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UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA

Case No. 18-cv-80176

IRA KLEIMAN,
as personal representative of
the estate of David Kleiman,

Plaintiff,

v.

CRAIG WRIGHT,

Defendant.
________________________________________/
MOTION TO DISMISS THE COMPLAINT

Dr. Craig Wright moves to dismiss the complaint filed by plaintiff Ira Kleiman, brother

of the late Dave Kleiman and personal representative of his estate. Plaintiff’s complaint is a thin

soup of supposition, speculation, conflicting allegations, hearsay and innuendo, all of which arise

from plaintiff’s assumption that his late brother owned a great many bitcoins when he died,

bitcoins that plaintiff cannot cash in because his brother failed to share the computer codes

needed to access them. The complaint (and its exhibits) fairly scream these facts, but instead

attempt to shakedown Dr. Wright for the purported value of bitcoins and intellectual property

owned by Dr. Wright. That attempted shakedown would require this Court to void two

judgments of the Supreme Court of New South Wales, Australia, on grounds that they were

procured by fraud, in abject violation of the fundamental rule that a court that supposedly was

defrauded is the court that gets to decide whether it was defrauded. That rule is obeyed by courts

of different districts, states, and nations, whether as a matter of interstate or international comity.

But the complaint is inherently and fatally infirm for numerous other reasons, including

the facts that plaintiff lacks standing, the Australian judgments preclude this action, Dr. Wright is
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not subject to personal jurisdiction, the complaint fails to state any legally sufficient claims, and

this action is entirely based on allegations of which plaintiff has no personal knowledge.

To summarize, the complaint alleges that Dr. Wright and Dave Kleiman were involved in

the creation of Bitcoin and had an oral partnership to mine bitcoins and create intellectual

property. It alleges that after Dave Kleiman died, his share of bitcoins and intellectual property

allegedly owned by the purported partnership were improperly taken by Dr. Wright. Plaintiff has

no personal knowledge of any of these allegations, because Dave Kleiman kept his involvement

in Bitcoin a secret from his family, including the plaintiff. In fact, plaintiff learned about Dave

Kleiman’s involvement in Bitcoin from Dr. Wright, who emailed condolences to Dave’s father

after Dave’s death, and told him that Dave might have left a legacy in the form of bitcoins and

codes on hard drives held by the estate. No good deed goes unpunished.

After seeing Dr. Wright’s email to his father, plaintiff searched for what he hoped was a

fortune in bitcoins on his brother’s hard drives, only to find that any possible fortune was

inaccessible because Dave Kleiman, an encryption specialist, had not only failed to leave the

codes to the estate, but had encrypted his hard drives. Unable to access Dave Kleiman’s bitcoins,

Ira Kleiman trained his sights on Dr. Wright’s bitcoins. He then mined Australian tabloids for the

raw materials needed to cook up his stew of contradictory, absurd, and legally insufficient

allegations.

Dr. Wright moves to dismiss the complaint because plaintiff lacks standing to bring his

claims, which, are not pleaded with legal sufficiency and are precluded by two prior judgments

entered by the Supreme Court of New South Wales, Australia in 2013. Moreover, there is no

personal jurisdiction over Dr. Wright in Florida, and the potential witnesses and sources of

evidence in this case are not subject to compulsory process in Florida.

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The complaint failed to identify a single witness in Florida with personal knowledge of

its allegations. In contrast, it identifies at least 16 potential witnesses, companies, government

officials and documents located in Australia, the purported situs of Dr. Wright’s allegedly

wrongful conduct. None of those witnesses, companies, government officials or documents are

subject to compulsory process by any court located in Florida. Thus, even if plaintiff had

standing to bring his claims, even if the Court could assert personal jurisdiction over Dr. Wright,

even if plaintiff had alleged legally sufficient claims, and even if those claims were not precluded

by prior judgments of Australian courts, dismissal still would be required on grounds of forum

non conveniens and international abstention.

I. THE ALLEGATIONS OF THE COMPLAINT

Plaintiff Ira Kleiman tells a disjointed, confusing, and contradictory tale in his complaint.

By his own admission, he was not involved in any of the events alleged except for digital

communications with Craig Wright from February 15, 2014, to about October 9, 2015 (Compl.

¶¶ 104-16, Exs. 3, 18), and, at the time of his brother’s death, was not aware of Dave Kleiman’s

alleged involvement in Bitcoin. Id. ¶ 5.1 We do our best to put plaintiff’s secondhand allegations

into an orderly narrative, taking as true—only for purposes of this motion—the complaint’s

sloppy pastiche of hearsay, stolen emails, information published on unreliable internet web sites,

and improperly leaked transcripts of secret Australian government investigative interviews. See,

e.g., ¶ 52.

1
We adopt the complaint’s use of the term “Bitcoin” to refer to “the protocol, software, and
community,” and the term “bitcoins” to refer to the “units of exchange.” Compl. ¶ 1 n. 1.

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A. Dr. Wright and Dave Kleiman’s Relationship

Dave Kleiman and Craig Wright met in an online cryptography forum in 2003 and

became friends. Compl. ¶¶ 43, 51. Both men were obsessed with cryptography and data security.

Id. ¶ 2. Craig Wright is an Australian computer scientist who lives in London. Id. ¶¶ 2, 14, 41.

Dave Kleiman was an IT security expert from Palm Beach who died on April 26, 2013. Id. ¶¶ 2,

8, 39. They kept their relationship hidden from most of their family and friends, and

“communicated almost exclusively through various private email accounts.” Id. ¶¶ 2, 4.2

B. Dr. Wright and Dave Kleiman’s Involvement in Bitcoin

The complaint suggests that Craig Wright is or may be “Satoshi Nakamoto,” the

pseudonymous inventor of Bitcoin. Compl. ¶¶ 4, 42, 52, 53. During 2008, Wright asked Dave

Kleiman to help in creating the Bitcoin blockchain. Id. ¶¶ 46-47. The following year, Dave told

plaintiff he was helping a “wealthy foreign man” create “digital money.” Id. ¶ 49. The complaint

alleges that Wright and Kleiman had mined more than a million bitcoins by the time of

Kleiman’s death (id. ¶ 55) and “accumulated a vast wealth of bitcoins from 2000 through 2013.”

Id. ¶ 4.

C. The Formation and Dissolution of W&K Info Defense and Research LLC

On February 14, 2011, Kleiman formed W&K Info Defense Research LLC (“W&K”) in

Florida, listing himself as the registered agent and sole member, using his home address as the

place of business. Compl. ¶ 56. The complaint also suggests that Kleiman may have owned only

half of W&K (id. ¶ 57) and alleges that Wright was Kleiman’s “former business partner in W&K

. . .” Id. ¶ 14. W&K was administratively dissolved in September 2012.

2
The complaint does not allege that the two men ever met in person anywhere or that Wright has
ever been in Florida.

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W&K was reinstated almost a year after Dave Kleiman’s death by a person named Uyen

Nguyen, who removed Dave Kleiman as W&K’s registered agent, added herself as registered

agent, manager, and secretary for W&K, and added Coin-Exch Pty Ltd. as director. Compl. ¶ 60,

Ex. 5, at 2.3 On September 23, 2016, W&K was again administratively dissolved. Id. ¶ 61.

D. The Alleged Scheme to Obtain Bitcoins and Intellectual Property

The complaint alleges that, after Dave Kleiman’s death, Dr. Wright wrongfully obtained

possession and control of Kleiman’s share of intellectual property and of bitcoins “that belonged

to Dave and [Dr. Wright] jointly through W&K.” Id. ¶ 75. Specifically, the complaint alleges

that Dr. Wright fabricated contracts between himself and W&K with the intent to use those

contracts to fraudulently cause the Supreme Court of New South Wales, Australia, to issue

judgments awarding him sole rights to intellectual property developed by W&K. Id. ¶¶ 6-7, 90-

101.

E. The Allegedly Fabricated Contracts

The complaint attaches and cites three contracts it claims were fabricated by Dr. Wright.

Compl. Exs. 4, 10-11. The first is an April 2011 deed between Dr. Wright and W&K entitled

“Intellectual Property License Funding Agreement” (the “Deed”). Id. Ex. 10, at 2-3, 5 [¶ 1].

Under the terms of the Deed, Dr. Wright allegedly (1) transferred 215,140 bitcoins to W&K (id.

Ex. 10, at 3 [¶ F]), (2) loaned hardware to W&K that it could use to mine bitcoins at an

anticipated rate of 12,000 bitcoins (or “BTC”) per month (id. Ex. 10, at 4 [¶¶ L, P]), and (3)

licensed intellectual property to W&K, including software that W&K could improve and use in

3
The “Title Abbreviations” on the Florida Division of Corporations’ website define “M” as
Manager, “S” as Secretary, and “D” as “Director.”
http://dos.myflorida.com/sunbiz/search/guides/corporation-records/title-abbreviations/.

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the course of its business “in Australia and/or Overseas . . . .” Id. Ex. 10, at 3 [¶ B-C, H-J], 7 [¶

3], 9 [¶ 5]. The Deed values the software at 20 million AUD. Id. Ex. 10, at 7 [¶ 3].

The Deed required W&K to repay Dr. Wright 250,000 BTC by June 30, 2013, another

50,000 BTC by December 30, 2013 (Compl. Ex. 10, at 7 [¶ 3(a)-(b)]), and assign and transfer to

Dr. Wright all “right title and interest to the improvements” to the software, “including all claims

as they relate to the improvements.” Id. Ex. 10, at 5 [¶ 1(e)]; 9 [¶ 5]. The Deed has choice-of-law

and forum-selection clauses selecting the law of New South Wales, Australia, and specifying that

the parties agreed to “submit to the non-exclusive jurisdiction of the courts of that state.” Id. Ex.

10, at 6 [¶ 2].

The parties to the second contract are Dr. Wright, W&K, and Kleiman. Compl. Ex. 4. It

is entitled “Contract for the Sale of Shares of a Company Owning Business,” and is dated April

2, 2013 (the “New Venture Contract”). Id. Ex. 4, at 2-3. Like the Deed, the New Venture

contract includes choice-of-law and forum-selection clauses selecting the law of New South

Wales, Australia, and specifying that the parties agreed to “submit to the non-exclusive

jurisdiction of the courts of that state.” Id. Ex. 4, at 4 [¶ 1].

The New Venture Contract states that it reduces W&K’s repayment amount under the

Deed by 49,500 BTC (Compl. Ex. 4, at 5 [¶ 2(c)]), and creates a framework for a future venture

in Australia between Kleiman and Dr. Wright called Coin-Exch Pty Ltd (“Coin-Exch”). Id. Ex.

4, at 5 [¶ 4(b)-(d)]. It specifies that Kleiman would receive a 49.5% interest in Coin-Exch under

the New Venture Contract, in exchange for transferring his shares in W&K and 323,000 BTC to

Dr. Wright, who then would transfer them to Coin-Exch as capital. Id. Ex. 4, at 5 [¶ 4(b)-(c)].

The third allegedly fabricated contract is entitled “Deed of Loan” and dated October 23,

2012. Compl. ¶ 76(b). Plaintiff alleges the Deed of Loan demonstrates conflicts between the

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three contracts. Id. ¶ 84. Neither Kleiman nor W&K is a party to the Deed of Loan (id. Ex. 11),

which contains a handwritten note that plaintiff claims is in Dr. Wright’s handwriting. Id. ¶ 73.

According to the complaint, the note says: “as agreed, all wallets to be held in UK in trust until

all regulatory issues solved and Group Company formed with Dave K and CSW.” Id.

F. The Judgments Rendered by the Supreme Court of New South Wales, Australia

Kleiman died before the New Venture Contract’s deadline for W&K to repay Dr. Wright

for the bitcoins he had transferred to W&K through the Deed and to transfer Kleiman’s interests

in the 323,000 BTC to Dr. Wright as capital to be held by Coin-Exch. Compl. ¶ 6, Ex. 4, at 5 [¶

2(c)-3(a)], 5 [¶ 4(a)].

The complaint alleges that Dr. Wright filed a statement of claim against W&K on July

25, 2013, in the Supreme Court of New South Wales, case number 2013/225983 (the “First

Australian Lawsuit”). Compl. Ex. 13, at 8-11. This First Australian Lawsuit states that, by a

contract dated October 27, 2008, W&K agreed to pay Dr. Wright for property and consulting

services to complete research. Id. Ex. 13, at 9. The “contract was executed with an agreement

that all created Intellectual property reverts to the ownership of [Wright] with interest if the

project concludes without the assignment of shares in [W&K].” Id.

On November 6, 2013, the Supreme Court of New South Wales entered a judgment

against W&K in the First Australian Lawsuit, with the consent of the parties, finding that W&K

owed Wright 28,254,666.00 AUD. Compl. Ex. 16, at 2. The court noted “the agreement of the

parties that the plaintiff will accept transfer of Intellectual property held by the plaintiff in full

and final satisfaction of the judgment.” Id. The complaint alleges that W&K’s consent to the

First Australian Judgment was invalid because of a lack of authorized consent. Id. ¶ 99.

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According to the complaint, on August 13, 2013, Dr. Wright filed a second statement of

claim against W&K in the Supreme Court of New South Wales, case number 2013/245661 (the

“Second Australian Lawsuit”). Compl. Ex. 13, at 2-7. The Second Australian Lawsuit states that

Dr. Wright had loaned W&K money and that W&K had defaulted on a contract dated January 8,

2009, under which W&K had “agreed to pay [Wright] for property and consulting services to

complete research.” Id. Ex. 13, at 3. The Second Australian Lawsuit also alleges that the

“contract was executed with an agreement that all created Intellectual property reverts to the

ownership of [Wright] with interest if the project concludes without the assignment of shares in

[W&K],” and that the “IP is software and code used in the creation of a Bitcoin system.” Id. Ex.

13, at 4. According to the complaint, the Second Australian Lawsuit alleged that W&K was

“unable to complete its responsibilities due to the death of its director, Mr. Kleiman,” and, after

depreciation for hardware provided to W&K, Dr. Wright was entitled to a judgment of

28,533,016.19 AUD. Id.

The Supreme Court of New South Wales entered a judgment in the Second Australian

Lawsuit, dated August 28, 2013, against W&K of 28,534,049.79 AUD in favor of Dr. Wright.

Compl. Ex. 15. The court “note[d] the agreement of the parties that [Dr. Wright] will accept

transfer of Intellectual property held by [him] in full and final satisfaction of the judgment.” Id.

W&K’s consent is signed J. Wilson, who is listed as an “authorized officer,” but the complaint

alleges that J. Wilson was not authorized and that W&K’s consent was invalid. Id. ¶ 98.

G. The Complaint Alleges that Dave Kleiman Kept Secret His Involvement in
Bitcoin and His Relationship with Dr. Wright

According to the complaint, Dave Kleiman never told his family about his involvement in

Bitcoin and his relationship with Dr. Wright (Compl. ¶ 105), except for once allegedly telling

plaintiff that he was creating “digital money” with a “wealthy foreign man.” Id. ¶ 49.

