Federal Court of Australia

Australian Securities and Investments Commission v Goel [2020] FCA 1369

ORDERS

THE COURT ORDERS THAT:

Video hearing

1.    For the purposes of today's interlocutory hearing, and pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), counsel for the plaintiff is permitted to deliver oral submissions by way of video link.

Ex parte hearing and service

2.    Service of the interlocutory application, originating process and supporting affidavit at any time before service of these orders on the defendants is dispensed with.

3.    The originating application and interlocutory application are returnable before the court on an ex parte basis at 3.00 pm on Friday, 18 September 2020.

4.    The plaintiff must serve on the defendants as soon as possible:

(a)    these orders;

(b)    the originating process;

(c)    the interlocutory application;

(d)    the affidavit of Ms Jessica Seymour dated 18 September 2020; and

(e)    the plaintiff's written submissions dated 18 September 2020.

Interim asset preservation

5.    Paragraphs 6, 7, and 8 of the following orders have effect until 8.00 pm on Thursday 24 September 2020 or such extended time as is ordered by the court.

6.    Subject to paragraph 7 below, and pursuant to s 1323(3) of the Corporations Act 2001 (Cth) and s 23 of the Federal Court of Australia Act, each of the defendants, by themselves and their servants, agents and employees is restrained from:

(a)    removing, or causing or permitting to be removed from Australia all or any of the property (as defined in s 9 of the Corporations Act) of the defendants (Property);

(b)    selling, charging, mortgaging or otherwise dealing with, disposing of and/or diminishing the value of all or any of the Property;

(c)    causing or permitting to be sold, charged, mortgaged or otherwise dealt with, disposed of, or diminished in value, all or any of the Property;

(d)    without limiting the terms of sub-paragraphs (a) to (c) above, incurring new liabilities including, without limitation, liabilities incurred either directly or indirectly, through the use of a credit card, a credit facility, a drawdown facility or a re-draw facility; and

(e)    without limiting the terms of sub-paragraphs (a) to (d) above, withdrawing, transferring or otherwise disposing of or dealing with, any monies available in any account with any bank, building society or other financial institution (in Australia and elsewhere), in which the defendants have any legal or equitable interest.

7.    The orders in the preceding paragraph do not prevent:

(a)    the first defendant from paying or otherwise incurring a liability for ordinary living expenses up to $800 per week or such greater sum as may be set by the court;

(b)    each of the defendants from paying or otherwise incurring a liability for costs reasonably incurred in these proceedings and any criminal proceedings arising from the plaintiff's investigation into the affairs of the each of the defendants; and

(c)    any bank, building society or financial institution from exercising any right of set-off which it may have in respect of a facility afforded by it to each or any of the defendants prior to the date of these orders.

Travel restraint

8.    Pursuant to s 1323(1)(k) and s 1323(3) of the Corporations Act, the first defendant is prohibited from leaving or attempting to leave Australia without the consent of the Court.

9.    Pursuant to s 1323(1)(j) and s 1323(3) of the Corporations Act, the first defendant must deliver up forthwith to the Registry of this Court, to be held by the Registry until further order:

(a)    any and all passports held by him, or otherwise in his possession, custody or control;

(b)    any visa entitling him to enter, visit or reside in any country other than Australia; and

(c)    any and all airline tickets concerning any travel arrangements made for the period commencing on the making of these orders and ending at noon on 17 March 2021.

10.    Pursuant to s 1323(1)(j) of the Corporations Act and s 23 of the Federal Court of Australia Act, in the event that the first defendant cannot locate any Australian passport within one day of the making of these orders, he must file an affidavit stating that fact and annexing a copy of a written notification sent by him to the Department of Home Affairs or the Australian Passport Office informing them of the same.

