Federal Court of Australia

Arnautovic v Qaqour (No 3) [2022] FCA 844

ORDERS

THE COURT ORDERS THAT:

1.    The plaintiff’s application for access to the defendant’s passport is refused.

2.    Costs of the application are reserved.

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

REASONS FOR JUDGMENT

GOODMAN J

1    The defendant’s passport is in the custody of the Court, following an order made by Yates J on 17 June 2022 pursuant to s 486A(1)(c) of the Corporations Act 2001 (Cth) in Arnautovic v Qaqour [2022] FCA 726.

2    The plaintiff (who is the provisional liquidator of Penny World Pty Ltd (receivers and managers appointed)) seeks, and the defendant resists, an order allowing the plaintiff access to the passport.

3    The evidence before the Court comprises correspondence between the solicitors for the parties (annexed to an affidavit of the defendant’s solicitor, or tendered separately).

4    The essence of the plaintiff’s submissions is as follows:

(1)    the plaintiff relies solely upon s 486A as a source of the power to allow inspection of the passport;

(2)    the plaintiff obtained the order on the basis that it was necessary to protect the interests of Penny World, with a consequent intrusion upon the rights of the defendant;

(3)    having reached that point, it is but a small step and an insignificant further intrusion, to allow the plaintiff access to the passport; and

(4)    access to the passport may allow the plaintiff, in acting to protect the interests of Penny World, to understand the defendant’s travel movements prior to the surrender of the passport and this may lead to further inquiries, including a potential further application pursuant to s 486A of the Corporations Act for other documents.

5    I do not accept the plaintiff’s submissions for the following reasons.

6    First, s 486A(1)(c) empowers the Court to make: “an order requiring an officer or employee of a company, or a related entity of a company that is a natural person, to surrender to the Court his or her passport and any other specified documents” and does not include an express power to allow the applicant under s 486A to inspect the passport or other specified documents surrendered to the Court. Nor does s 486A include such an express power outside of s 486A(1)(c).

7    Secondly, I see no basis for the implication of such a power within s 486A(1)(c), or elsewhere in s 486A, and no such basis was suggested. At least in so far as it relates to passports, the evident purpose of s 486A(1)(c), considered in the context of s 486A generally, is to prevent a person using their passport to leave the jurisdiction where the requirements of s 486A(2) and (2A) have been met. That purpose is fulfilled by the surrender of the passport; and a subsequent inspection of the passport by the applicant under s 486A has no apparent connection to the fulfilment of that purpose.

8    Thirdly, if, contrary to the above, there were power within s 486A to order that the plaintiff have access to the passport, I would decline to make such an order as a matter of discretion, as I am not satisfied on the evidence before the Court that the plaintiff’s interest in obtaining access to the passport is sufficient to outweigh the defendant’s interest in maintaining the confidentiality of its contents. Contrary to the plaintiff’s submission, access to the passport is a further significant intrusion into the defendant’s rights.

9    As noted above, the application was based solely upon s 486A and it is thus unnecessary to consider any other potential bases for the making of such an order.

10    For the above reasons, the application is dismissed.

Associate:    

Dated:    21 July 2022