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H. Alleged Communications Between Dr. Wright and Plaintiff

The complaint alleges that Dr. Wright initiated contact with the Kleiman family when he

emailed Kleiman’s father on February 11, 2014. Compl. ¶¶ 104-05, Ex. 17, at 2. According to

the complaint, plaintiff took over the email exchanges with Dr. Wright shortly after the first

email contact from Wright. Id. ¶ 106. It was in these email exchanges that Dr. Wright alerted

plaintiff to Dave Kleiman’s activities, including his bitcoin mining, all of which were unknown

to plaintiff. Id. ¶¶ 8, 104-05. The complaint alleges that Dr. Wright told plaintiff that Dave

Kleiman’s estate was entitled to and would receive shares in Coin-Exch (id. ¶ 108) and that Dr.

Wright offered to make plaintiff a director of Coin-Exch, permit him to inspect its books and

records, and asked him how Dave Kleiman’s shares should be transferred to the estate. Id. Ex.

18, at 12, 19-20.

The complaint alleges that plaintiff was contacted by the Australian Tax Office (the

“ATO”) on April 15, 2014. Compl. ¶¶ 110-12. An ATO employee told plaintiff that ATO was

investigating Dr. Wright and gave him copies of the contracts between Dr. Wright and W&K. Id.

¶ 110. These statements from the ATO representative made plaintiff suspicious. Id. at 111-12.

Plaintiff and Dr. Wright exchanged emails discussing different proposals and counter-

proposals related to Dave Kleiman’s rights to bitcoins and intellectual property. Id. ¶¶ 109-15;

Ex. 18, at 10-15, 20-21. Plaintiff alleges that Dr. Wright ceased responding to his emails on

October 9. Id. ¶ 116.

I. Plaintiff’s Allegations About Jurisdiction and Venue

Plaintiff makes the generalized and conclusory allegations that Dr. Wright, a citizen of

Australia and resident of London, England, is subject to personal jurisdiction in Florida because

he (1) is Kleiman’s “former business partner in W&K[], a company operating in the state of

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Florida and formed pursuant to its laws,” (2) “committed tortious acts within the state[,]” and (3)

“caused injury to persons and property within this state at or about the time he was engaged in

solicitation and services activities within the state.” Compl. ¶ 14. As for venue, plaintiff alleges

that “a substantial part of the events giving rise to these claims occurred in this District,”

including “the mining of a substantial amount of bitcoins through the use of computer equipment

located within this District,” and the development of certain blockchain related intellectual

property within this District.” Id. ¶ 16.

III. ARGUMENT

A. Dismissal is Required for Lack of Standing, Because Members of a Limited


Liability Company Cannot Sue Individually to Recover Company Property from
Another Member or Third Party

Plaintiff alleges that he is entitled to Dave Kleiman’s share of the intellectual property

and bitcoins allegedly belonging to W&K because Kleiman once was a member of W&K.

Compl. ¶¶ 75, 121, 128, 133, 139, 143. But even if Kleiman had not let W&K be

administratively dissolved the year before his death, this plaintiff would lack standing to bring

the claims for W&K’s property because members of a limited liability company (“LLC”) lack

standing to sue other members or third parties to recover LLC assets. See Fla. Stat. §

605.0110(4). The member of an LLC must bring his or her claims derivatively on behalf of the

company. See Fla. Stat. § 605.0803. Moreover, plaintiff cannot, in any event, bring derivative

claims against W&K because a former member of an LLC lacks standing to bring derivative

claims on its behalf; neither Kleiman nor his estate were members of W&K when the complaint

in this action was filed. See Compl. Ex. 5.

“Standing is ‘the threshold question in every federal case.’” In re Whittle, 449 B.R. 427,

429 (Bankr. M.D. Fla. 2011) (quoting Maverick Media Grp., Inc. v. Hillsborough Cnty.,

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Fla., 528 F.3d 817, 819 (11th Cir.2008). The plaintiff must prove standing, which is determined

as of “the time the plaintiff’s complaint is filed.” See Arcia v. Fla. Sec'y of State, 772 F.3d 1335,

1340 (11th Cir. 2014). Here, plaintiff seeks to recover bitcoins and intellectual property allegedly

once owned by W&K, a Florida LLC governed by Florida Statutes. See Fla. Stat. § 605.0110(1).

The Florida statute broadly defines an LLC’s property as “[a]ll property originally contributed to

the limited liability company or subsequently acquired by a limited liability company by

purchase or other method.” Id. Only W&K could sue directly to recover its alleged assets. Under

Florida law, LLC members have “no interest in any specific limited liability property.” Fla. Stat.

§ 605.0110(4). Thus, an LLC member suing for recovery of its property must bring a derivative

action on the LLC’s behalf. See In re Whittle, 449 B.R. 427, 430 (Bankr. M.D. Fla. 2011)

(members of LLC lacked standing to bring direct action against another member for his alleged

misuse of LLC property); see also Dinuro Inv., LLC v. Camacho, 141 So. 3d 731, 739 (Fla. 3d

DCA 2014) (shareholder cannot maintain direct action based on alleged injuries that “flow

subsequently from an initial harm to the company”).

But plaintiff did not and could not bring a derivative action. A “derivative action to

enforce a right of a limited liability company may be maintained only by a person who is a

member at the time the action is commenced.” Fla. Stat. § 605.0803 (emphasis added). Plaintiff

admits that neither Kleiman nor his estate were members of W&K when this action was

commenced on February 2, 2018. Compl. ¶¶ 60-61, Ex. 5. Kleiman created W&K in 2011,

allowed it to be administratively dissolved, and never reinstated it. See id. He died in April 2013

(id. ¶ 5), and was removed as a member of W&K in 2014, when it was reinstated by another

person. Id. Ex. 5. It was administratively dissolved again in 2016. Id. ¶¶ 60-61, Ex. 5. The

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complaint itself alleges that plaintiff was notified that Kleiman resigned from W&K before he

died. Id. ¶ 111, Ex. 18, at 19-20.

Plaintiff also cannot allege or demonstrate standing under Fla. Stat. § 605.0801, which

governs actions among LLC members. By its own terms, that statute applies only to members,

and plaintiff was not a member of W&K when he brought this lawsuit. See Compl. Ex. 5.

Moreover, plaintiff did not (and could not) allege that Dr. Wright is a member of W&K. Id. But

even if both (instead of neither) of the parties had been members of W&K when plaintiff filed

this action, section 605.0801 would have required alleging an individual injury independent of

any injury suffered by W&K. A member plaintiff must “plead and prove an actual or threatened

injury that is not solely the result of an injury suffered or threatened to be suffered by the limited

liability company.” Fla. Stat. § 605.0801(2). As a matter of law, an LLC member has not alleged

and cannot demonstrate an independent injury where the member asserts a right to recover the

LLC’s property. See In re Whittle, 449 B.R. at 430 (LLC members failed to allege independent

injury where they alleged that member defendant had wrongfully obtained funds from the LLC);

cf Compl. ¶¶ 75, 121, 128, 133, 139, 143 (asserting a right to recover Kleiman’s share of LLC

property that allegedly was wrongfully taken from W&K). Plaintiff has failed to (and cannot)

allege, much less prove, standing.

B. Plaintiff’s Claims Arising from Dr. Wright’s Possession of the Intellectual


Property Are Barred by Res Judicata Because They Were Already Decided by
the Supreme Court of New South Wales, Australia

Plaintiff—who never knew a thing about what Kleiman and Dr. Wright were working on,

let alone their alleged friendship, plans, or agreements—asks this Court to disregard two

judgments of the Supreme Court of New South Wales, Australia, against W&K in cases filed

there by Dr. Wright almost five years ago. Those judgments were rendered by a common law

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court that employs procedural safeguards similar to this Court’s, and they bar plaintiff’s claims.

See Expert Affidavit of G. Grieve, attached as Exhibit A, ¶¶ 30-39.

The Supreme Court of New South Wales has already entered judgments that Dr. Wright

is the rightful owner of the intellectual property that plaintiff claims is W&K’s. W&K assigned

that intellectual property to Dr. Wright in contracts between them, appeared as a defendant

before the Supreme Court of New South Wales in two cases brought by Dr. Wright (together, the

“Australian Lawsuits”), conceded that Dr. Wright was the owner of the intellectual property

under the contracts, and then consented to transfer to Dr. Wright title to that intellectual property

in full and final satisfaction of debts exceeding 40 million AUD in judgments entered by the

Supreme Court of New South Wales (the “Australian Judgments”) against W&K in Dr. Wright’s

favor.

As demonstrated above, plaintiff, suing on behalf of Dave Kleiman’s estate, lacks

standing to sue for the property of W&K, and his claims must therefore be dismissed. But even if

he were to attempt to amend and state claims in the name of the real party in interest, W&K,

those claims would be barred by the res judicata effect of the Australian Judgments, which would

preclude any alleged claims of W&K arising from Dr. Wright’s ownership and possession of

W&K’s intellectual property.

A federal court sitting in diversity must apply forum law to determine whether claims are

barred by res judicata. Andreu v. HP Inc., 272 F. Supp. 3d 1329, 1332 (S.D. Fla. 2017). Under

Florida law, claims are barred by a prior judgment if the following “four identities” are present:

“1) identity of the thing sued for; 2) identity of the cause of action; 3) identity of the persons and

parties to the actions; and 4) identity of the quality or capacity of the person for or against whom

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the claim is made.” ICC Chem. Corp. v. Freeman, 640 So. 2d 92, 93 (Fla. 3d DCA 1994);

Charles v. Citizens Prop. Ins. Corp., 199 So. 3d 495, 496 (Fla. 3d DCA 2016).

1. There is Identity of the Thing Sued For

The complaint seeks damages for Dr. Wright’s purportedly wrongful possession of

W&K’s intellectual property. According to plaintiff, Dr. Wright wrongfully obtained that

intellectual property from W&K in the Australian Lawsuits. See Compl. ¶¶ 75-76, 98-99. Thus,

the W&K intellectual property at issue in this lawsuit is the same intellectual property that was at

issue in the Australian Lawsuits. There is “identity of the thing sued for.”

2. There is Identity of Parties

Plaintiff appears here as Kleiman’s personal representative and alleges that Kleiman, as a

member of W&K, would have been entitled to some or all of W&K’s intellectual property. See

Compl. ¶¶ 13, 56-57, 74,121. As demonstrated above, plaintiff lacks standing to sue for W&K’s

intellectual property. The real party in interest as to those claims is, of course, W&K. But, even if

plaintiff were allowed to amend to state a derivative claim, such amendment would conclusively

establish the identity of parties between those in the Australian Judgments and those in an

amended complaint identifying W&K as the real party in interest suing Dr. Wright, the named

defendant here.

3. There is Identity of Causes of Action

For purposes of res judicata, the test for identity of causes of action is identity of facts

necessary for the maintenance of the actions. ICC Chemical Corp., 640 So.2d at 92. Although

this test sounds extremely narrow, it is not. Identity of facts necessary for the maintenance of the

actions is properly construed to mean that the evidence used to prove the claims in the second

suit would essentially be the same as the evidence used to prove the claims in the first suit. See

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Gordon v. Gordon, 59 So.2d 40, 44-45 (Fla.), cert. denied, 344 U.S. 878 (1952). The claims

raised in the second suit need not be the same as the claims raised in the first suit. See Sodikart

USA v. Geodis Wilson USA, Inc., 2014 WL 3928555, at *2 (S.D. Fla. Aug. 12, 2014) (“Florida

law does not require the causes of action to be duplicative . . .”); see, e.g., ICC Chem. Corp., 640

So.2d 92 (fraudulent misrepresentation claim held barred by res judicata, because the question

whether a fax was fraudulent was related to the defense of bad faith and coercion claims in the

first lawsuit).

The Australian Judgments for Dr. Wright against W&K were based on his allegations

that W&K owed him contractual rights. W&K’s breach of the contracts entitled him to W&K’s

intellectual property in satisfaction of amounts owed him. Here, plaintiff alleges that W&K is

entitled to damages because Dr. Wright misappropriated W&K’s intellectual property, was

thereby unjustly enriched, and wrongfully took possession of it, all based on the theory that the

contracts between Wright and W&K are invalid because they are false and fraudulent. To

maintain its claims, plaintiff must re-litigate the validity of the very same contracts on which the

Australian Judgments are based.

The validity of the contracts in question is as critical to the Australian Judgments as it is

to the plaintiff’s claims here. The existence and validity of the contracts is the central fact as to

the key question in both actions: whether Wright is the rightful owner of the W&K intellectual

property. Because the contracts themselves are the key to both actions, and because the evidence

about their validity must be the same, these claims meet the identity requirement.

4. Identity of Quality and Capacity

Finally, this action is brought against Dr. Wright, who was the plaintiff in the Australian

Lawsuits. If it were brought derivatively for W&K, plaintiff would sue for W&K in its capacity

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as a corporation, the same capacity in which W&K was sued in the Australian Lawsuits. See,

e.g., Gomez-Ortega, 670 So. 2d at 1108 (action by condominium owners held barred by condo

association’s prior action). Thus, there is identity of the status of the persons suing and being

sued.

5. Plaintiff’s Claims Are Barred Because W&K Did Not Raise Them in the
Australian Cases

“Res judicata applies to all matters actually raised and determined as well as to all other

matters which could properly have been raised and determined in the prior action, whether they

were or not.” ICC Chem. Corp. v. Freeman, 640 So. 2d 92, 93 (Fla. 3d DCA 1994); Gomez-

Ortega v. Dorten, Inc., 670 So. 2d 1107, 1108 (Fla. 3d DCA 1996). W&K could have defended

against Dr. Wright’s claim of entitlement to W&K’s intellectual property on any available

grounds, including the allegations that plaintiff raises in the complaint challenging the contracts

between Wright and W&K. Thus, plaintiff would be barred from raising those claims on W&K’s

behalf in this lawsuit even if he attempted to amend to correct his standing problem. Charles v.

Citizens Prop. Ins. Corp., 199 So. 3d 495, 496 (Fla. 3d DCA 2016) (party that failed to address

dispositive issue in prior lawsuit was barred from bringing subsequent action); Media Placement,

Inc. v. Combined Broad., Inc., 659 So. 2d 1328, 1328 (Fla. 3d DCA 1995).

C. The Court Should Dismiss the Complaint on Grounds of Forum Non


Conveniens

Even if plaintiff had standing to bring this action, and even if his potential derivative

claims were not precluded by the Australian Judgments, this lawsuit should be dismissed on

grounds of forum non conveniens. Plaintiff’s choice of forum is not convenient for the Court, Dr.

Wright, or even the plaintiff, unless his objective is to obstruct access to relevant evidence and

complicate this litigation beyond reason. See Kolawole v. Sellers, 863 F.3d 1361, 1369 (11th Cir.