Disclosure

11.    Except to the extent that a claim of privilege against self-incrimination or privilege against civil penalty is made, each of the defendants must deliver or cause to be delivered to the plaintiff by Friday 2 October 2020, a full and detailed affidavit sworn, in the case of the first defendant by himself, and in the case of the second defendant by the first defendant on its behalf, setting out:

(a)    the name and address of any bank, building society or other financial institution at which there is an account in the name of or under the control of the defendant, together with the number of such account, the name of such account and the balance of that account;

(b)    the name and address of any person or persons indebted to the defendant and the amount of the indebtedness;

(c)    an itemised inventory of the defendant's assets and liabilities;

(d)    an itemised inventory of any and all Property which, for the avoidance of doubt, must be real or personal property whether owned or controlled by the defendant and any property in which the defendant has any legal or beneficial interest;

(e)    in respect of any Property which has been given as security for any debt, the details of that Property and the nature of the security and the debt so incurred; and

(f)    the sources and amount of any income, wages, earnings or other payments received by the defendants in the last 12 months and expected to be received by the defendants in the next 12 months.

12.    If a defendant wishes to object that compliance with the orders in the preceding paragraphs may tend to incriminate that defendant or make that defendant liable to a civil penalty, that defendant must, in accordance with s 128A of the Evidence Act 1995 (Cth):

(a)    prepare, file and serve on the plaintiff an affidavit disclosing so much of the information required to be disclosed by paragraph 11 to which no objection is taken;

(b)    prepare an affidavit containing so much of the information required to be disclosed by paragraph 11 to which objection is taken and deliver it to the court in a sealed envelope; and

(c)    prepare, file and serve on the plaintiff a separate affidavit setting out the basis of the objection.

Notice of orders to third parties

13.    To the extent necessary, the plaintiff has leave to give to:

(a)    the relevant authorities (domestic and overseas) that record, control and/or regulate the ownership of real property;

(b)    the relevant authorities (domestic and overseas) that record, control and/or regulate the ownership of motor vehicles;

(c)    the relevant authorities and entities (domestic and overseas) that record, control and/or regulate the ownership of securities;

(d)    any bank, building society or other financial institution (domestic and overseas) with which, to the best of the plaintiff's knowledge and belief, any of the defendants operate any account;

(e)    the relevant authorities that issue and control the use of passports; and

(f)    any other person or entity (domestic and overseas), holding or controlling property which, to the best of the plaintiff's knowledge and belief, belongs to any of the defendants

notice of these orders, by delivering a copy of a minute of the orders to that entity or person and/or any person apparently in the employ of that entity or person.

General

14.    Any party has liberty to apply to the court on 48 hours' notice.

15.    The originating application and interlocutory application are adjourned to Thursday 24 September 2020 at 10.15 am AWST.

16.    Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1    On Friday 18 September 2020 the plaintiff (ASIC) applied for orders under s 1323 of the Corporations Act 2001 (Cth) for the appointment of receivers to the assets of the defendant, for orders to prevent the defendants from dealing with their assets, and for orders prohibiting the first defendant, Mr Goel, from travelling overseas. On the same day, after an ex parte hearing, I made asset preservation and travel restraint orders on an interim basis. These are my reasons for doing so.

2    The factual background appears from an affidavit of an ASIC investigator, Jessica Seymour, affirmed on 18 September 2020. Mr Goel, who was born in India in 1989, lives in a suburb of Perth and is a financial planner with an Australian Financial Services Authorised Representative Number. The second defendant, AR Wealth and Finance Pty Ltd, is a company of which Mr Goel is the sole director, company secretary and shareholder. Both Mr Goel and AR Wealth are authorised representatives of an Australian Financial Services Licence holder called Australian Financial Directions Pty Ltd.

The allegations

3    On 14 June 2019, ASIC commenced an investigation into suspected contraventions of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act), the Corporations Act and the Criminal Code Act 1913 (WA) by individuals including Mr Goel, and by AR Wealth. Ms Seymour's affidavit says that the investigation is 'well advanced but is ongoing'.

