Case: Collier Garland Properties Pty Ltd v O'Hair [1964] NSWR 775
Outcome: discussed
Some reliance was sought to be placed by the Applicant upon the decision of Hardie J in Collier Garland Properties Pty Ltd v O'Hair [1964] NSWR 775. In issue in that case was the following provision of the Companies Act 1961 (NSW): 171 ... (2) Every officer and agent of a corporation the affairs of which are being investigated under this Division shall if required by an inspector appointed under this Division produce to the inspector all books and documents in his custody or power and shall give to the inspector all assistance in connection with the investigation which he is reasonably able to give. (3) An inspector may, by notice in the prescribed form, require any officer or agent of any corporation whose affairs are being investigated pursuant to this Division to appear for examination on oath or affirmation (which he is hereby authorised to administer) in relation to its business; and the notice may require the production of all books and documents in the custody or under the control of that officer or agent. ... Of this provision Hardie J concluded at 780: ... The point is by no means free from doubt. On the whole I have come to the conclusion that s 171 (3) empowers the inspectors to inspect and examine the books at the place at which their production has been required and given, and contemplates that when such inspection and examination at that place is completed the books and documents shall remain there and revert to the possession and control of the person to whom the notice was given. ... 23 For present purposes, it may be accepted that such power as may be conferred by statute to compel the production of documents may at some point in time become exhausted. An investigation, for example, may have concluded that thereafter there is no power to acquire further documents and (arguably) no power to retain documents previously acquired. Any statutory power is conferred for a purpose and, once that purpose has been fulfilled, questions inevitably arise as to the return of the documents previously produced. But the fact that such questions arise, it is considered, does not support any conclusion that any decision to return documents (or not to return documents) is a decision necessarily taken pursuant to the statutory provision authorising a regulator to compel production. Each decision must inevitably be considered in the statutory context (if any) within which it may be made. 24 In summary, the decision of the Authority not to return the documents in the manner sought by the Applicant is not a decision made under, or pursuant, to s 255. The decision of Hardie J in Collier Garland Properties is no authority to the contrary. 25 The decision of the Authority did not " alter or otherwise affect legal rights or obligations ". Whatever legal rights that the Authority may have as against Mr Rickus in respect of the documents produced by him pursuant to the s 255 notice, and whatever may be his obligations vis &agrave; vis the Motor Trades Association, they remain. If the documents are the documents of the Trustee, any decision of the Authority has not affected that position. 26 Section 56 of the Australian Prudential Regulation Authority Act does not expressly or impliedly require or authorise any decision to be made. It is a section which creates an offence for " protected information " or for a " protected document " to be disclosed (s 56(2)) and further sets forth those disclosures which are not an offence (s 56(3) and s 56(4)). Any decision not to return documents is not a decision made " under " this provision.