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2017) (“[T]he ‘central purpose’” of forum non conveniens doctrine is “‘to ensure that the trial is

convenient’”) (quoting La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983)).

The complaint’s allegations are diffuse, scattered and contradictory, but ineluctably lead to the

conclusion that most, if not all, of the evidence the Court would need to adjudicate plaintiff’s

alleged claims is outside the forum, outside Florida, outside the United States altogether, and not

subject to jurisdiction or compulsory process anywhere in this country.

This lawsuit was filed against a citizen of Australia, about alleged conduct in Australia,

involving potential witnesses and documents in Australia (including Australian government

officials and reports), and requiring the application of Australian law. Even if the complaint’s

purported claims hadn’t already been adjudicated by the Supreme Court of New South Wales,

Australia, this action would belong in Australia (if anywhere). This Court has broad discretion to

dismiss an action on grounds of forum non conveniens when “(1) an adequate, alternative forum

is available and (2) the public and private factors weigh in favor of dismissal.” Kolawole, 863

F.3d at 1369. Here, the Supreme Court of New South Wales is an adequate, alternative forum,

and the public and private interest factors weigh heavily in favor of dismissal. See Banco Latino

v. Gomez Lopez, 17 F. Supp. 2d 1327, 1331 (S.D. Fla. 1998) (citing Piper Aircraft Co. v. Reyno,

454 U.S. 235, 240 (1981)).

1. The Supreme Court of New South Wales, Australia is an Alternate Forum that
is Both Available and Adequate

“Demonstrating the availability of a forum is not an especially onerous burden for a

defendant seeking dismissal for forum non conveniens.” Kolawole, 863 F.3d at 1369; Banco

Latino, 17 F. Supp. 2d at 1331. A forum is available if the defendant is amenable to process

there. See Banco Latino, 17 F. Supp. 2d at 1331 (“Ordinarily, this requirement will be satisfied

where the defendant is amenable to process in the other jurisdiction.”). The Supreme Court of

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New South Wales is an available forum because Dr. Wright is amenable to service of process in

New South Wales. See Declaration of Craig Wright, attached as Exhibit B, ¶ 23; Grieve Aff. ¶¶

49-56.

An alternative forum is adequate when it provides remedies that are similar to those

available in the plaintiff’s selected forum. Kolawole, 863 F.3d at 1370 (forum adequate where

expert testimony showed that alternative forum had substantially similar remedies); accord Leon

v. Millon Air, Inc., 251 F.3d 1305, 1314 (11th Cir. 2001); Banco Latino, 17 F. Supp. 2d at 1331

(describing an inadequate forum as one that is so “clearly . . . unsatisfactory that it is no remedy

at all”); Cleveland v. Kerzner Int'l Resorts, Inc., 2015 WL 5695276, at *5 (S.D. Fla.

2015), aff'd, 657 F. App'x 924 (11th Cir. 2016). The Supreme Court of New South Wales is an

adequate forum, because the courts of New South Wales are English-speaking, common-law

courts that employ procedural safeguards like those of this Court, and the laws of New South

Wales provide legal and equitable remedies that are substantially similar to the remedies

available in this Court. See Grieve Aff. ¶¶ 57-58.

2. The Private Interest Factors Overwhelmingly Favor Dismissal

“The private interests courts may weigh include the ‘ease of access to sources of proof;

availability of compulsory process for attendance of unwilling witnesses, and the cost of

obtaining attendance of willing witnesses . . . and all other practical problems that make trial of a

case easy, expeditious and inexpensive.” Kolawole, 863 F.3d at 1372. Plaintiff has not identified

a Florida-based witness with any relevant evidence or personal knowledge of his allegations,

including himself. See Compl. ¶¶ 4-5, 104-05. The only Florida-based evidence the complaint

cites are some corporate records (id. Exs. 2, 5), which anyone with an internet connection or

telephone can obtain from anywhere in the world. See www.sunbiz.org.

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Lacking any Florida-based witnesses or documents to support his claims, and lacking any

personal knowledge of his own allegations, plaintiff relied almost exclusively on online tabloids

that purported to provide unlawful leaks of confidential ATO transcripts and stolen or hacked

emails. See Compl. ¶¶ 54, 63-70; Ex. 1, 7-8, 12. Plaintiff’s complaint also relied on Australian

legal documents, including the Australian Judgments rendered by the Supreme Court of New

South Wales, and the Deed and New Venture Contracts, which require the application of

Australian law and contain the parties’ agreement to submit any dispute to the jurisdiction of the

courts of New South Wales, Australia. See id., Exs. 4, 7, 10-13, 15-16. This Court would not

have authority to compel Australian citizens, hackers, thieves, or the Australian government to

produce and authenticate confidential documents, or to compel Australian government officials

or attorneys to testify about privileged or confidential matters. See Cleveland v. Kerzner Int'l

Resorts, Inc., 2015 WL 5695276, at *6, n. 8 (S.D. Fla. 2015), aff'd, 657 F. App'x 924 (11th Cir.

2016).

Even assuming, arguendo, that plaintiff had personal knowledge of his allegations, he

would be the only potential witness identified in the complaint who is located in Florida. But he

admits he has no personal knowledge of the matters at issue. See Compl. ¶¶ 4-6, 105. In contrast,

there are at least 16 potentially relevant witnesses and companies located outside in Australia.

Wright Aff. ¶¶ 20-21. Of the potential witnesses in Australia, five are former or current

Australian government officials. Id. at 20(a)-(b), (d)-(e), (i). According to the complaint,

Australian tax officials would be witnesses to statements taken during a confidential

investigation they conducted and potentially would have access to related documents (see

Compl. ¶¶ 62, 64-66, Exs. 6-7, 12), which also would be confidential and protected from

disclosure by Australian law. Grieve Aff. ¶¶ 9-22. Another witness located in Australia is

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Andrew Sommer, Wright’s Australian attorney. Wright Aff. ¶ 20(h). His potential testimony is

subject to an attorney-client privilege bounded by Australian law.

Thus, even if this Court could compel these potential witnesses to appear in Florida, they

still could not lawfully testify about privileged or confidential matters, unless ordered do so by

an Australian court applying Australian law. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 242,

258 (1981) (Dismissal on grounds of forum non conveniens is appropriate where necessary

witnesses are not subject to compulsory process in the forum.); Ford v. Brown, 319 F.3d 1302,

1308 (11th Cir. 2003) (“Perhaps the most important ‘private interest’ of the litigants is access to

evidence.”); Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1335 (11th Cir. 2011) (affirming that district

court’s inability to compel defendants’ “third-party witnesses or the production of documents

from those witnesses . . . is both unusually extreme and materially unjust”) (internal quotation

marks omitted); Montgomery v. Oberti, 945 F. Supp. 2d 1367, 1376 (S.D. Fla. 2013) (“[N]o

adequate substitute exists for the witnesses’ live testimony and that lack of access to [] testimony

. . . . strongly outweigh[s] Plaintiff’s choice of a United States forum.”). Further, even if this

Court could compel those witnesses to appear, and an Australian court compelled them to testify,

bringing them here from the other side of the globe would be extremely costly and disruptive.

Plaintiff, who cites few (if any) sources of evidence in Florida, cannot possibly justify needlessly

asking or attempting to compel most of the relevant witnesses to spend more than 24 hours

traveling more than 10,000 miles from Australia to testify in Florida about events that happened

in Australia. See Ford, 319 F.3d at 1308 (holding that private interest factors favored dismissal

where alleged acts occurred in Hong Kong and, as a result, “much of the evidence is likely to be

in Hong Kong”). To make matters worse, this Court could not properly adjudicate this lawsuit

without disregarding, disrespecting, and undermining the Australian court that rendered the

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Australian Judgments and that court’s unique interest in determining whether someone

committed a fraud on it. See Florida Evergreen Foliage v. E.I. Dupont De Nemours & Co., 336

F. Supp. 2d 1239, 1271 (S.D. Fla. 2004), aff'd, 470 F.3d 1036 (11th Cir. 2006).

In contrast, this Court’s dismissal of this action on forum non conveniens grounds would

not prejudice plaintiff. The complaint demonstrates that even if there is any evidence in Florida,

it is minimal and easily transferrable to, or obtainable in, Australia. Moreover, even if this case

were to proceed in this Court, plaintiff would need Australian counsel to litigate in Australia the

privacy and confidentiality issues arising from confidential communications and other evidence

located there and subject exclusively to Australian jurisdiction. Grieve Aff. ¶¶ 9-22; Wright Aff.

¶¶ 17-18, 22. Finally, even if it were possible (it’s clearly not) for the Court to conveniently

adjudicate this case and render a judgment for plaintiff, he still would need to retain foreign

counsel for foreign proceedings to enforce that judgment. Grieve Aff. ¶¶ 23-29; Wright Aff. ¶ 5.

Australian courts are competent, common-law courts where plaintiff could bring his

claims, seek similar relief with similar procedural safeguards (Grieve Aff. ¶¶ 39, 57-58) and

discuss the case with his attorneys and testify in English. The private interest factors

overwhelmingly support dismissal.

3. The Public Interest Factors Overwhelmingly Favor Dismissal

The public interest factors overwhelmingly favor the Court’s dismissal of this case. They

include: “(1) the administrative difficulties stemming from court congestion; (2) the interest in

having localized controversies decided at home; (3) the interest in having the trial of a diversity

case in a forum that is familiar with the law that must govern the action; (4) the avoidance of

unnecessary problems of conflict of laws, or the application of foreign law; and (5) the

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unfairness of burdening citizens in an unrelated forum with jury duty.” Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 241 n.6 (1981).

The Southern District of Florida is one of the busiest districts in the United States. This

lawsuit could take years to adjudicate and would heavily (and completely unnecessarily) tax the

Court’s time and resources. See Kalb v. Marriott Int'l, Inc., 2017 WL 6565243, at *4 (S.D. Fla.

2017) (“The Court notes that the Southern District of Florida has one of the busiest dockets in

the country, and this factor, thus weighs in favor of dismissal.”). As we demonstrate below, Dr.

Wright is not subject to personal jurisdiction in this district, but even if he were, and even if this

case could be adjudicated here, it would require not only all the time and resources required by a

complicated commercial dispute, but an unknown and unknowable additional amount of time

and resources arising from the need to obtain almost all of the evidence in Australia, in satellite

proceedings subject to Australian law. The likelihood that a case will spawn significant satellite

proceedings in a foreign jurisdiction heavily skews the public interest in favor of adjudicating the

entire case there. See Kolawole v. Sellers, 863 F.3d 1361, 1372 (11th Cir. 2017)

For example, the complaint relies heavily on tabloid reports of alleged admissions by Dr.

Wright in documents purporting to be leaked transcripts of a confidential interview conducted by

the ATO. Compl. Exs. 6-7. The complaint relies so heavily on these tabloid reports that it

attempts to base claims on a self-serving interpretation of a purported statement by an ATO

auditor regarding what that auditor may have been led to believe by an unnamed person. Id. ¶ 65.

The problems arising from that allegation alone are thorny and potentially insurmountable

because of the limits on the Court’s jurisdiction over potential witnesses and documents. Those

problems include the near impossibility of obtaining testimony from the employees of a foreign

sovereign concerning a confidential investigation. Grieve Aff. 7-22.

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Plaintiff’s claims are based entirely on alleged conduct that occurred outside of Florida

and rely on a threshold claim that Dr. Wright allegedly committed fraud on an Australian court

in two lawsuits.4 The Supreme Court of New South Wales and the judges who adjudicated the

Australian Cases are in the best position to decide whether a fraud was committed. See Tr. Int'l

Corp. v. Nagy, 2017 WL 5248425, at *4–5 (S.D. Fla. 2017). Moreover, asking the Australian

witnesses in those cases to appear here so plaintiff can assail their testimony, then demand that

this Court second guess the Australian judges and decide that Australian procedures were

inadequate, would be extraordinarily improper. See Piper Aircraft Co. v. Reyno, 454 U.S. 235,

242-43 (1981).

This case is the paradigm of a dispute that is not localized in Florida and should be

adjudicated elsewhere. Plaintiff never participated in Dave Kleiman’s work or even knew about

it. He invested nothing, in Florida or anywhere else, in creating Bitcoin, operating W&K, or

developing any intellectual property. Moreover, Dave Kleiman’s Florida apartment was merely a

place where he kept computers that allowed him to conduct international business activities in an

international marketplace. Dave Kleiman and Dr. Wright first met in an online cryptocurrency

forum, and Dr. Wright has only been to Florida once in his life to attend a conference entirely

unrelated to the allegations of the lawsuit. Wright Aff. ¶ 1. Dave Kleiman even told plaintiff that

he was working with a “foreign man” to create “digital money.” Compl. ¶ 49 (emphasis added).

That foreign man was an Australian citizen, and the foreign judgment plaintiff demands to

4
As a matter of law, a court that allegedly was defrauded is the court that gets to decide if it was
defrauded. Florida Evergreen Foliage v. E.I. Dupont De Nemours & Co., 336 F. Supp. 2d 1239,
1271 (S.D. Fla. 2004), aff'd, 470 F.3d 1036 (11th Cir. 2006). This rule is ironclad, except in rare
cases where due process and fundamental fairness are lacking in the other court. Id. No
allegation that the courts of Australia will not afford plaintiff due process have (or could have
been) been made in the complaint.

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relitigate and set aside was rendered by an Australian court. If any relitigation is to occur, it

should not be in the Southern District of Florida.

D. The Court Should Dismiss the Complaint on Grounds of International


Abstention Because This Dispute Was Adjudicated in 2013 by the Supreme
Court of New South Wales, Australia

The Supreme Court of New South Wales entered the Australian Judgments in 2013.

W&K appeared before the Supreme Court of New South Wales in both cases and conceded that

it owed Dr. Wright two contractual debts, each exceeding 20 million AUD. In his statements of

claim for the First and Second Australian Lawsuits, Dr. Wright alleged that under the contracts,

W&K had agreed that “all created intellectual property reverts to the ownership of [Dr. Wright]

with interest if the project concludes without assignment of shares in [W&K].” Compl. Ex. 13, at

4, 10. In each of the Australian Judgments, the Supreme Court of New South Wales noted “the

agreement of the parties that [Dr. Wright] will accept the transfer of Intellectual property held by

[Dr. Wright] in full and final satisfaction of the judgment.” Id. Ex. 15, at 2, Ex. 16, at 2. In the

Australian Judgment concluding the First Australian Lawsuit, the court ordered that the “deed of

transfer for the Intellectual Property is to be completed before 01 Sept 2013.” Id. Ex. 16, at 2.

In this case, plaintiff alleges that Dr. Wright obtained the Australian Judgments by

committing a fraud on the Australian courts. Compl. ¶ 101. Plaintiff demands that this Court

review and void those judgments, supplanting its findings for those rendered by the Supreme

Court of New South Wales almost five years ago. The Court should abstain from this intrusion

on the sovereignty of the Australian courts, and allow the Supreme Court of New South Wales to

decide whether its findings and judgments were correct, or whether a fraud was committed on it.