4    In July 2019 AustralianSuper Pty Ltd, a superannuation fund, gave ASIC a report about concerns that it had about Mr Goel's conduct. Ms Seymour deposes that the report alleged that Mr Goel had submitted numerous applications to AustralianSuper for the early release of members' funds on grounds of hardship. It said that the released funds were being paid into accounts of Mr Goel or associated individuals, and that significant fees allegedly charged to the members were being retained in those accounts after the balance of the funds were paid out. The report further raised concerns that in the course of procuring the early release of members' funds, Mr Goel or an associate had misrepresented themselves to AustralianSuper as being the members in question. AustralianSuper had identified up to 67 members who had been impacted by this alleged conduct. As will be seen, several of these members were Aboriginal people, some being residents of remote communities, who were potentially vulnerable to misconduct of the kind alleged.

5    It is important to note that AustralianSuper's report, and much of what follows, state allegations against Mr Goel that are presently unproven. It is also important to note that there is no suggestion in Ms Seymour's affidavit that Mr Goel or anyone else appropriated the members' funds, other than by way of the deduction and retention of what purport to be fees. That is, the evidence does not suggest that Mr Goel simply took all of the individuals' money for his own benefit. Nevertheless, on the basis of ASIC's concerns there will be scope for dispute about whether Mr Goel was entitled to charge the fees, as well as potential to find improper and unlawful conduct of other kinds.

6    ASIC investigated the concerns raised in AustralianSuper's report. That included reviewing a number of the hardship applications and speaking to some of the superannuation fund members named in them. ASIC determined, it says, that in some instances the applications had been filled out with contact details for the members that were not the correct contact details. Further inquiries that ASIC made of fund members suggest that in most instances, the email addresses given on the forms were Gmail addresses that were not email addresses used by the members. It may also be that the signatures on some of the forms were not the members' signatures. Some forms also gave bank account details that were not the members' bank accounts. Instead, according to ASIC's investigations, they were bank accounts for Mr Goel or his associates.

7    ASIC also listened to sound recordings that AustralianSuper had taken of telephone calls relating to the hardship applications, and made inquiries of the fund members who were supposedly making the calls in question. In some instances, those inquiries led ASIC staff to believe that the people who made the calls were not the fund members. In other words, ASIC alleges that individuals impersonated the fund members on some of these calls.

8    ASIC used its compulsory powers to summons Mr Goel for an examination in relation to these allegations. Things Mr Goel said in the course of the examination included the following:

(1)    Assistance with making financial hardship applications was not a service that AR Wealth offered.

(2)    About 15 to 20 individuals had, however, approached Mr Goel for help in making financial hardship applications.

(3)    Mr Goel had assisted these people with their applications, but he said he did not consider those individuals to be his clients as he was assisting them out of goodwill.

(4)    Mr Goel did, however, initially charge those individuals an agreed fee, but he then refunded the fee because 'I did not document it properly, the process'.

(5)    The individuals agreed with Mr Goel that the moneys released as a result of the hardship applications would go to a bank account nominated by Mr Goel. The account could be a personal account of Mr Goel or another account he nominated.

(6)    There was an agreement with the individual that the superannuation money would first be paid to Mr Goel so that he could retain his fee and he would then remit the balance. (It is not clear from the transcript of the examination whether Mr Goel is referring to one particular individual or to several or all of them.)

(7)    Mr Goel accepted that on at least one occasion he may have impersonated a fund member on a telephone call with a superannuation fund, but said that was only when the fund member was with him at the time or had authorised it.

(8)    Mr Goel did not set up email accounts in order to access the individuals' superannuation, but he had helped people, with their knowledge, to set up email accounts and he had the passwords for those accounts, at least for a limited time.

9    ASIC also conducted interviews with people in Meekatharra, Western Australia and obtained statements from four of those people. It is relevant to note that each of the interviewees was an Aboriginal man or woman. Two of them live in remote communities out of Meekatharra and the other two live in Meekatharra.

10    According to one interviewee, whom I will call Mr M:

(1)    he discussed a fee of between $500 and $1,500 with Mr Goel for assistance in getting access to his superannuation;

(2)    telephone calls were made to AustralianSuper by a person purporting to be him, but it was not him and he had not authorised anyone to do so;

(3)    an email address that was not Mr M's was given in order to open an AustralianSuper account in his name; and

(4)    an amount of approximately $6,500 was paid out of his account with AustralianSuper into a bank account of an associate of Mr Goel's, with $5,000 then being remitted to Mr M, the balance purportedly being a fee to Mr Goel.

