, the bankrupt is not excused from answering any question by reason only of the fact that it might tend to incriminate him.

25. There is power under s.81 of the Act for the bankrupt, the spouse of the bankrupt, or a person who is known or suspected to have in his possession any of the property of the bankrupt, or is supposed to be indebted to the bankrupt or to be able to give information concerning the bankrupt or his trade dealings, property or affairs, to be summoned to attend to give evidence and produce any books (whether or not in existence at the time the bankrupt became a bankrupt) in his custody or power relating to the bankrupt or his trade dealings, property or affairs.

26. In the light of the provisions to which I have referred, it is submitted that the search warrants in the form authorised by Pincus J. on 27 May 1987 were not "necessary for the purposes of the Act". It is further submitted that there is no power in the Court to authorise the issue of warrants for the stated purposes, and in the form ordered, concerning the material specified, which includes property other than the property of the bankrupt.

27. The applications to set aside the warrants are based on s.37 of the Bankruptcy Act 1966 and on the inherent jurisdiction of the Court. Section 37(1) provides that, subject to circumstances which are not presently relevant, the Court may rescind, vary or discharge an order made by it under this Act or suspend the operation of such an order.

28. The Owners of the S.S. Kalibia v. Wilson [1910] HCA 77; (1910-11) 11 CLR 689, was an appeal from an order of Gordon J. refusing to discharge an order which had been made ex parte by Street J.. Griffith C.J. at p. 694 said of the proceedings that had occurred before Gordon J. :-

"A preliminary objection was taken before him by
the respondent that he had no jurisdiction to
entertain the application to discharge the ex
parte order. He held, and I entirely agree with
him, that when a judicial order has been obtained
ex parte the party affected by it may apply for
its discharge. This is an elementary rule of
justice, of the application of which familiar
instances are afforded by writs of ca.re. and ex
parte injunctions."

29. Each of the applicants for discharge of the order for the issue of the warrants is a person affected by that order and is therefore, in my opinion, competent to bring this application.

30. It is clear that there is no common law power to issue search warrants except for stolen goods. In the celebrated case of Entick v. Carrington [1765] EWHC J98 (KB); 2 Wils.K.B. 275; 95 ER 807, decided in 1765, the Court said at p 291; p 817:-

". . . our law holds the property of every man so
sacred, that no man can set his foot upon his
neighbour's close without his leave; if he does
he is a trespasser, though he does no damage at
all; if he will tread upon his neighbour's
ground, he must justify it by law. The defendants
have no right to avail themselves of the usage of
these warrants since the Revolution, and if that
would have justified them, they have not averred
it in their plea, so it could not be put, nor was
in issue at the trial; we can safely say there is
no law in this country to justify the defendants
in what they have done; if there was, it would
destroy all the comforts of society; for papers
are often the dearest property a man can have.
This case was compared to that of stolen goods;
Lord Coke denied the lawfulness of granting
warrants to search for stolen goods, for inst.
176,177, though now it prevails to be law; but in
that case the justice and the informer must
proceed with great caution; there must be an oath
that the party has had his goods stolen, and his
strong reason to believe they are concealed in
such a place; but if the goods are not found
there, he is a trespasser . . ."

31. In Baker v. Campbell [1983] HCA 39; (1983) 153 CLR 52, where the issue was whether s.10 of the Crimes Act 1914 excluded the application of legal professional privilege, Wilson J. said at p 96:-

"It is now necessary to decide whether resort to
the privilege has been abrogated by s. 10(b) of
the Crimes Act. The principle is clear. A
statute will not be construed to take away a
common law right unless a legislative intent to do
so clearly emerges whether by express words or
necessary implication: Sorby v. The Commonwealth
[1983] HCA 10; (1983) 152 CLR 281, at pp 309-310, and the
authorities there cited. Here we have a perfectly
general law empowering a justice of the peace to
authorize the entry of premises named in the
warrant and the seizure of things described in the
warrant, being things relating to the commission
of offences against laws of the Commonwealth or of
a Territory. In R. v. Bishop of Salisbury (1901)
1 KB 573, at p 579, Channell J. said:

'A general Act must not be read as
repealing the common law relating to a
special and particular matter unless
there is something in the general Act to
indicate an intention to deal with that
special and particular matter.'

I do not think there can be any doubt about the
matter. The statute does not evince any intention
to oust the privilege. Indeed, I do not think
that a contrary view was advanced by counsel for
the defendant. The whole thrust of the argument
was directed to a determination of the scope of
the privilege at common law."

Deane J. at p. 111 said:-

"A person is obliged to disclose or yield his
information or property only to the extent that he
is compelled so to do by some applicable common
law principle or statutory provision. Where no
such compulsion exists, there is no need for any
special privilege protecting particular types of
information or property from disclosure or
seizure. The ordinary entitlement to remain
silent and to retain one's information or property
only constitutes a special privilege where it is
preserved as an exception in circumstances where
disclosure or cession would otherwise be
compelled. In the absence of any such general
compulsion, that entitlement represents no more
than the ordinary position of the ordinary citizen
under the common law."