Abstaining on grounds of international comity promotes: “(1) a proper level of respect for

the acts of our fellow sovereign nations—a rather vague concept referred to in American

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jurisprudence as international comity; (2) fairness to litigants; and (3) efficient use of scarce

judicial resources.” See Turner Entm't Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir.

1994). Below, we demonstrate that the criteria relevant to these principles, e.g., Tr. Int'l Corp. v.

Nagy, 2017 WL 5248425, at *4–5 (S.D. Fla. 2017), all support abstention here.

1. Abstention Advances the Goal of International Comity with Australian Courts

The United States and Australia have long acknowledged and respected each other’s legal

systems and judgments. See Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 359 (10th Cir.

1996); Auxer v. Alcoa, Inc., 406 F. App'x 600, 603 (3d Cir. 2011). The complaint did not and

could not allege otherwise. Whether abstention advances the principle of international comity

depends on “(1) whether the judgment was rendered via fraud; (2) whether the judgment was

rendered by a competent court utilizing proceedings consistent with civilized jurisprudence; and

(3) whether the foreign judgment is prejudicial, in the sense of violating American public policy

because it is repugnant to fundamental principles of what is decent and just.” Turner Entm't Co.,

25 F.3d at 1518 (internal citation omitted).

a. The Complaint Does Not Allege that the Australian Judgments Were Rendered
by Fraud Committed by the Australian Court

Whether a foreign judgment was rendered by fraud relates exclusively to “whether a

foreign court was acting fraudulently and is a forum so incompetent in its standards that its

procedures cannot be squared with the principles underlying the American legal system.” Tr.

Int'l Corp., 2017 WL 5248425, at *6. The question is manifestly not “whether the parties have

acted deceptively or fraudulently.” Id. That is a question that should be answered by the foreign

court that rendered the judgment. Id. (“A party can act fraudulently before any court. If

Defendant has used the Hungarian legal system in some way which was not above board, then

the Hungarian forum was the correct place to address this concern.”). This is an unexceptional

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principle that also drives the unexceptional rule that a court in the United States that allegedly

was defrauded is the court that gets to decide whether it was defrauded. See Florida Evergreen

Foliage v. E.I. Dupont De Nemours & Co., 336 F. Supp. 2d 1239, 1271 (S.D. Fla.

2004), aff'd, 470 F.3d 1036 (11th Cir. 2006) (“[T]he proper forum in which to assert that a party

has perpetrated a fraud on the court is the court which allegedly was a victim of that fraud.”)

(internal quotation marks omitted). A court of another state or federal jurisdiction does not look

over the first court’s shoulder and purport to decide whether the first court was defrauded. Banco

Latino v. Gomez Lopez, 17 F. Supp. 2d 1327, 1332 (S.D. Fla. 1998) (“It is not the business of our

courts to assume responsibility for supervising the integrity of the judicial system of another

sovereign nation.”) (quoting Blanco v. Banco Indus. de Venezuela, S.A., 997 F.2d 974, 982 (2nd

Cir.1993) (internal quotation marks omitted).

Here, plaintiff alleges that Dr. Wright obtained the Australian Judgments “by

perpetuating a fraud on the New South Wales court.” Compl. ¶ 101. Whether there is any truth to

that allegation is a question that must be addressed to the foreign court that rendered the

judgments in question, namely, the Supreme Court of New South Wales. E.g., Banco Latino, 17

F. Supp. 2d at 1332. Plaintiff did not (and could not) allege that the Supreme Court of New

South Wales “was acting fraudulently and is a forum so incompetent in its standards that its

procedures cannot be squared with the principles underlying the American legal system.” Tr.

Int'l Corp., 2017 WL 5248425, at *6.

b. The Judgments were Rendered by a Competent Court in Proceedings


Consistent with Civilized Jurisprudence

The Supreme Court of New South Wales, Australia is a competent, English-speaking,

common-law court that employs procedural safeguards similar to those of this Court. See Grieve

Aff. ¶¶ 30-39; Auxer v. Alcoa, Inc., 406 F. App'x 600, 603 (3d Cir. 2011) (“[N]umerous federal

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courts have found Australia to be an adequate alternative forum . . . .”); Allstate Life Ins. Co. v.

Linter Grp. Ltd., 1992 WL 398446, at *6 (S.D.N.Y. Dec. 21, 1992), aff'd, 994 F.2d 996 (2d Cir.

1993) (dismissing claims to be litigated in Australian courts); Interpane Coatings, Inc. v.

Australia & New Zealand Banking Grp. Ltd., 732 F. Supp. 909, 918 (N.D. Ill. 1990) (dismissing

claims to be heard by the Supreme Court of New South Wales, Australia).

c. The Foreign Judgments Do Not Violate American Public Policy as Repugnant


to Fundamental Principles of What is Decent and Just

A judgment entered on a defendant’s unequivocal admission of liability does not violate

American or Australian public policies and is not repugnant to fundamental principles of what is

decent and just. See Blanco GmbH ±Co. KG v. Vlanco Indus., LLC, 992 F. Supp. 2d 1225, 1245

(S.D. Fla. 2014), aff'd sub nom., Blanco GmbH ±Co. KG v. Laera, 620 Fed. Appx. 718 (11th Cir.

2015) (“A consent judgment has the same effect as any other judgment rendered by a court.”). In

the Australian Lawsuits, Dr. Wright alleged that W&K had breached two contracts and that he

owned the rights to the intellectual property. Compl. Ex. 13, at 4, 10. W&K conceded the

breaches and Dr. Wright’s full rights to the intellectual property. Id. Exs. 15-16. The Supreme

Court of Australia entered the Australian Judgments finding that W&K had breached its

contractual obligations, ordered W&K to transfer the deed for the intellectual property to Dr.

Wright, and concluded that Dr. Wright would accept the intellectual property in full and final

satisfaction of the Australian Judgments. Id. The Australian Judgments are final adjudications of

the Australian Lawsuits on their merits. Grieve Aff. ¶ 37.

The Australian Judgments do not violate American public policy or fundamental

principles of what is decent and just, because W&K’s admissions and consent would have had

the same effect if they had made before this Court. See Mil-Tec USA, Inc. v. ABC Tool, Inc., 939

F. Supp. 853, 854 (M.D. Fla. 1996) (enforcing terms of consent judgment where defendant

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admitted that the plaintiff was the owner of intellectual property); see also Belize Telecom, Ltd.

v. Gov't of Belize, 528 F.3d 1298, 1307 (11th Cir. 2008) (abstaining on grounds of international

comity where foreign court enforced contract based on plain-language interpretation of its

terms). Moreover, the Supreme Court of New South Wales permits a plaintiff to challenge the

validity of judgments rendered as a result of a fraud on the court. Grieve Aff. ¶¶ 40-48. Thus,

dismissal would not prejudice plaintiff.

d. The Australian Interests Outweigh the American Interests

“Also relevant to considerations of international comity are the relative strengths of the

American and [foreign jurisdiction’s] interests.” Turner Entm't Co. v. Degeto Film GmbH, 25

F.3d 1512, 1521 (11th Cir. 1994). Plaintiff seeks recovery for purported misconduct that

occurred outside of the United States, relating to Dave Kleiman’s participation in overseas

business activities, including creating “digital money” with a “foreign man.” Compl. ¶ 49. There

are no American interests implicated in this action other than a Florida plaintiff’s desire for a

money judgment, evidently driven by his inability to learn the codes that would unlock Dave

Kleiman’s Bitcoin wallet. Id. ¶ 20. On the other hand, there are numerous Australian interests

involved in protecting the integrity of proceedings and judgments of Australian courts in matters

involving an Australian citizen’s business interests in Australia, and Australian government

investigations of those interests, including investigations by the ATO. See Florida Evergreen

Foliage v. E.I. Dupont De Nemours & Co., 336 F. Supp. 2d 1239, 1271 (S.D. Fla.

2004), aff'd, 470 F.3d 1036 (11th Cir. 2006); Piguet v. J.P. Morgan Chase Bank, N.A., 2017 WL

1655234, at *3 (S.D. Fla. May 2, 2017); Manzaro v. D'Alessandro, 229 So. 3d 843, 845 (Fla. 4th

DCA 2017), review denied, 2018 WL 507417 (Fla. Jan. 23, 2018). They plainly outweigh the

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solitary American interest of a Florida plaintiff seeking a money judgment for activities distant

from our soil.

2. Abstention is Fair to the Litigants

“With respect to the goal of fairness, relevant considerations include: (1) the order in

which the suits were filed; (2) the more convenient forum; and (3) the possibility of prejudice to

parties resulting from abstention.” Turner Entm't Co., 25 F.3d at 1521–22.

a. The Australian Lawsuits Were Filed First

The Australian Lawsuits were filed and concluded long before this action was

commenced. Accordingly, for plaintiff’s case to proceed, this Court would have to void the

Australian Judgments without giving the Australian court its opportunity to determine if it was

defrauded.

b. The Australian Courts are the More Convenient Forum

As demonstrated above, none of the witnesses and relevant documents are located in

Florida, except for corporate records that can be accessed by phone or online, anywhere in the

world. In contrast, the complaint lists at least 16 potentially relevant witnesses and companies

located in Australia. Wright Aff. ¶¶ 20-21. Of those, five are current or former employees of the

ATO. Id. at 20(a)-(b), (d)-(e), (i). The court lacks jurisdiction over those parties and the authority

to compel their presence here. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 242 (1981) (“[B]ecause

crucial witnesses and evidence were beyond the reach of compulsory process . . . it would be

‘unfair to make [the defendents] proceed to trial in this forum.’”). Moreover, it would be

repugnant to fairness, convenience, and efficiency to require those potential witness to travel

from Australia to testify in Florida about events that happened in Australia, especially when a

competent, English-speaking, common-law court in Australia entered two judgments precluding

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plaintiff’s claims and would provide plaintiff the opportunity to be heard on whether those

Australian Judgments were, as he alleges, the result of a fraud on the court. Grieve Aff. ¶¶ 40-48,

57-58; see Florida Evergreen Foliage, 336 F. Supp. 2d at 1271 (“[T]he proper forum in which to

assert that a party has perpetrated a fraud on the court is the court which allegedly was a victim

of that fraud.”); Banco Latino v. Gomez Lopez, 17 F. Supp. 2d 1327, 1332 (S.D. Fla. 1998)

(internal citation omitted); see also Tr. Int'l Corp. v. Nagy, 2017 WL 5248425, at *4–5 (S.D. Fla.

2017).

c. There Will be No Legally Cognizable Prejudice to the Parties from Abstention

There will be no legally cognizable prejudice to the parties from abstention, because

under Australia’s Uniform Civil Procedure Rules, plaintiff can petition an Australian court to set

aside the Australian Judgments (Grieve Aff. ¶¶ 39-48), and he can bring causes of action that are

the same or substantially similar to those in the complaint. Grieve Aff. ¶¶ 57-58. In contrast, not

abstaining would deny Dr. Wright access to potential witnesses and evidence he would need to

rebut the allegations against him. See Wright Aff. ¶¶ 20-21.

3. Abstention Will Promote the Efficient Use of Scarce Judicial Resources

In determining whether abstention will promote the efficient use of scarce judicial

resources, the Court should consider “(1) the inconvenience of the federal forum, (2) the

desirability of avoiding piecemeal litigation, (3) whether the actions have parties and issues in

common and (4) whether the alternative forum is likely to render a prompt disposition.” ITL Int'l,

Inc. v. Walton & Post, Inc., 741 F. Supp. 2d 1313, 1317 (S.D. Fla. 2010). Here, Dr. Wright has

established the inconvenience of this forum because the Court lacks authority to compel any of at

least 16 potential witnesses and companies in Australia to appear for trial or produce documents.

Wright Aff. ¶¶ 20-21. Moreover, abstention promotes the policy of avoiding piecemeal litigation.

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If the Court were to retain jurisdiction, the parties still would have to litigate issues in Australian

courts regarding documents and witnesses in Australia that are exclusively subject to its laws and

jurisdiction. See id.; Grieve ¶¶ 11-29.

As demonstrated above, the Australian Judgments concluded disputes about Dr. Wright’s

rights to W&K’s intellectual property, the same intellectual property that plaintiff demands this

Court find was owned by W&K. The Supreme Court of New South Wales is the proper forum to

adjudicate whether those Australian Judgments were entered as a result of a fraud on that court.

See Tr. Int'l Corp., 2017 WL 5248425, at *4–5. Moreover, it offers remedies to invalidate

fraudulent judgments, and can adjudicate plaintiff’s claims without delay. Grieve Aff. ¶¶ 39-48,

57-58.

E. There is No Personal Jurisdiction Over Wright in Florida

Plaintiff alleges that the Court may exercise specific personal jurisdiction pursuant to

sections 48.193(1)(a)(1), (2), and (6) of Florida’s long-arm statute. Compl. ¶ 14. Specific

personal jurisdiction must “arise out of a party’s activities in the forum that are related to the

cause of action alleged in the complaint.” Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286,

1291 (11th Cir. 2000). Moreover, a plaintiff “must do more than allege facts that show

a possibility of jurisdiction.” L.O.T.I. Grp. Prods. v. Lund, 907 F. Supp. 1528, 1530–31 (S.D.

Fla. 1995) (citing Jet Charter Serv. Inc. v. Koeck, 907 F.2d 1110, 1112 (11th Cir.1990)

(emphasis added), cert. denied, 499 U.S. 937 (1991)).

Here, the complaint proves only the impossibility of personal jurisdiction over Dr. Wright

in Florida because: (1) Dr. Wright did not operate or engage in a Florida business or business

venture; (2) plaintiff cannot demonstrate that Dr. Wright committed a tort in Florida with claims

based on purportedly fraudulent conduct before an Australian court; and (3) plaintiff does not

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allege a claim for physical damage to a person or property, but cites a provision of Florida’s

long-arm statute that applies only to cases involving physical damage to persons or property.

1. There is No Personal Jurisdiction Under Fla. Stat. § 48.193(1)(a)(1) Because


Dr. Wright Never Operated or Engaged in a Business or Business Venture in
Florida

Under section 48.193(1)(a)(1), a plaintiff must demonstrate that its claims “arise from”

the nonresident defendant’s “general course of business activity in the state for pecuniary

benefit,” as evidenced by: “(1) ‘the presence and operation of an office in Florida’; (2) ‘the

possession and maintenance of a license to do business in Florida’; (3) ‘the number of Florida

clients served’; and (4) ‘the percentage of overall revenue gleaned from Florida clients.’”

Stonepeak Partners, LP v. Tall Tower Capital, LLC, 231 So. 3d 548, 555 (Fla. 2d DCA 2017)

(quoting RMS Titanic, Inc. v. Kingsmen Creatives, Ltd., 579 Fed. Appx. 779, 783 (11th Cir.