11    According to Mr M, Mr Goel did not make any inquiry into his current financial situation before the application to gain access to the superannuation funds was made.

12    Another interviewee, whom I will call Ms C, said that:

(1)    when she heard about 'Rahul' she was on Centrelink benefits, had a new baby and was in need of money;

(2)    when she contacted Mr Goel he did not mention fees but she understood from the person who had referred her to him that he would charge $500;

(3)    several calls were made to AustralianSuper by somebody purporting to be her, which she did not authorise;

(4)    a hardship application form was submitted to AustralianSuper which she did not prepare and which she did not authorised anyone else to prepare;

(5)    as a result of the application, $7,800 was paid into a bank account of an associate of Mr Goel's, which Ms C did not authorise;

(6)    $6,500 was later paid out to Ms C from that account; and

(7)    Mr Goel later refunded the $1,300 'fee' which he had obtained in that way.

13    The other two interviewees made allegations of conduct of a similar kind. It is not necessary to provide further specifics at this stage in the proceeding. ASIC has also reviewed information from AustralianSuper and banks and has identified a further 10 individuals where there are similarities between their personal characteristics and those of the people ASIC has interviewed, and where a person whom ASIC suspects was Mr Goel engaged in similar conduct. But ASIC has not interviewed those individuals. It appears that several of the people potentially affected by the conduct are Aboriginal people. ASIC has also identified a total of 34 payments which AustralianSuper made into accounts held by Mr Goel or associates, on the basis of benefit payment or hardship applications purportedly made by individuals other than those that have already been mentioned.

14    As well as fees paid to Mr Goel (some of which, at least, were later refunded), the fund members incurred smaller fees payable to the superannuation funds as well as potentially more substantial tax liabilities which arose as a result of the early withdrawal of the funds from the superannuation.

15    Ms Seymour deposes that she and her colleagues are in the process of preparing a brief of evidence for submission to the Commonwealth Director of Public Prosecutions with respect to Mr Goel.

Assets and travel

16    Ms Seymour's affidavit provides details of inquiries that ASIC made about the defendants' asset positions. Each of Mr Goel and AR Wealth have cash in Australian bank accounts. ASIC's investigations have not identified any other assets of significance in Australia. Australian Transaction Reports and Analysis Centre (AUSTRAC) reports show that between January 2019 and August 2020, Mr Goel and his associates deposited over $400,000 into foreign bank accounts in his name.

17    At the ASIC examination, Mr Goel said that he is a citizen of India and holds an Indian passport. He may also hold an Australian passport. He first came to Australia in 2008 and is now a permanent resident of Australia. He has a wife who may be an Australian citizen (the evidence is unclear) but who in any event lives in Melbourne, while Mr Goel lives in Perth. While Mr Goel claims that they are not separated, since they live in different cities that is doubtful. Neither Mr Goel nor his wife have any children. Mr Goel said in the examination that he sometimes travels to India to visit his mother, who is unwell, and to attend the weddings of family members and friends. He would not say how frequently he does this. He may have been overseas as recently as December 2019 to February 2020.

18    Some time before 2 September 2020, Mr Goel made an application to the Department of Home Affairs for an exemption to travel overseas, which is necessary during the current pandemic. The reason given for the application was that his mother was critically ill. The application was supported by what appears to be a medical certificate dated 19 August 2020 issued in India saying that Mr Goel's mother suffered a myocardial infarction, that is, a heart attack. The exemption application was for intended departure on 8 September 2020, travel to India, and return to Australia on 14 October 2020. The Department approved the application on 2 September 2020 but ASIC did not learn of the approval until 16 September 2020. Nevertheless, it seems that Mr Goel was still in Australia at that time, and remains in Australia.