Dawson J. at p. 123 said:-

"At common law there was no compulsory search and
seizure; search warrants were only issued to
search for stolen goods. Section 10 of the Crimes
Act extends the ambit of search warrants but the
general words of the section take no account of
any specific immunity, such as that conferred by
legal professional privilege. If that privilege
has an application outside judicial or
quasi-judicial proceedings, there can be no real
doubt that the general words of s. 10 are not
sufficient to curtail the privilege. Of course,
if the legislature were to see the need to achieve
that result it could do so by express words, but
the Court should not assist that result by reading
that intention into the general words of the
statute."

32. In Inland Revenue Commissioners v. Rossminster Ltd. [1979] UKHL 5; (1980) AC 952, Lord Diplock, referring to Entick v. Carrington (supra) said of the warrants in that case, at p 1009:-

"Their invalidity was more fundamental; a Secretary
of State, it was held, did not have any power at
common law or under the prerogative to order the
arrest of any citizen or the seizure of any of his
property for the purpose of discovering whether he
was guilty of publishing a seditious libel."

The reference to the purpose of the search warrant is apposite to the present matter.

33. Lord Scarman, at p. 1021, said:-

"If power exists for officers of the Board of
Inland Revenue to enter premises, if necessary by
force, at any time of the day or night and then
seize and remove any things whatsoever found there
which they have reasonable cause to believe may be
required as evidence for the purposes of
proceedings in respect of any offence or offences
involving any form of fraud in connection with, or
in relation to, tax, it is the duty of the courts
to see that it is not abused: for it is a
breath-taking inroad upon the individual's right
of privacy and right of property. Important as is
the public interest in the detection and
punishment of tax frauds, it is not to be compared
with the public interest in the right of men and
women to be secure in the privacy of their homes,
their offices, and their papers."

34. In Crowley v. Murphy (1981) 52 FLR 123, Lockhart J., with whom Northrop J. agreed, said at p 141:-

"Notwithstanding that Commonwealth and State
legislation governs the law of entry, search and
seizure in Australia today, it is necessary to
bear in mind the fundamental legal conception of
the freedom of the individual in his home or
premises. It is the cardinal principle in the
light of which the statutory authority for the
issue and execution of search warrants is read.
Even today, there is no right at common law to
enter a person's home or premises for the purposes
of search or seizure without the permission of the
owner or occupier, except in the case of a search
for stolen goods. Entry without such permission
or the authority of a valid warrant is to commit a
trespass and to render the trespasser liable to
damages. Statutes authorizing the issue of search
warrants must be expressed in clear and
unambiguous language."

35. While there is express provision for a search warrant in respect of the property of a bankrupt, there is no express provision in the Act for any search warrant in respect of the property of persons other than the bankrupt. Section 130, it is accepted by counsel for the Official Trustee, is confined in its operation to the property of a bankrupt and, indeed, the statutory form, Form 56, reinforces that conclusion.

36. The sole basis of justification for the order authorising the issue of the warrants therefore is said to be s.30(1)(b).

37. As Deane J. noted in Baker v. Campbell (supra) at p 116:-

"It is a settled rule of construction that general
provisions of a statute should only be read as
abrogating common law principles or rights to the
extent made necessary by express words or
necessary intendment. As has been seen, the
underlying principle that a person should be
entitled to preserve the confidentiality of
relevant communications between himself and his
attorney is regarded as of such importance by the
common law that the courts themselves do not
require disclosure of the content of such
communications even if it appears that such
disclosure would be conducive to justice in a
particular case and even if the proceedings be
between parties neither of whom is entitled to
claim the protection of the privilege as regards
the relevant documents or information. Both logic
and authority support the present-day acceptance
of the preservation of that confidentiality as a
fundamental and general principle of the common
law. It is to be presumed that if the Parliament
intended to authorize the impairment or
destruction of that confidentiality by
administrative action it would frame the relevant
statutory mandate in express and unambiguous
terms."

38. Similar considerations apply to the rights of a person in respect of his premises and property.

39. Dawson J. stated in a similar vein at p. 131:-

"The legislature may, of course, if it sees fit to
do so, cut across the doctrine of legal
professional privilege on occasions when it
considers that it is more important to obtain
information than to preserve the privilege and no
doubt the inclination to do so will be greater in
administrative proceedings where the principle has
not been seen to operate as it has in judicial
proceedings. The legislative imposition of an
obligation to disclose professional confidences to
the executive is relatively recent, although of
increasingly frequent occurrence. But it does not
seem to me that the law should ease the way for
the legislature to expand the practice nor should
it disguise the fact that a principle which the
law regards as fundamental is involved."