2014)). Here, plaintiff attempts to satisfy section 48.193(1)(a)(1) by alleging that Dr. Wright was

Kleiman’s business partner in W&K, a purported joint venture. Compl. ¶¶ 14, 138.

Plaintiff cannot establish that Kleiman and Dr. Wright were engaged in a joint venture in

Florida. Under Florida law, a “joint venture must arise from a contract that includes all of the

following elements: “(1) a community of interest in the performance of the common purpose, (2)

joint control or right of control, (3) a joint proprietary interest in the subject matter, (4) a right to

share in the profits and (5) a duty to share in any losses which may be sustained.” Stonepeak

Partners, 231 So. 3d at 553 (quoting Jackson–Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d

1076, 1089 (Fla. 2008)); Vannamei Corp. v. Elite Int'l Telecommunications, Inc., 881 So. 2d 561,

562–63 (Fla. 3d DCA 2004) (“[S]uch a contract is an indispensable prerequisite.”). “If one

element is absent it precludes the finding of a joint venture.” Stonepeak Partners, 231 So. 3d at

553. When, as here, the alleged joint venture is not evidenced by a written contract, “the burden

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of establishing the existence of such contract, including all of its essential elements, is indeed, as

it should be, a heavy and difficult one.” Vannamei Corp., 881 So. 2d at 562–63 (Fla. 3d DCA

2004) (quoting Kislak v. Kreedian, 95 So.2d 510, 515 (Fla.1957)).5

Plaintiff did not (and cannot) establish personal jurisdiction over Dr. Wright under

section 48.193(1)(a)(1) because Dr. Wright has never operated or engaged in a business or

business venture in Florida. Wright Aff. ¶ 12. He does not have assets, property, funds, business

interests, or bank accounts in the United States. Id. ¶ 5. He’s never had an office in Florida (id. ¶

6), or had a license to do business in Florida. Id. ¶ 7. Dr. Wright has never advertised services in

Florida or to Florida residents (id. ¶ 8), or ever been a member, director, shareholder, officer,

employee or representative of W&K or of any Florida business. Id. ¶ 12. He has never shared in

the profits, or had a duty to share in the losses, of W&K or any Florida business. Id. ¶ 10. Dr.

Wright never exercised authority or control over W&K or any Florida business, nor had any right

to do so. Id. ¶ 13. He has never been an agent for W&K or any Florida business. Id. ¶ 11. Dr.

Wright is a citizen of Australia and a resident of London who has been to Florida only once in

his life for approximately seven days to speak at a conference unrelated to Bitcoin, W&K, or

Kleiman. Id. ¶ 1.

Plaintiff cites official records from the Florida Department of State Division of

Corporation that establish that Dr. Wright was not a member of W&K. Compl. Exs. 2, 5. Those

records show that Kleiman established W&K in 2011. Id. Ex. 2. He listed himself as the sole

manager, member, and registered agent of the company. Id. ¶ 56, Ex. 2. Kleiman allowed W&K

to be administratively dissolved within a year and never reinstated it. Id. Ex. 5, at 2. To the

5
Plaintiff’s purported “oral joint venture” theory also violates the statute of frauds, as
demonstrated below.

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extent that W&K had a presence or operation in Florida, it would have been located at Kleiman’s

home, which he listed as W&K’s principal office. Id. ¶ 56, Ex. 2. Dr. Wright has never been to

Kleiman’s home or any office of W&K anywhere. Id. ¶ 4.

2. There is No Personal Jurisdiction Under Fla. Stat. § 48.193(1)(a)(2) Because


There is No Allegation that a Substantial Aspect of the Alleged Torts Occurred
in Florida

Section 48.193(1)(a)(2) applies to nonresident defendants who commit a “tortious act

within the state.” A plaintiff must show that the nonresident committed a “substantial aspect of

the alleged tort in Florida by establishing that the activities in Florida were essential to the

success of the tort.” Live Face on Web, LLC v. Tweople, Inc., 2014 WL 12611357, at *2 (M.D.

Fla. 2014) (quoting Cable/Home Commc'ns Corp. v. Network Prods., Inc., 902 F.2d 829, 857

(11th Cir. 1990)); accord Banco de los Trabajadores v. Moreno, 2018 WL 522186, at *6 (Fla. 3d

DCA 2018) (no personal jurisdiction found, where “no element of the underlying tort is alleged

to have occurred in Florida”); Miami Breakers Soccer Club, Inc. v. Women's United Soccer

Ass'n, 140 F. Supp. 2d 1325, 1329 (S.D. Fla. 2001) (substantial aspect of trademark infringement

did not occur in Florida even though website with trademarked content could be seen in Florida

and trademarks were used during the NFL combine and draft in Florida). Suffering alleged

effects in Florida of a tort committed elsewhere is insufficient to confer personal jurisdiction

over a nonresident defendant. See Stonepeak Partners, 231 So. 3d at 554.

In L.O.T.I. Grp. Prods. v. Lund, 907 F. Supp. 1528 (S.D. Fla. 1995), a Florida filmmaker

sued a nonresident defendant alleging that he tortiously violated the filmmaker’s copyrights by

distributing certain films in Florida and Europe. The court lacked personal jurisdiction because

“[e]very aspect of the allegedly tortious conduct, other than the delivery of 3 video cassettes,

took place outside [Florida].” Id. at 1532.

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Similarly, in Wiggins v. Tigrent, Inc., 147 So. 3d 76 (Fla. 2d DCA 2014), the court lacked

personal jurisdiction over a nonresident defendant sued for conversion for allegedly taking funds

from the Florida plaintiff’s bank account in Delaware. The court reasoned that a substantial

aspect of the alleged conversion had not occurred in Florida because the defendant “allegedly

gained dominion and control over the funds” outside of Florida. Id. at 87. And, in Musiker v.

Projectavision, Inc., 960 F. Supp. 292 (S.D. Fla. 1997), the court found that the nonresident

defendant did not commit a substantial aspect of the alleged tort in Florida where he made

misrepresentations on “[t]wo telephone calls out of six months of allegedly continuous contact.”

960 F. Supp. at 297.

This lawsuit arises from plaintiff’s claim that Dr. Wright took bitcoins and intellectual

property from W&K by “perpetuating a fraud on the Supreme Court of New South Wales”

(Compl. ¶ 101), causing entry of the Australian Judgments finding that those assets belonged to

Dr. Wright pursuant to two contracts between W&K and Dr. Wright. Id. Exs. 15-16. Plaintiff

alleges that Kleiman held some or all of those bitcoins in trusts outside of the United States,

including in trusts in the Seychelles, Singapore, and the UK. Id. ¶¶ 66, 68-69, 73. He does not

allege that W&K or Kleiman held any bitcoins in the United States and, to the extent he did have

any in bitcoins in the United States, it is likely that the private keys needed to access them are on

Kleiman’s encrypted hard drives being held by plaintiff. Id. ¶ 63, Ex. 9, at 2, Ex. 18, at 8-9, 12,

20. Plaintiff offered to send those hard drives to Dr. Wright, who declined to accept them. Id. Ex.

18, at 8, 20.

Plaintiff did not (and cannot) allege that Dr. Wright did anything in Florida to obtain the

Australian Judgments, the intellectual property, or the related bitcoins. Dr. Wright’s single trip to

Florida was in March 2009 (Wright Aff. ¶ 1), more than four years before he purportedly

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“perpetuated a scheme against [plaintiff],” which the complaint alleges commenced after

Kleiman died in April 2013. Compl. ¶¶ 6, 75. Thus, plaintiff has failed to (and cannot) allege that

Dr. Wright committed a tortious act within the State.

3. There is No Personal Jurisdiction under Fla. Stat. § 48.193(1)(a)(6)(a) Because


Plaintiff Did Not Allege Personal Injury or Physical Property Damage, and Dr.
Wright Has Never Engaged in Solicitation or Service Activities in Florida

Florida courts exercise personal jurisdiction under section 48.193(1)(a)(6)(a) only where

a plaintiff has alleged that a nonresident caused physical injury to persons or property within

Florida, while engaged in solicitation or service activities in Florida. Section 48.193(1)(a)(6)(a)

does not apply where, as here, plaintiff asserts “only economic loss unaccompanied by personal

injury or physical property damage.” RMS Titanic, Inc. v. Kingsmen Creatives, Ltd., 2013 WL

12091142, at *4 (M.D. Fla. 2013), aff'd, 579 F. App'x 779 (11th Cir. 2014); Aetna Life & Cas.

Co. v. Therm-O-Disc, Inc., 511 So. 2d 992, 994 (Fla. 1987) (“We hold that the provisions of

[former] section 48.193(1)(f) contemplate personal injury or physical property damage.”); Turi v.

Stacey, 2015 WL 403228, at *10 (M.D. Fla. 2015), aff'd, 627 F. App'x 904 (11th Cir. 2015) (no

personal jurisdiction under section 48.193(1)(a)(6) where plaintiff alleged conversion of

property); Hinkle v. Cont'l Motors, Inc., 268 F. Supp. 3d 1312, 1325–26 (M.D. Fla.

2017), appeal dismissed, 2017 WL 5635149 (11th Cir. 2017).

Moreover, even if plaintiff had (or could have) alleged personal injury or physical

property damage, this provision could not apply, because despite making a frivolous (and

sanctionable) allegation that Dr. Wright was engaged in solicitation or service activities within

Florida at the time of the alleged torts that purportedly were committed in Australia (Compl. ¶

14), plaintiff never revisited this conclusory (and false) statement, much less supported it with

any facts. Dr. Wright has only ever been in Florida once in his life, for reasons unrelated to Dave

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Kleiman, W&K, the plaintiff, or any of the matters alleged in the complaint. Wright Aff. ¶ 1. He

has never been engaged in any solicitation or service activities in Florida. Id. ¶¶ 4-16. The Court

lacks personal jurisdiction under section 48.193(1)(a)(6)(a).

4. Even if Plaintiff Had (or Could Have) Adequately Alleged Personal Jurisdiction
Under Fla. Stat. § 48.193(1)(a)(1), (2), or (6)(a), Dr. Wright Does Not Have
Minimum Contacts with Florida

Even if the complaint had (or could have) adequately alleged long-arm jurisdiction under

Fla. Stat. § 48.193(1)(a)(1), (2), or (6)(a), Dr. Wright would not be subject to personal

jurisdiction in this case because his paltry contacts with Florida do not come close to satisfying

the constitutional minimum contacts requirement.

Dr. Wright has visited Florida once, for a conference in 2009 that dealt with cyber

security. Wright Aff. ¶ 1. That visit was unrelated to Dave Kleiman, W&K, the plaintiff, or any

of the matters alleged in the complaint. Id. The only other contacts alleged in the complaint were

a handful of emails, many of which were responses to emails from the plaintiff demanding

money or bitcoins after Dave Kleiman died. Courts do not take lightly a plaintiff’s attempt to

manufacture long-arm jurisdiction in such fashion. See Polynesian Isles Resort Condo. Ass'n IV,

Inc. v. Diamond Resorts Mgmt., Inc., 2009 WL 10670577, at *2 (M.D. Fla. Dec. 22, 2009). In

any event, one unrelated, brief trip to Florida nine years ago and the emails cited in the complaint

would not satisfy the due process requirement of minimum contacts, even if the complaint had

(or could have) adequately alleged long-arm jurisdiction under Fla. Stat. § 48.193(1)(a)(1), (2),

or (6)(a), which it utterly failed to (and could not) do.

F. The Complaint Fails to State Claims Upon Which Relief Could be Granted

To survive a Rule 12(b)(6) motion to dismiss, a complaint must provide a “short and

plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)

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sufficient to provide the defendant “fair notice of what the claim is and the grounds upon which

it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quote omitted). A

complaint must offer more than “labels and conclusions or a formulaic recitation of the elements

of a cause of action . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Such “[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements” will not

survive a motion to dismiss. Id. The complaint fails to meet this standard.

1. The Complaint’s Contradictory Allegations Demonstrate the Impossibility of


Granting Any Relief on the Basis of Plaintiff’s Contrived Story

The United States Supreme Court has made clear that a district court must scrutinize a

complaint early—at the pleading stage—and dismiss it unless the plaintiff sets forth sufficient

factual allegations to establish not just a claim, but a plausible claim. Twombly, 550 U.S. at 544;

see Iqbal, 556 U.S. at 662. Plausibility means more likely than not, and is context specific.

Twombly, 550 U.S. at 555-56. A mere possibility of wrongdoing is not enough. The plaintiff

must plead facts, not “labels,” “conclusions,” or “formulaic recitation of the elements” to

persuade this Court that a plausible claim exists. Iqbal, 556 U.S. at 678. The Court is “not

required to ‘accept factual claims that are internally inconsistent.’” McMahon v. City of Riviera

Beach, 2008 WL 4108051, at *3 (S.D. Fla. Aug. 28, 2008) (quoting Campos v. Immigration &

Naturalization Serv., 32 F.Supp.2d 1337, 1343 (S.D. Fla. 1998)).

Indeed, the Court’s first order of business is to scrub a complaint of any legal conclusions

or even conclusions masquerading as “facts” because neither are entitled to any weight. See

Iqbal, 556 U.S. at 678-79. After cleansing the complaint of conclusions, the Court must “draw on

its judicial experience and common sense” and determine whether the plaintiff has pleaded a

plausible claim and whether other, alternative explanations of innocence are more likely than

plaintiff’s allegations of wrongdoing. Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009)

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(“[T]he court’s assessment of the pleadings is context-specific, requiring the reviewing court to

draw on its judicial experience and common sense.”). This analysis depends on the full factual

picture, not facts in isolation, and a complaint should be dismissed when the complaint cannot

support a plausible claim or the alternative explanations make the claim unlikely. See Twombly,

550 U.S. at 570 (concluding that the plaintiffs did not nudge their claims across the line from

conceivable to plausible where defendants offered obvious alternative explanations); see also

Iqbal, 556 U.S. at 680 (finding alleged wrongdoing more compatible with, and more likely

explained by, lawful conduct).