Orders sought

19    On the basis of the evidence I have summarised above, ASIC sought orders prohibiting the defendants from dealing with their assets, other than for the purpose of paying living expenses or legal costs in relation to the allegations. It also sought orders prohibiting Mr Goel from leaving Australia and for the delivery of his passports to the court. It also sought orders for the disclosure of assets in affidavits.

Principles

20    I will not set out s 1323 in full here. It empowers the court to make certain orders if one of three preconditions is satisfied. The one that is relevant here is that ASIC is carrying out an investigation under the Corporations Act or the ASIC Act into an act or omission of a person that is or may be a contravention of the Corporations Act. For any order under the section to be made the court must consider it necessary or desirable to make the order for the purpose of protecting the interests of persons whom the section calls 'aggrieved persons', where the person being investigated is liable, or may be or become liable, to pay money to the aggrieved person or to account for financial products or property.

21    Section 1323 sets out a range of possible orders, including the appointment of receivers, the delivery up of passports and prohibition on leaving the jurisdiction. Section 1323(3) authorises interim orders of a kind that are being applied for on a final basis. It is established that if ASIC is applying for the appointment of receivers, that empowers the court to make orders prohibiting the relevant person from dealing with assets within the jurisdiction: Australian Securities and Investments Commission v Ostrava Equities Pty Ltd [2015] FCA 425; (2015) 106 ACSR 332 at [11]-[12] (Davies J), and the authorities cited there, especially Australian Securities and Investments Commission; In the Matter of Richstar Enterprises Pty Ltd v Carey (No 14) [2007] FCA 310; (2007) 158 FCR 92 at [5], [33] (French J).

22    At the stage an order is sought, the court may not be in a position to identify with precision any particular liability owed by the person the subject of the proposed order: Australian Securities and Investments Commission; In the Matter of Richstar Enterprises Pty Ltd v Carey (No 3) [2006] FCA 433; (2006) 232 ALR 577 at [23], [25] (French J). Orders can be made before liability is established and even before the evidence necessary to establish liability has been collected. Neither a reasonably persuasive case against the target of the orders, nor evidence of an appreciable risk of dissipation of assets are necessary to enliven the power to make the orders, although both are powerful discretionary factors that will affect the court's willingness to exercise the power and the scope of any orders made: Australian Securities and Investments Commission v Adler [2001] NSWSC 451; (2001) 38 ACSR 266 at [7(b)], [7(c)]; and Australian Securities and Investments Commission v Carey (No 3) at [25] (French J).

23    In Carey (No 3) at [26] French J said (citations removed):

The circumstances in which the Court may make orders under s 1323(1) are wide as indicated by the words 'necessary or desirable … for the purpose of protecting the interests of a person … '. There is an element of risk assessment and risk management in the judgment the court is called on to make. It follows, and has been accepted, that there is no requirement on the part of ASIC to demonstrate a prima facie case of liability on the part of the relevant person or that the person’s assets have been or are about to be dissipated.

24    The court must engage in a balancing exercise which includes a balancing of public and private rights: Australian Securities and Investments Commission v Ivey (1998) 29 ACSR 391 at 394 (Nicholson J). The court has a responsibility to make sure that the orders operate in a manner that is proportionate and not more intrusive than is necessary in the circumstances, recognising that it is inevitable that such orders will intrude upon private rights: ASIC v Adler at [7(d)].

25    Since the court engages in a risk assessment and management process, there may not be evidence that would be necessary and admissible in proceedings to establish definitively the nature and extent of the assets of the persons under investigation and their liability to aggrieved persons. Hearsay evidence may be admissible, not as proof of the truth of its content, but as evidence of the existence of a risk or possibility which means that a protective order is necessary or desirable: Carey (No 3) at [30]-[31].

26    In relation to orders imposing travel restrictions, the court will be reluctant to make orders which impose restrictions on a person’s freedom of movement. The right to travel freely is an important private right which ought not be lightly interfered with. However, the public interest may outweigh that private right and justify an interference with it: Australian Securities and Investments Commission v Johnston [2009] FCA 1276 at [8] (Siopis J); and Australian Securities and Investments Commission v Secure Investments Pty Ltd [2020] FCA 639 at [40] (Derrington J).