Murphy J., at p. 90, said:-

"The appropriate common law rule is one that
attaches legal privilege to the statutory powers
of search and seizure so as to protect those
documents or other material created solely and
innocently for the purpose of legal advice or for
use in existing or anticipated litigation.
Contrary to what was held in O'Reilly [1982] HCA 74; (1983) 153
CLR 1 the privilege should apply to any form of
compulsory seizure or production of documents,
unless Parliament unmistakably excludes or
confines it. There is not the slightest
indication that Parliament intended to do so."

40. There is no express provision in s.30(1)(b) abrogating the common law right of a person to his premises and his property. The question then becomes whether it is a necessary intendment of that section that such rights be abrogated.

41. In my opinion, the answer must be "no".

42. Deane J. had earlier observed in Thompson v. Mastertouch T.V. Service Pty. Ltd. (No.3) (1978) 38 FLR 397 at p 408:-

"It is a well-established principle of construction
that a statute is not to be taken as effecting a
fundamental alteration in the general law or as
abolishing or modifying fundamental common law
rights unless it uses words that point clearly and
unambiguously to that conclusion. This principle
has been recognized in many cases including cases
in the High Court of Australia (see, for example,
Potter v. Minahan [1908] HCA 63; (1908) 7 CLR 277, at p 304;
Bishop v. Chung Bros. [1907] HCA 23; (1907) 4 CLR 1262, at pp
1273-1274; Commonwealth and the Postmaster-General
v. Progress Advertising & Press Agency Co. Pty.
Ltd. [1910] HCA 28; (1910) 10 CLR 457, at p 464; Wall v. The
King; Ex parte King Won and Wah On [1927] HCA 4; (1927) 39
CLR 245, at pp 250, 253; Melbourne Corporation
v. Barry [1922] HCA 56; (1922) 31 CLR 174, at p 206; and see
generally Maxwell on Interpretation of Statutes,
12th ed., p 116ff., and the cases there cited).

43. In Melbourne Corporation v. Barry (supra), where the right of freedom of assembly was in issue, Higgins J. said at p 206:-

"It must be borne in mind that there is this common
law right; and that any interference with a common
law right cannot be justified except by statute -
by express words or necessary implication. If a
statute is capable of being interpreted without
supposing that it interferes with the common law
right, it should be so interpreted."

44. In my respectful opinion, s.30(1)(b) can be so interpreted.

45. Moynihan J., in Hedges v. Grundmann, ex parte Grundmann (1985) 2 Qd R 263, at p 268, with whom D.M. Campbell and Connolly JJ. agreed, said:-

"A warrant issued pursuant to s. 679 (of the
Criminal Code of Queensland) is authority to the
police officers to whom it is directed to do what
is otherwise unlawful - to enter peacefully
occupied premises and seize and take away the
property of people who in either case may have no
connexion with any criminal activity.
Consideration of the kind I have mentioned, and
not any concern for technicalities, found the well
established insistence of the courts that the
issue of the warrant and the warrants which are
issued authorizing such activities conform to the
conditions the Parliament has expressed in the
words of the statute providing for the issue of
the warrants."

46. In In re Burnand. Ex parte Baker, Sutton & Co. (1904) 2 KB 68, it was held that property in which a bankrupt had an interest jointly with another or other persons was not property to which the trustee of the bankruptcy was entitled to have delivery up to him. Similarly, when a partner assigned all his interest in a partnership to a bona fide purchaser for value, the books of account which passed by assignment were not the property of the bankrupt within the Bankruptcy Act 1966: In re West. Ex parte Good (1882) 21 ChD 868. These cases and Chapman v. Carolin (1894) 20 VLR 71 at p 73, suggest that property in which a bankrupt has a joint interest is not "the property of the bankrupt"; cf. R. v. Edwards (1948) QWN 26, noted in 22 ALJ at 427.

47. Clyne v. Deputy Commissioner of Taxation [1984] HCA 44; (1984) 154 CLR 589 was a case concerned with whether the power conferred by s.30(1)(b) of the Bankruptcy Act 1966 permitted the court to backdate a sequestration order notwithstanding that s.43(2) and s.55(3)(b) made express provision for when a debtor becomes a bankrupt. In the joint judgment of Gibbs C.J., Murphy, Brennan, and Dawson JJ., their Honours said at p. 597:-

"Apart from the power of an appellate court to put
right what was wrongly done in the first instance,
no court has power to cause a debtor to become a
bankrupt on a date earlier than that for which the
Act provides. Neither the general power conferred
by s.30(1)(b) of the Act to make such orders as
the court considers necessary for the purpose of
carrying out or giving effect to the Act, nor the
power given to the Federal Court by its rules to
antedate its orders (O.35, r.3) extends to permit
the court to make an order which would bring about
a result different from that prescribed by the
express provisions of the Act and so serious in
its possible consequences."