Plaintiff did not have to admit that he has no personal knowledge of his allegations

because his lack of knowledge is made obvious by the complaint’s “threadbare recitals” of

conclusory allegations and its contradictions. The Court should not accept the following

“internally inconsistent” allegations, which are fatal to the complaint:

• Plaintiff’s attempt to establish personal jurisdiction over Dr. Wright, and plead legally
sufficient claims for breach for fiduciary duty (Count IV) and breach of partnership
agreement (Count V) are premised on plaintiff’s allegation that Wright was
Kleiman’s business partner in W&K. Compl. ¶¶ 14, 139, 141. That allegation is
contradicted directly and irrefutably by exhibits 2 and 5 of the complaint, which are
official corporate records demonstrating that Kleiman was the only member of W&K
until he died and that Wright has never had any authority, ownership, or control over
W&K. See id. ¶ 56, Exs. 2 and 5;

• In an unnumbered heading of the complaint at page 28, plaintiff claims that Dr.
Wright contacted him to “cover up the fraud.” But, to the contrary, plaintiff quotes
and cites emails showing that it was Dr. Wright who initiated contact with Kleiman’s
family and volunteered details of Kleiman’s secret cyber legacy, tried to show
plaintiff how to access any bitcoins that Kleiman might have stored on his hard
drives, told him about Kleiman’s shares in Coin-Exch, and even offered Kleiman $12
million for those shares;

• In count I for conversion, plaintiff alleges in conclusory fashion that Dr. Wright is
exercising exclusive possession over the private keys necessary to access and spend

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the bitcoins plaintiff claims would have been Kleiman’s through his ownership of
W&K. In support of his claims, however, plaintiff cites to emails in which Dr. Wright
explains that he and Kleiman never shared their private keys and that it was likely
that those private keys were located on Kleiman’s hard drives, which plaintiff admits
he could not access. Thus, it appears plaintiff is or was in possession of the bitcoins
and intellectual property he claims to own, but since he can’t access the hard drives,
he asks the Court to assume instead that Dr. Wright has them based on the most
conclusory of allegations.

2. The Independent-Tort Doctrine Bars Each of Plaintiff’s Tort Claims Because


Those Claims Are Not Independent of Plaintiff’s Breach of Partnership Claim

The independent-tort doctrine prohibits a party from bringing a tort claim that is

predicated on the same facts as a breach of contract claim. Certain Underwriters at Lloyd’s of

London, UK Subscribing to Policy No. B1230AP56189A14 v. Ocean Walk Resort Condo. Ass’n,

Inc., 2017 WL 3034069, at *10 (M.D. Fla. 2017). To allege a valid tort claim, a party must

“demonstrate that all of the required elements for a cause of action are satisfied, including that

the tort is independent of any breach of contract claim.” Tiara Condo. Ass’n, Inc. v. Marsh &

McLennan Companies, Inc., 110 So. 3d 399, 408 (Fla. 2013) (Pariente, J., concurring) (citing

Lewis v. Guthartz, 428 So.2d 222, 224 (Fla. 1982) (emphasis added)); Ginsberg v. Lennar Fla.

Holdings, Inc., 645 So. 2d 490, 495 (Fla. 3d DCA 1994). Where the facts surrounding a breach

of contract action are “indistinguishable from the alleged tort . . . a plaintiff is barred from

bringing a separate tort action.” Fla. Coll. of Osteopathic Med., Inc. v. Dean Witter Reynolds

Inc., 982 F. Supp. 862, 866 (M.D. Fla. 1997). This rule is at least sixty years old. Griffith v.

Shamrock Village, 94 So. 2d 854, 858 (Fla. 1957).

The complaint arises from Dr. Wright’s alleged breach of a purported, unwritten,

partnership agreement between the parties. Plaintiff alleges that Kleiman and Dr. Wright entered

into a “partnership through their bitcoin mining activities,” and that Dr. Wright breached the

partnership agreement when he “transferred all bitcoin related assets to himself personally.”

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Compl. ¶¶ 141-42. Plaintiff’s allegations in support of his breach of contract claim are

indistinguishable from his remaining claims, all of which are in tort. They are indistinguishable

because the tortious act he claims in support of his conversion, misappropriation, replevin,

breach of fiduciary duty, and unjust enrichment claims—namely, that Dr. Wright wrongfully

transferred and used the bitcoins and intellectual property—is the same act that he claims is a

breach of the partnership agreement. See Compl. ¶¶ 75, 120, 124, 135, 139, 147. Thus, Counts I,

II, III, IV and VI must be dismissed because they fail to allege any facts “separate and distinct

from the breach of contract.” Dantzler Lumber & Exp. Co. v. Bullington Lumber Co., 968 F.

Supp. 1543, 1547 (M.D. Fla. 1997) (citing HTP, Ltd. v. Lineas Aereas Costarricenses, 685 So.

2d 1238, 1239 (Fla.1996)).

3. The Complaint Fails to Adequately Allege a Claim for Conversion of Bitcoins


That Were Owned by the Alleged Partnership Because It Did Not (and Could
Not) Specifically Identify Any Bitcoins That Were Owned by Kleiman

In addition to being barred by the independent-tort doctrine, the conversion claim is

legally insufficient because it did not (and could not) specifically identify any bitcoins that

allegedly were owned by plaintiff (or Dave Kleiman). Conversion is “an unauthorized act which

deprives another of his property permanently or for an indefinite time.” Mattocks v. Black Entm’t

Television LLC, 43 F. Supp. 3d 1311, 1321 (S.D. Fla. 2014) (citing Fogade v. ENB Revocable

Trust, 263 F.3d 1274, 1291 (11th Cir. 2001)). A plaintiff must allege facts sufficient to show

“ownership of the subject property and facts that the other party wrongfully asserted dominion

over that property.” Id.

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When money is the subject of a purported conversion claim,6 the plaintiff must allege

“(1) specific and identifiable money; (2) possession or an immediate right to possess that money;

(3) an unauthorized act which deprives plaintiff of that money; and (4) a demand for return of the

money and a refusal to do so.” United States v. Bailey, 288 F. Supp. 2d 1261, 1264 (M.D. Fla.

2003), aff’d, 419 F.3d 1208 (11th Cir. 2005). Moreover, conversion of money cannot be alleged

“unless the money is a specifically identifiable fund such as an escrow account, a bag of gold

coins, or the like.” In re Mouttet, 493 B.R. 640, 662 (Bankr. S.D. Fla. 2013). Additionally, no

allegation of the conversion of fungible money can stand. Id. Money is identifiable where “it is

delivered at one time, by one act and in one mass, or where the deposit is special and the

identical money is to be kept for the party making the deposit, or where wrongful possession of

such property is obtained.” Batlle v. Wachovia Bank, N.A., 2011 WL 1085579, at *2 (S.D. Fla.

2011).

The complaint does not allege any facts to demonstrate that plaintiff was in fact the

owner of any of the bitcoins referenced in the complaint. Moreover, the complaint contradicts

itself in numerous ways. First, it fails to allege exactly how many bitcoins plaintiff (or Dave

Kleiman) supposedly owned at any time in the past. Compl. ¶¶ 62, 66. Second, the complaint

alleges that W&K was solely owned by Kleiman, but then alleges that Kleiman owned only 50%

of W&K. Compl. ¶¶ 56-57. If the allegation that Kleiman is entitled to 50% of some unidentified

amount of bitcoins owned by W&K were accepted as true, then the unidentified bitcoins mined

by W&K belonged to both Kleiman and Dr. Wright. This allegation, which is repeated

throughout the complaint (see Compl. ¶¶ 66, 68, 75, 121), fails to demonstrate how plaintiff ever

6
As alleged in the complaint, bitcoin is a form of cryptocurrency (Compl. ¶ 3) and, therefore, a
form of money. E.g., United States v. Faiella, 39 F. Supp. 3d 544, 545 (S.D.N.Y. 2014).

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claimed “ownership of the subject property.” Mattocks, 43 F. Supp. 3d at 1321. For this reason

alone, the conversion claim requires dismissal.

The conversion claim also should be dismissed because the complaint is devoid of any

allegation that the unidentified bitcoins are specific and identifiable, Bailey, 288 F. Supp. 2d at

1264, or that Kleiman ever delivered or transferred any specific sum of bitcoins to Dr. Wright.

On the contrary, the complaint alleges that Kleiman and Dr. Wright owned and controlled more

than 1,100,000 bitcoins that they purportedly mined and held in trusts outside of the United

States. Compl. ¶¶ 62, 66. Thus, plaintiff can only guess which or how many bitcoins ever

belonged to plaintiff (or Dave Kleiman) because merely mining bitcoins does not establish a

legal right to possess them.

Furthermore, it is a legal impossibility to specifically identify bitcoins that are comingled.

Fla. Desk, Inc. v. Mitchell Int’l, Inc., 817 So. 2d 1059, 1061 (Fla. 5th DCA 2002) (holding that

unsegregated money placed in a general operating account was not specific and identifiable). The

mere allegation that the purported “overseas trusts” contained “at least 300,000” bitcoins held in

trust for Kleiman fails to meet this standard. Compl. ¶ 121. The case law is clear: “The fact that

the amount is certain does not make an ‘identifiable fund.’” Fla. Desk, Inc., 817 So. 2d at 1061;

Walinbay S.A. v. Fresh Results, LLC, 2014 WL 1259901, at *3 (S.D. Fla. 2014); Guevara v.

Republica Del Peru, 2008 WL 11333432, at *3 (S.D. Fla. 2008). Because the complaint fails to

allege that any of the purported bitcoins were specifically identifiable, or that Kleiman had

exclusive ownership of any identifiable bitcoins, the Court should dismiss Count I of the

complaint.

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4. Plaintiff Fails to State a Claim for Replevin Because Replevin Does Not Apply
to Intangible Property, and the Court Lacks In Rem Jurisdiction Over the
Purportedly Improperly Seized Bitcoins

In addition to being barred by the independent-tort doctrine, the replevin claim is legally

insufficient because, like the conversion claim, it did not (and could not) specifically identify any

bitcoins that allegedly were owned by plaintiff (or Dave Kleiman). This claim also must be

dismissed because there is no claim for replevin of intangible property, and because the bitcoins

at issue, if they exist at all, are located “overseas,” not in Florida.

Replevin is a remedy for the “wrongful taking or wrongful detention of any specific

personal property.” Williams Mgmt. Enterprises, Inc. v. Buonauro, 489 So. 2d 160, 161 n.1 (Fla.

5th DCA 1986) (citing Fla. Stat. § 78.01) (emphasis added). Under Florida law, a replevin claim

must allege, inter alia, a “description of the claimed property that is sufficient to make possible

its identification and a statement . . . of the value of such property and its location.” Fla. Stat. §

78.055.

Replevin is a possessory action and requires a court to have in rem jurisdiction over the

property sought to be replevied, i.e., the property must be located within Florida. Prestige Rent-

A-Car, Inc. v. Advantage Car Rental & Sales, Inc. (ACRS), 656 So. 2d 541, 544 (Fla. 5th DCA

1995). Moreover, there is no claim under Florida law for replevin of intangible property, which

bitcoins plainly are. Charter Sch. Capital, Inc. v. N.E.W. Generation Preparatory High Sch. of

Performing Arts, Inc., 2015 WL 2239061, at *3 (S.D. Fla. 2015).

Thus, the complaint’s replevin claim fails for the same reasons as its conversion claim.

Plaintiff demands that the Court order the return of unidentified digital currency located in

overseas accounts. A replevin action simply will not lie. First, as demonstrated above, bitcoins

are intangible property. Second, they are not specifically identifiable. Bitcoins in a trust account

44
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“are not the type of specific, tangible property capable of particular identification and manual

seizure toward which the writ of replevin is aimed.” Charter Sch., 2015 WL 2239061, at *3.

Third, the complaint alleges that the bitcoins in question are located in trust accounts overseas,

Compl. ¶ 66, thus depriving the Court of in rem jurisdiction. Prestige, 656 So. 2d at 544. The

Court should dismiss Count III with prejudice.

5. Plaintiff Failed to State a Legally Sufficient Claim for Misappropriation


Because His Claim is Time-Barred and Because the Complaint Fails to
Reasonably Identify a Trade Secret with the Requisite Particularity

In addition to being barred by the independent-tort doctrine, the misappropriation claim

(Count II) is legally insufficient because, like the conversion and replevin claims, it did not (and

could not) specifically identify the property that purportedly was misappropriated. This claim

also must be dismissed as time-barred by the three-year limitations period of Fla. Stat. § 688.007.

The statute of limitations begins to run once “the misappropriation is discovered or by the

exercise of reasonable diligence should have been discovered.” Fla. Stat. § 688.007. Plaintiff

filed the complaint on February 14, 2018. Thus, his claim is time-barred if, in the exercise of

reasonable diligence, plaintiff should have discovered the alleged misappropriation before

February 14, 2015. The emails attached to the complaint demonstrate that ten months earlier, in

April 2014, plaintiff already believed that Dr. Wright had misappropriated W&K’s assets,

including its intellectual property. See Compl. Ex. 18, at 2-10, 16-20 (documents that purport to

be April 2013 email exchanges between plaintiff and Wright in which plaintiff calls Wright’s

honesty into question and claims to have evidence of alleged misappropriation); see, e.g., Compl.

Ex. 18, at 20 (Plaintiff’s email dated April 23, 2014 stating that he had believed there were

“questionable discrepancies” in documents provided to plaintiff by ATO, including discrepancies

relating to Department of Homeland Security project in which “trade secrets” purportedly were

45
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used.); Compl. Ex. 18, at 6 (Wright’s email dated April 23, 2014, responding to plaintiff’s email

from the same day, stating, “I don’t know what you have been led to believe. But I am not trying

to take anything from Dave’s estate.”). Thus, plaintiff not only should have known, but had

reason to know, if not actual knowledge, of the alleged basis for this claim.

A plaintiff seeking recovery for misappropriation under Fla. Stat. § 688.004 must list and

describe the trade secrets at issue with “reasonable particularity.” See Levenger Co. v. Feldman,

516 F. Supp. 2d 1272, 1287 (S.D. Fla. 2007); Del Monte Fresh Produce Co. v. Dole Food Co.

Inc., 148 F. Supp. 2d 1322, 1325 (S.D. Fla. 2001). The complaint makes no attempt at reasonable

particularity, and merely alleges that the supposed trade secrets are “generally described as

programs, methods, techniques, and processes relating to blockchain based technologies.”

Compl. ¶ 127 (emphasis added). That “description” is insufficient as a matter of law because it

fails to specifically describe anything. By now, thousands of “technologies” are “blockchain

based.” Moreover, Dr. Wright cannot reasonably be expected to defend a claim for

misappropriation of trade secrets that are no more than “generally described” as those

purportedly owned by W&K or Kleiman, because he cannot possibly know what trade secrets

plaintiff thinks W&K or Kleiman might have owned, let alone what trade secrets plaintiff thinks

Wright might have misappropriated.

Plaintiff also fails even to allege that any particular “blockchain-based technology” was

a trade secret, as defined by Fla. Stat. § 688.002(4). A trade secret is “information” that, among

other things, is “the subject of efforts that are reasonable under the circumstances to maintain its

secrecy.” Id. Plaintiff claims that some unidentified “blockchain-related technology” that was (or

was part of) the intellectual property owned by W&K, which he claims was an oral partnership

between Kleiman and Dr. Wright. Although plaintiff claims that Kleiman “made reasonable

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efforts to maintain the secrecy” of the unidentified blockchain-based technologies, Kleiman’s

actions alone would not have made this purportedly shared intellectual property a “trade secret.”