Consideration

27    In considering whether to make the orders that ASIC sought on an interim basis, I was conscious that freezing orders of the kind sought, and orders prohibiting travel, were substantial incursions into the liberty of the defendants and should not be made lightly. I was also conscious that ASIC was seeking the orders on an ex parte basis so that if the orders were made, that would occur before the defendants had an opportunity to oppose the orders.

28    Nevertheless, I determined that it was appropriate to make the order sought for the following reasons:

(1)    The relevant precondition to the orders is satisfied here. ASIC is conducting an investigation into the conduct of the defendants. The conduct may involve contraventions of the Corporations Act, including s 1041G, which prohibits dishonest conduct in relation to a financial product of a financial service. It may also involve contraventions of the ASIC Act, including s 12DB, which prohibits the making of false and misleading representations in connection with the supply or possible supply of financial services. ASIC is also investigating whether the defendants' conduct involved breaches of the Criminal Code Act 1913 (WA), including s 409, which concerns fraud as an offence.

(2)    The conduct alleged against the defendants is at a high level of dishonesty and impropriety. It involves a pattern of identifying vulnerable members of the community who may be susceptible to the suggestion that they can obtain early access to superannuation funds, and inducing those persons to apply for that access without regard to their actual interests. The manner in which it is alleged that the applications were conducted may have involved impersonating the putative clients without their authority, using email accounts set up in the clients' names without their authority for the purposes of making the applications, forging signatures on application forms, and having money withdrawn from superannuation funds paid into the personal bank accounts of Mr Goel or associates. While money may have then been paid out to the putative clients, that was not without the deduction of substantial fees, which may not have been agreed with or authorised by the clients.

(3)    It goes without saying that if this conduct is established then, to the extent that it was carried out under the rubric of a financial advisory licence, it would fall grossly short of the standards of propriety to be expected of the authorised representatives of such a licensee, including many of the standards imposed by law.

(4)    ASIC's investigations into these matters are advanced, so while they are unproven allegations, they are not speculative and in some cases are based on specific evidence from aggrieved persons and objective evidence from reliable sources such as banks and AUSTRAC. In the ASIC examination Mr Goel partially confirmed the allegations, although he put a different complexion on them.

(5)    In those circumstances the level of dishonesty and impropriety alleged is significant to the risk assessment which the court must undertake. It increases the likelihood of dissipation of assets and flight against which the proposed orders would guard.

(6)    The number of aggrieved persons is large and the conduct alleged is likely to be important to those persons. While each putative fee which Mr Goel, AR Wealth and associates may have obtained from those persons might not be a large sum of money when considered alone, it is likely to be of substantial importance to at least some of the aggrieved persons given their individual circumstances. In the case of Mr M, for example, the alleged fee appears to have been around a quarter of the total sum withdrawn from his superannuation and in the case of Ms C it was nearly 20%.

(7)    The dishonesty involved in the alleged conduct, and the manner in which it resulted in the aggrieved persons, gives rise to a real possibility that Mr Goel and AR Wealth are liable to compensate those persons for the moneys that have been appropriated or otherwise account to them. For example, if a breach of s 1041G is established, then any person who suffered loss as a result of conduct engaged in contravention of that section may recover the amount of the loss or damage from the contravenor: Corporations Act s 1041I(1).

(8)    The assets of the defendants in Australia which have been identified are comprised of cash which would be easy to transfer out of the jurisdiction or otherwise put out of the reach of creditors. Mr Goel has a history of transferring cash overseas.

(9)    Mr Goel has appears to have few ties to Australia. Relocating to India, the country in which he was borne and where he still has family, would seem to be a practicable option for him. He has an aeroplane ticket and an exemption to leave the country which would enable him to do so at any time.

29    In my view these matters, taken together, give rise to a level of risk that assets of the defendants may be taken out of reach of legal processes available to enforce their recovery, and a risk that Mr Goel will leave Australia, so that it is desirable to make orders that will protect the interests of aggrieved persons by prohibiting those things. The amount of money in the bank accounts of the defendants that has been identified may be sufficient to compensate aggrieved persons, but is not so large that freezing the entire amount is disproportionate to the need to protect those persons' interests.