Here, there are express provisions dealing with the coercive powers of the court to get in the property of the bankrupt and coercive powers to compel other persons to provide information concerning the bankrupt, his trade dealings, property or affairs.

48. In Leon Fink Holdings Pty. Ltd. v. Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672, Mason J., as he was then, with whom Barwick C.J. and Aickin J. agreed, said at p 678:-

"It is accepted that when a statute confers both a
general power, not subject to limitations and
qualifications, and a special power, subject to
limitations and qualifications, the general power
cannot be exercised to do that which is the
subject of the special power. In Anthony Hordern
and Sons Ltd. v. Amalgamated Clothing and Allied
Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, at
p 7, Gavan Duffy C.J. and Dixon J. said:

'Extensive and unfettered as the
authority of the Court of Conciliation
and Arbitration to award preference in
settlement of a dispute might have been
in virtue of its general power, yet,
when s. 40 expressly gives a special
power, subject to limitations and
qualifications, surely it must be
understood to mean that the Court shall
not exercise an unqualified power to do
the same thing. When the Legislature
explicitly gives a power by a particular
provision which pescribes the mode in
which it shall be exercised and the
conditions and restrictions which must
be observed, it excludes the operation
of general expressions in the same
instrument which might otherwise have
been relied upon for the same power.'

See also R. v. Wallis; Ex parte Employers
Association of Wool Selling Brokers [1949] HCA 30; (1949) 78
CLR 529, at pp 550-551."

49. In my opinion, there is no latent power in the Act to authorise the issue of warrants of search and seizure of the property of strangers in aid of the investigative function of a trustee in bankruptcy to identify and realise the property of the bankrupt. This is particularly so since the power to authorise search and seizure is a drastic power, and the legislature has in s.130 of the Act specifically provided the circumstances in which such a power might be exercised in relation to the property of the bankrupt.

50. There is a further consideration. If there is a power to issue warrants of the kind in this case, it was submitted that it cannot extend to a power to entitle the seizure of all the documents of a company and the warrants were therefore too wide. I accept the correctness of this submission.

51. In the Commissioner of Taxation of the Commonwealth of Australia v. The Australia and New Zealand Banking Group Limited [1977] HCA 57; (1977-79) 143 CLR 499, Gibbs J., as he was then, said at p 525:-

"To be valid a notice to produce documents under s.
264(1)(b) must of necessity identify with
sufficient clarity the documents which are
required to be produced. However the notice must
in my opinion go further: it must show the person
to whom it is addressed that any document which he
is required to produce is one whose production the
Commissioner is entitled to require. Where a
notice is addressed to a taxpayer who is required
to produce documents which relate to his own
income or assessment, the very description of the
documents (for example, 'your books of account')
may be enough to show that the notice is within
the power conferred by the section. Where however
the notice is addressed to one person, requiring
him to produce the documents of another, the
notice must show that those documents relate to
the income or assessment of a particular person,
who must be identified. The power is confined to
giving a requirement of a particular kind - a
requirement to produce documents relating to the
income or assessment of some person - and a notice
requiring the production of documents not so
related is beyond the scope of the power."

Mason J., as he then was, said at p. 535:-

"Except in one respect the powers given by s. 264
should be circumscribed only by reference to the
limitations which are expressed in that section.
Thus, in s. 264(1)(b) the power to compel evidence
is restricted to evidence 'concerning his or any
other person's income or assessment' and the power
to require production is confined to documentary
records 'relating thereto', that is, to 'his or
any other person's income or assessment'.
However, the power to require information
contained in par.(1)(a) is not similarly limited.
As it is a power given to the Commissioner for the
purpose of enabling him to perform his functions
under the Act it must be circumcribed by reference
to this purpose."

There is no such circumscription in the warrants presently in issue. And later, at p. 537, his Honour said:-

"As the Commissioner's coercive power to require
production is limited, any notice given in
exercise of the power must in terms conform to the
statutory limitations if it is to be valid. It
will in my view conform to those limitations only
if it clearly confines the documents to be
produced to the class of which the Commissioner is
authorized to require production, though it may go
on to include particular documents on the footing
that they fall within that class. If not so
limited, the notice fails on its face to express
the limitation which the section places on the
Commissioner's authority. Because the exercise of
the power casts onerous obligations on the
recipient of a notice, and because the recipient
(not being the taxpayer) is only justified,
vis-a-vis the taxpayer, in producing the
taxpayer's documents without his consent in
response to a valid demand, it is for the
Commissioner so to formulate his notice that this
limitation on his authority is drawn to the
attention of the recipient."

52. For the reasons I have given, my opinion is that the warrants should be set aside. I will hear the parties on the orders I should make and on costs.