Rather, Dr. Wright also would have had to make reasonable efforts to maintain the secrecy of the

unidentified blockchain-based technology, which is exactly what plaintiff claims Dr. Wright did

not do.

Because the unidentified blockchain-related technology was not made a trade secret

through Kleiman and Dr. Wright’s conduct, any obligation to treat it as a trade secret could have

arisen only by contract. Plaintiff does not allege the existence of any such contract. The only

possibility is an alleged oral partnership or joint venture agreement, as to which the complaint

and its hundreds of pages of exhibits offer no evidence. Even if they did, such allegations also

would be barred on their face by the independent-tort doctrine and the statute of frauds.

6. Plaintiff Failed to Allege a Legally Sufficient Claim for Breach of a


Partnership Agreement and Breach of Fiduciary Duty Because Even if Plaintiff
Had Sufficiently Alleged the Existence of a Partnership Agreement, Its
Enforcement Would Be Barred by the Statute of Frauds

“Under well-settled Florida law, the statute of frauds bars the enforcement of [an oral]

contract when the parties intended and contemplated that performance of the agreement would

take longer than one year.” Dwight v. Tobin, 947 F.2d 455, 459 (11th Cir. 1991). The Court may

“infer[] from the ‘surrounding circumstances’ or the ‘object to be accomplished’” whether the

parties intended that an oral contact’s performance would take more than one year.

No inference is required here. The complaint alleges that Kleiman and Dr. Wright “had a

valid partnership through their bitcoin mining activities,” which the complaint alleges lasted four

years. Compl. ¶¶ 4, 141. Plaintiff does not allege that the parties ever executed a written

agreement to enter into this partnership. Accordingly, plaintiff’s claims for breach of this

47
Case 9:18-cv-80176-BB Document 12 Entered on FLSD Docket 04/16/2018 Page 48 of 50

purported oral partnership agreement (Count V) and for breach of fiduciary duties (Count IV),

both are barred by the statute of frauds. Fla. Sta. § 725.01.

Even if these claims were not barred by the statute of frauds, the complaint failed to

allege a legally sufficient claim for breach of a partnership agreement because it failed to allege

the elements needed to establish the existence of a partnership agreement, including a joint right

of control, a right to share in the profits of the alleged partnership, and a duty to share in its

losses. E.g., Stonepeak Partners, LP v. Tall Tower Capital, LLC, 231 So. 3d 548, 553

(quoting Jackson–Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076, 1089 (Fla. 2008)).

Moreover, the absence of a written partnership agreement precludes a finding that Kleiman and

Dr. Wright were engaged a joint venture that could give rise to any fiduciary duties. Thus, the

complaint also fails also to state a legally sufficient claim for breach of fiduciary duty, which

also is barred by the independent-tort doctrine.

7. The Complaint Fails to State a Legally Sufficient Claim for Unjust Enrichment
Because Plaintiff Does Not Own the Alleged Bitcoin or Intellectual Property

In Count VI, the complaint attempts to allege that Dr. Wright was unjustly enriched by

his purportedly “unauthorized use of bitcoins and intellectual property belonging to Dave’s

estate.” Compl. ¶ 146. This allegation cannot avoid the obvious conclusion that whatever

“bitcoins and intellectual property” plaintiff thinks belonged “to Dave’s estate” were the result of

the supposed oral partnership agreement. This necessarily means that the unjust enrichment

claim is based on a purported contract between Kleiman and Dr. Wright. It is settled law in

Florida that no unjust enrichment claim will lie for matters that are based on, or derive from, a

contract. The complaint expressly alleges a purported breach of a purported contract governing

the same “bitcoins and intellectual property,” and the unjust enrichment claims must be

dismissed on this basis alone.

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Moreover, the complaint is devoid of any allegation that plaintiff ever mined a single

bitcoin or created any intellectual property. Instead, the complaint alleges that Dave Kleiman and

Dr. Wright jointly owned bitcoins and intellectual property through W&K. Thus, even if Dr.

Wright had been unjustly enriched by any of the purported assets vaguely described in the

complaint, they would not be assets “belonging to Dave’s estate.” Instead, they would be assets

belonging to W&K. It is beyond dispute that W&K is not a party to this lawsuit and cannot be

represented in it by this plaintiff.

IV. CONCLUSION

Plaintiff has sued where he couldn’t sue and shouldn’t have sued. The complaint does not

(and cannot not) adequately allege plaintiff’s own standing or personal jurisdiction to hale Dr.

Wright into this Court. It improperly demands that this Court decide that the Supreme Court of

New South Wales, Australia, was defrauded, despite the plain fact that all jurisprudential norms

require any such determination to be made by the judges of that sovereign nation, because those

judges were the alleged victims of purported frauds on their courts. Moreover, plaintiff demands

to proceed with litigation in South Florida, despite the fact none of the relevant events occurred

here, and none of the potential witnesses, documents or other evidence are located here. Finally,

even if this Court had been the right place to consider plaintiff’s claims, the complaint fails to

allege legally sufficient claims because of their implausibility and failure to state cognizable

claims as a matter of law. This complaint was filed in the wrong place and the wrong time. It

49
Case 9:18-cv-80176-BB Document 12 Entered on FLSD Docket 04/16/2018 Page 50 of 50

should be dismissed with prejudice.

RIVERO MESTRE LLP


Attorneys for Craig Wright
2525 Ponce de Leon Boulevard,
Suite 1000
Miami, Florida 33134
Telephone: (305) 445-2500
Fax: (305) 445-2505
Email: arivero@riveromestre.com
Email: jmestre@riveromestre.com
Email: arolnick@riveromestre.com
Email: dsox@riveromestre.com
Email: receptionist@riveromestre.com

By: s/ Andres Rivero


ANDRES RIVERO
Florida Bar No. 613819
JORGE A. MESTRE
Florida Bar No. 88145
ALAN H. ROLNICK
Florida Bar No. 715085
DANIEL SOX
Florida Bar No. 108573

CERTIFICATE OF SERVICE

I certify that on April 16, 2018, I electronically filed this document with the Clerk of the
Court using CM/ECF. I also certify that this document is being served today on all counsel of
record by transmission of Notices of Electronic Filing generated by CM/ECF.

s/ Daniel Alvarez Sox


Daniel Alvarez Sox

50
Case 9:18-cv-80176-BB Document 12-1 Entered on FLSD Docket 04/16/2018 Page 1 of 90

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA

Gase No.9:18 -CV- 80176-88

IRA KLEIMAN. as the personal representative


of the Estate of Dave Kleiman
Plaintiff

VS

CRAIG WRIGHT
Defendant

AFFIDAVIT

On 17 April 2018, I Gordon Thomas Grieve of Level 23, Governor Macquarie Tower,
1 Farrer Place, Sydney, New South Wales, Australia, make oath and declare under penalty
and perjury under the laws of the United States of America that the following is true and
correct:

1 I am a Partner of Piper Alderman. Piper Alderman is a commercial law firm with


offices in Sydney, Melbourne, Brisbane and Adelaide. We have over 60 partners and
over 300 staff in total.

2 ln swearing this affidavit, I draw on my expertise, having been a litigation Partner of


Piper Alderman for 26 years. Prior to joining the Piper Alderman partnership, I was
the Commissioner for Corporate Affairs in South Australia. As Commissioner for
Corporate Affairs and in private practice, I have conducted and supervised complex
litigation matters in Australia, in the Supreme Courts of New South Wales, South
Australia, Victoria, Queensland and West Australia, various Registries of the Federal
Court of Australia and the High Court of Australia and in the United Kingdom and
Europe.

3 I have a high level of experience in both the private and public sectors across all
facets of major commercial litigation.

4 I am familiar with litigation matters both from the perspective of a plaintiff and a
defendant. At present I am the solicitor on the record in two large matters being
conducted in the Supreme Court of New South Wales and a further long running

(
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matter in the process of being transferred from the Supreme Court of Victoria. The
latter matter has been the subject of hard fought interlocutory applications including
issues concerning choice of forum and interpretation of an exclusive jurisdiction
clause in a New York contract.

5 I have been engaged by Rivero Mestre to assist this Honourable Court in respect to
issues arising in the proceedings at hand.

6 I have been briefed with a copy of the Complaint made by lra Kleiman as the
personal representitive of the Estate of Dave Kleiman. I have a copy of the exhibits 1

to 20 accompanying the Complaint.

The Australian Taxation Office

7 The Australian Taxation Office (ATO) is the principal taxation revenue collection
agency of the Australian government.

I The ATO's role is to effectively manage and shape the tax and superannuation
systems that support and fund services for Australians, including:

a collecting taxation revenue with respect to individuals, business and


not-for-profit entities;

b administering the goods and services tax (GST) on behalf of the Australian
states and territories;

c. governing a range of programs which result in transfers and benefits back to


the community;

d. administering the major aspects of Australia's superannuation system; and

ô custodian of the Australian Business Register

Obtaining Documents from the ATO

9 Division 355 of the Taxation Administration Act 1953 (Tax Act) deals with the
confidentiality of taxpayers' information.

/'¿
l,-'
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10 Tax payers in Australia are afforded confidentiality over their tax affairs and it is an
offence, punishable by a fine and/or jail, for a tax officer to give out information about
someone's tax affairs.

11. Annexed and marked "4" is a copy of Division 355 of the Tax Act

12 Section 355-25(2) of the Tax Act provides that protected information can be disclosed
inter alia to:

i. tax agents;

ii. legalpractitionersand/orrepresentatives;

ilt. the tax payer and the entity requesting the information if they are
members of the same consolidated group; and/or

IV if the entity acquiring the information is a nominated entity by the tax


payer.

13 The tax law confidentiality provisions in Division 355 of Schedule 1 to the Tax Act
apply to "protected information". Protected information is defined to mean information
disclosed or obtained under or for the purposes of a taxation law, which relates to the
affairs of an entity (including but not limited to the entity's tax affairs), and which
identifies, or is reasonably capable of being used to identify, that entity.

14. Protected information may be contained in written documents, conversations,


electronic recordings, transcripts or any other form in which information can be
recorded. lt includes information obtained directly from a taxpayer or information
generated by the ATO.

15. Section 355-50 of the Tax Act provides that the ATO can disclose information inter
alia in circumstances where a taxation officer records or discloses the information in
the performance of their duties. Annexed and marked "8" is a copy of the ATO
procedures for disclosing protected information.

16 The scope of duties includes various duties that are included in the exemption. For
example disclosing information to any entity, court or tribunal for the purpose of
administering any taxation law or where it is released to or for:

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a. the Minister;

b. law enforcement purposes;

c. other government purposes; and/or

d. the purposes of preventing or lessening serious threat to the health and safety
of an individual or to public health and safety.

17 Disclosure can also be made to a competent authority referred to in an international


agreement for the purposes of exchanging information under such an international
agreement

18 Protected lnformation is also available to the public if it has been disclosed in an


open court or published in a public forum, even if a member of the public has to pay a
fee to access it.

19 Provided the protected information was not made available to the public through a
breach of Division 355 of the Tax Act, it can be relied upon.

20 lra Kleiman is not a representative of the ATO. He does not, from the Complaint and
the exhibits to the Complaint, on its face, appear to have any rights to any of the
disclosure of protected information exemptions under the Tax Act.

21. Section 355-155 of the Tax Act makes it an offence if an entity makes a record of
information or discloses information to another entity or to a court or tribunal and the
information was acquired by the first mentioned entity under an exception to the
relevant subdivision and the first mentioned entity did not acquire the information as a
taxation officer. ln the absence of any information other than that provided to me in
the Complaint and its exhibits, it seems on its face that lra Kleiman does not have
authority under Australian law to disclose exhibits 6 and 7.

22 Exhibits 6 and 7 of the Complaint, on their face, contain protected information


concerning Mr Wright and in at least exhibit 6, a number of entities connected to Mr
Wright. Nothing in the Complaint or the exhibits suggest to me that disclosure of
exhibit 6 and 7 in the Complaint falls within any exception to the prohibition against
disclosure of protected tax payer information.

rt ¿
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Establìshing the validity and effect of Australian Judgments

23. There is no treaty between the US and Australia regarding the enforcement of US
judgments in Australia. US judgments accordingly must be enforced at common law

24. A number of matters will need to be proved in an Australian court in order for a US
judgment to be enforced.

25. The judgment must be a finaljudgment and not subject to appeal. The parties in the
US judgment need to be the same as the parties against whom enforcement is
sought in Australia.

26. The judgment needs to be for a fixed debt or an amount that is readily calculable

27. lmportantly the US court must have exercised jurisdiction over the defendant or
defendants in a manner recognised. by Australian courts.

28. ln order to prove that the US court exercised appropriate jurisdiction it will be needed
to show either that the defendant voluntarily submitted to the US court's jurisdiction or
that the defendant was ordinarily resident or present in the US when he or she was
served with the US process.

29 Assuming one or the other above can be proved a defendant has some limited
defences available. The defendant can challenge the judgment if it can show that it
was obtained by fraud, the US court acted contrary to naturaljustice or the US
judgment is contrary to Australian public policy.

Exhibits 15 and 16

30 Exhibit 15 is on its face a Consent Order of the Supreme Court of NSW Matter
Number 20131245661 recording a judgment in favour of Mr Wright. Exhibit 16 on its
face is a Judgment Order of the Supreme Court of NSW in Matter
Number 2013100225963 also recording a judgment in favour of Mr Wright.

31. Whilst the parties are the same in each case, the amounts the subject of the
judgments are in Exhibit 15 $28,534,049.79 and in Exhibit 17 $28,254,66.00.

33662329v1
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32 I have sought to examine the court files in these matters, however at the time of

swearing this affidavit have not been granted the Court's consent to examine the
files.

33. Both exhibit 15 and 16 record consent judgments in favour of Mr Wright against W&K
lnfo Defence Research LLC.

34. The Supreme Court of NSW may give judgment, or order that judgment be entered,
in the terms of an agreement between parties in relation to proceedings between
them.

35. There are court guidelines which must be met where parties wish to settle
proceedings by way of consent. This includes that any consent orders agreed must
contain the original signatures of the parties authorised to sign on behalf of the
parties. Annexed and marked "C" is a copy of the lnstructions for filling out a consent
judgmenVorder.

36. Ordinarily a court will make any consent orders requested by competent and
interested parties to the proceedings if the orders are within the court's jurisdiction
and otherwise appropriate.

37 A judgment entered by way of consent orders in the Supreme Court is considered a


final adjudication of a matter on its merits.

38. The Supreme Court is the superior court of record in the State of New South Wales
(NSW), and as such, has an inherent jurisdiction in addition to its specific statutory
jurisdiction. The Court has supervisory jurisdiction over other NSW courts and
tribunals, and generally exercises this jurisdiction through its appellate courts.

39 The Uniform Civil Procedure Rules 2005 (NSW) (UCPR) are a set of rules which
apply to the Supreme Court and other lower courts of New South Wales in relation to
the conduct of civil proceedings in that jurisdiction.