30    Nevertheless, I had three reservations about making those orders. The first was that the evidence that AR Wealth engaged in any of the alleged conduct is not substantial. It appears that Mr Goel may deny that he did act through or for the company at relevant times. But given that he is the company's sole shareholder, director and secretary, and that the company has the capacity of an authorised representative of a financial services licensee, it is open to infer that AR Wealth did engage in relevant conduct that may make it liable to aggrieved persons. The inference is not a strong one, but in my view it is sufficient to make it desirable to mitigate the risks by making the orders sought on an interim basis.

31    The second reservation was that it was not immediately apparent how travel restrictions would protect the interests of aggrieved persons. The cases I have cited above in that regard tend to place emphasis on the desirability of the targets of investigations staying in the jurisdiction so that they can assist with ongoing investigations. Here, however, it is clear that ASIC's investigation is almost complete, in the sense that it is ready to place criminal charges. There is no reason to suppose that it will need Mr Goel's assistance in future or be able to obtain that assistance. In Australian Securities and Investments Commission v Hawley [2008] FCA 1423 at [6] Perram J said:

It is tolerably plain that s 1323(1) is directed to the protection of the interests of aggrieved persons (so defined). If the purpose for which the order is made is not for that purpose then the provision does not authorise the making of an order. The purpose of keeping Mr Hawley within the jurisdiction to ensure that he is present if and when the Director of Public Prosecutions decides to prosecute him is not the purpose of protecting the interests of the aggrieved persons. It follows that orders under s 1323(1) cannot be made for that purpose.

32    However on the basis of submissions by senior counsel and junior counsel for ASIC I was persuaded that in the circumstances of this case, it was desirable in order to protect the interests of aggrieved persons that Mr Goel remain within the jurisdiction. If Mr Goel leaves Australia, any criminal prosecution and resulting verdict will be delayed by reason of the need to seek extradition, and may be entirely frustrated. That may adversely affect the interests of aggrieved persons because one possible outcome of a criminal prosecution may be an order for compensation to victims under s 117 of the Sentencing Act 1995 (WA). Indeed, given the relatively small individual amounts involved and the likely lack of resources of some of the aggrieved persons, an order of that kind may be the only realistic prospect of recovery of compensation for any wrongdoing established.

33    The third reservation was that on the face of the evidence, Mr Goel may have a good reason to go to India which is unconnected with the allegations ASIC makes against him, and not motivated by a desire to flee Australia. That is his mother's apparent illness. ASIC had no basis to suggest that the medical certificate I have mentioned was anything other than what it appeared to be. If so, Mr Goel's mother has experienced a potentially life threatening health emergency. Obviously, if that is established it will provide a ground that Mr Goel may wish to advance in support of any wish on his part to travel to India.

34    Nevertheless, the apparent date of the heart attack was 19 August 2020. While the medical certificate said that Mr Goel's mother came to the hospital in a 'very critical condition' and that her condition was serious, it also said that she 'needs her near and dear ones to look after her and to boost her morale', suggesting that after treatment at the hospital her condition was not critical and may be susceptible to improvement. That suggestion is strengthened by the fact that Mr Goel did not apply for an exemption to leave Australia until 2 September 2020, did not book travel for a date before 8 September 2020, and did not in fact travel on that date. While this provides little for the court to go on, in my view it was enough to mean that there was no compelling reason not to impose travel restrictions for at least a short time. Mr Goel will, of course, have an opportunity to put on evidence in support of any submission he may wish to make that his mother's medical condition means that the interim restriction should not be extended further.

Orders

35    For those reasons, I made the orders set out at the beginning of this judgment. The asset disposal and travel restrictions have effect only until 8.00 pm on Thursday, 24 September 2020. An interlocutory hearing has been listed on the morning of that day to hear submissions from the parties as to whether the orders should be extended.

Associate:

Dated:    23 September 2020