40 lf a party wishes to set aside a consent order they will need to demonstrate certain
irregularities in relation to the entering of the consent order or fraud.

41. Under r 36.15 of the UCPR the Court has the general power to set aside a judgment
or order of the court in any proceedings on sufficient cause being shown, that the

€^€-¿tou..
Case 9:18-cv-80176-BB Document 12-1 Entered on FLSD Docket 04/16/2018 Page 7 of 90

judgment was given or entered, or the order was made, irregularly, illegally or against
good faith. Annexed and marked "D" is copy of r 36.15 of the UCPR.

42. Where a party wishes to set aside a judgment on that basis, they would need to
make an application setting out the basis the judgment or order was made,
irregularly, illegally or against good faith and file evidence in support of that
application.

43 Where a party wishes to have a judgment set aside as being obtained by fraud the
party will need to commence separate proceedings and will need to show the
successful party was implicated in the fraud, the information would probably have
affected the judgment and the information was in contest in the original proceedings.

44. However, I note where evidence in either an application in respect of an irregularity or


fraud includes a finding of a court outside of Australia about the irregularity or fraud,
that evidence will not necessarily be accepted by an Australian Court. The court will
likely itself test the evidence before.relying on it to set aside a judgment or order
made in the localjurisdiction.

45 Causes of action in courts in New South Wales are subject to limitation time periods.
They can be subject to the New South Wales and Commonwealth Statute Law
concerning limitations and in relation to equitable causes of action the equitable
principal of Laches.

46 ln this case the action to set aside the judgment would be an action in fraud. I refer
to the allegation in paragraph 101 of the Claim, Section 47 of the Limitation Act 1969
(NSW) (Limitation Act) provides a limitation of 12 years in respect of a fraud or a
fraudulent breach of trust, against a person who is, while a trustee, a party or privy to
the fraud of the breach of trust or against the person's successor. Annexed and
marked "E" is a copy of s 47 of the Limitation Act.

47 Section 55 of the Limitation Act provides that limitation periods in respect of fraud and
deceit do not commence until the person having the cause of action first discovers or
may with reasonable diligence discover the fraud, deceit or concealment, Annexed
and marked "F" is a copy of s 55 of the Limitation Act.

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't-' a
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48 An action to set aside a consent order on the basis of fraud would be subject to a
limitation period of 12 years from the time that the fraud was known or should have
been known. ïhe two relevant judgments are in late 2013. lt is not clear when lra
became aware of them but in any event an action to set aside on the basis of fraud is
not out of time.

Service in the UK of Originating Proceedings

49 Where a court process is required to be served outside Australia the document need
not be served personally so long as the document is otherwise served in accordance
with the laws of service applicable in the foreign jurisdiction in which service is to take
place.

50 It is not mandatory for service to be effected in accordance with the law of the country
in which service is to take place. The validity of service is at all times to be judged in
accordance with the relevant Act and Rules of the Australian court. However where
the method of service is not effective under the local law, this may affect the
recognition of the Australian judgment in that jurisdiction.

51 Both Australia and the United Kingdom are parties to the Convention of 15 November
1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters. Accordingly, service is effected under this Convention.

52 Generally, an Australian party commencing proceedings has to apply to the Supreme


Court Registrar for service under the Hague Service Convention. ln relation to
service of proceedings commenced in the Supreme Court of NSW a party may apply
to the Registrar of the Court under r 11A of the UCPR for service of proceedings
outside of Australia. Annexed and rnarked "G" is a copy of r 1 1A of the UCPR.

53 This request is subject to certain mandatory form requirements, ln particular the


litigant must include the following:

a. model letter of request;

b, Summary of Documents to be Served;

c. Certificate of Service for the foreign court to complete;

d. documents to be served;

(
$þtr^=.rry-"*/
Case 9:18-cv-80176-BB Document 12-1 Entered on FLSD Docket 04/16/2018 Page 9 of 90

ô certified translations where necessary, and

f. an undertaking as to costs.

54 lf satisfied that the application and its accompanying documents comply with rule
11A.4, the Registrar will sign the request for service abroad and the documents are
to be fon¡rarded to the Central Authority for the UK in which service of the document
is to be affected.

55. The Central Authority will then make arrangements for service either:

a by a method prescribed by its internal law for the service of documents in


domestic actions upon persons who are within its territory, or

b by a particular method requested by the applicant, unless such a method is


incompatible with UK law.

56. The Central Authority will then remit a Certificate of Service back to the Australian
Registrar advising that service has or has not been effected.

Remedres sought under the Complaint- Availability in Australia

57. Mr Kleiman has 6 separate claims for relief against Mr Wright.

58. Taking the claims in Mr Kleiman's order:

a Conversion (against Mr Wright) - The tort of conversion can be prosecuted in


Australia and the remedies sought by Mr Kleiman in the claim are also
available in Australia;

b Misappropriation - A claim can be made in Australia similarly to Mr Kleiman's


claim of misappropriation of trade secrets with similar remedies to the US;

c. Replevin - ln Australia the common law remedy of replevin allows a plaintiff


with a right of immediate possession to goods who has been deprived of
those goods, to recover them in summary proceedings or whilst the action is
on foot to determine the owner. lt is not clear that the Claim here is the same
however the remedies pleaded in the claim in replevin are available in

:ÀPñ g (&R/Rls
33662329v1
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10

Australia and can be pleaded against Mr Wright and the relief sought is
available in Australian courts;

d Breach of Fiduciary Duty - This claim can be pleaded and actioned in


Australia and similar remedies sought;

e Breach of Partnership Agreement - This claim can be pleaded and actioned in


Australia and similar remedies sought; and

f Unjust enrichment - Unjust enrichment in Australia is not itself a source of


direct liability. However if a plaintiff can prove its entitlement to restitution of
the value of a benefit derived at the plaintiff's expense and if the court is
satisfied that the plaintiff has succeeded on any issues falling within three
broad enquiries:

i. that the defendant must be enriched;

ii. the enrichment must come at the expense of the plaintiff; and

iii. the enrichment is unjust,

then the plaintiff can recover as claimed by the plaintiff under Count Vl of the
Complaint.l

Dated 17 April2018
SWORN at
Signature of deponent
Name of witness
Sydney

€ t
Natalie Louise Miller
Address of witness Level 23, Governor Macquarie Tower, 1 Farrer Place, Sydney
NSW 2OOO
Capacity of witness Justice of the Peace

And as a witness, I certify the following matters concerning the person who made this affidavit (the deponent):
1 I saw the face ofthe deponent.
2 I have known the deponent for at least 12 months. Natalie Loulse Miller
Signature of witness Justice of the Peace
\ee ucpn 3s.78.
No 202244
Note: The deponent and witness must sign each page of the affidavit.

1 Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd (No. 3)[2014]WASC 162 a|lsll
Case 9:18-cv-80176-BB Document 12-1 Entered on FLSD Docket 04/16/2018 Page 11 of 90

11

Gertificate of Service

I hereby certify that a true and correct copy of the foregoing was served by

[specify method of service] on


ldatel

on all counsel or parties of record on the Service List below

Signature of Filer

SERVICE LIST

Party or Attorney Name Party or Attorney Name

Attorney E-mail Address (if applicable) Attorney E-mail Address (if applicable)

Firm Name (if applicable) Firm Name (if applicable)

Street Address Street Address

City, State, Zip Code City, State, Zip Code

Telephone: Telephone

Facsimile: Facsimile:

Attorneys for Plai ntiff/Defendant Attorneys for Plai ntiff/Defendant


[Party's Name(s)] (if applicable) [Party's Name(s)] (if applicable)

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T2

AI{I{EXT]RE
A
Case 9:18-cv-80176-BB Document 12-1 Entered on FLSD Docket 04/16/2018 Page 13 of 90
Page I of46
Print Legislation I LawOne
13

O T¡meBase 201 I

Taxation Administration Act 1953 / Schedule '1-Collection and recoverv of income tax and
other liabilities / Chapter S-Administration / Part 5-1-The Australian Taxation Office /
Division 35S-Confidentiality of taxpayer information

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BEFORE ME: f.
355-A objects and application of Division " ' 'M\*;"""""o
Natalle-Lou¡se Milter
Justice of the peace
355-8 Disclosure of protected information by taxation officeçg 202244

355-C On-disclosure of protected information by other people

355-D Disclosure of protected information that has been unlawfully acquired

355-E Other matters

Guide to Division 355

355-1 What this Division is about


i

The disclosure of information about the tax affairs of a particular entity is prohibited, except
in certain specified circumstances
liìì
i'
Those exceptions are desÍgned having regard to the principle that disclosure of information
should be permitted only if the public benefit derived from the disclosure outweighs the
entity's privacy.

Note: This Division contains the main circumstances in which protected tax information
can be disclosed. A number of other Commonwealth laws also allow for the disclosure of,
or access to, such information in limited circumstanêes. Some of these other laws are as
follows:

sections 32 and 33 of the Auditor-General Act 1997;

section 9 of the Ombudsman Act 1976;

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section 44 of the Privacy Act 1988

Subdivision 355-A-Objects and application of Division

Table of sections

355-10 Objects of Division

355-15 Applícation of Division

355-10 Objects of Division

The objects of this Division are

(a) to protect the confidentiality of taxpayers' affairs by imposing strict


obligations on *taxation officers (and others who acquire protected tax
information), and so encourage taxpayers to provide correct information
to the Commissioner; and

(b) to facilitate efficient and effective government administration and law


enforcement by allowing disclosures of protected tax information for
specific, appropriate pu rposes.

355-15 Application of Division

This Division applies in relation to the following entities in the same way as it
applies in relation to *taxation officers:

(a) an entity engaged to provide services relating to the Australian Taxation


Office;

(b) an individual employed by, or otherwise performing services for, an


entity referred to in paragraph (a);

(c) an individual

(i) appointed or employed by, or performing services for, the


Commonwealth or an authority of the Commonwealth; and

(ii) performing functions or exercising powers under or for the

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purposes of a *taxation law

Subdivision 355-B-Disclosure of protected information by taxation


officers

Guide to Subdivision 355-8

355-20 What this Subdivision is about


j

i-.
The main protection for taxpayer confidentiality is in this Subdivision. lt is an offence for
taxation officers to disclose tax information that identifies an entity, or is reasonably capable
of being used to identify an entity, except in certain specified circumstances.
I

Table of sections

Operative provisions

355-25 Offence-disclosure of protected information by taxation officers

355-30 Meaning of protected information and taxation officer

355-35 Consent is not a defence

355-40 Generality of Subdivision not limited

355-45 Exception-disclosure of publicly available information

355-47 Exception-disclosure of periodic aggregate tax information

355-50 Exception-disclosure in performing duties

355-55 Exception-disclosure to Ministers

355-60 Limits on disclosure to Ministers

355-65 Exception-disclosure for other government purposes

355-70 Exception-disclosure for law enforcement and related purposes

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355-75 Limits on disclosure to courts and tribunals

Operative provisions

355-25 Offence-disclosure of protected information by taxation officers

(1) An entity commits an offence if:

(a) the entity is or was a *taxation officer; and

(b) the entity:

(i) makes a record of information; or

(ii) discloses information to another entity (other than the entity to


whom the information relates or an entity covered by
subsection (2)) or to a court or tribunal; and

(c) the information is *protected information; and

(d) the information was acquired by the first-mentioned entity as a taxation


officer.

Penalty: lmprisonment for 2 years.

(2) An entity (the covered entity) is covered by this subsection in relation to


*protected information that relates to another entity (lhe primary entity) if.;

(a) the covered entity is the primary entity's "registered tax agent or BAS
agent; or

(b) the covered entity is a nlegal practitioner representing the primary entity
*taxation
in relation to the primary entity's affairs relating to one or more
laws; or

(ba) the covered entity is a public officer (within the meaning of section 252
or 252A of the Income lax Assessment Act 1936) of the primary entity;
or

(c) the primary entity is an.*incapacitated entity and the covered entity is a
*representative of the incapacitated entity; or

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(d) the covered entity is the primary entity's *legal personal representative;
or

(e) the covered entity is the primary entity's guardian where the primary
entity is a minor or suffers from mental incapacity; or

(0 the covered entity and the primary entity are members of the same
*consolidated group or *MEC group; or

(g) the covered entity is a representative of the primary entity who has been
nominated by the primary entity in the *approved form to act on that
entity's behalf with respect to protected information.

355-30 Meaning ol protected information and taxation officer

(1) Protected information means information that:

(a) was disclosed or obtained under or for the purposes of a law that was a
*taxation law (other than the Tax Agent Services Act 2009) when the
information was disclosed or obtained; and

(b) relates to the affairs of an entity; and

(c) identifies, or is reasonably capable of being used to identify, the entity.

Note: Tax file numbers do not constitute protected information because they are not, by
themselves, reasonably capable of being used to identify an entity. For offences relating to
tax file numbers, see Subdivision BA of Division 2 of Part lll.

(2) Taxation officer means

(a) the Commissioner or a *Second Commissioner; or

(b) an individual appointed or engaged under the Public Seruice Act 1999
and performing duties in the Australian Taxation Office.

Note: This Division applies to certain other entities as if they were taxation officers: see
section 355-15.

355-35 Consent is not a defence

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It is not a defence to a prosecution for an offence against section 355-25 that the
entity to whom the information relates has consented to:

(a) the making of the record; or

(b) the disclosure of the information

355-40 Generality of Subdivision not limited

Except as provided by section 355-60, nothing in this Subdivision limits the


generality of anything else in it.

Note: This means that each provision in this Subdivision (other than section 355-60) has
an independent operation and is not to be interpreted by reference to any other provision
within the Subdivision.

355-45 Exception-disclosure of publicly available information

Section 355-25 does not apply if the information was already available to the
public (otherwise than as a result of a contravention of section 355-25, 355-155
or 355-265).

Note: A defendant bears an evidential burden in relation to the matters in this section: see
subsection 13.3(3) of the Criminal Code.

355-47 Exception-disclosure of periodic aggregate tax information

(1) Section 355-25 does not apply if the information is *periodic aggregate tax
information.

Note: A defendant bears an evidential burden in relation to the matters in this subsection
see subsection 13.3(3) of the Criminal Code.

(2) Periodic aggregate tax information is information that:

(a) specifies the total amorjnt collected or assessed by the Commissioner


during a period, or predicted by the Commissioner to be collected or
assessed by the Commissioner during a period, in respect of:

(i) tax imposed under a particular Act or particular Acts; or

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(i i) if an Act imposes duties of excise-a type of duty of excise


imposed under that Act; or

( ¡ii) if an Act imposes duties of customs-a type of duty of customs


imposed under that Act; and

(b) does not identify, nor is reasonably capable of being used to identify, an
individual.

355-50 Exception-disclosure in performing duties

(1) Section 355-25 does not apply if:

(a) the entity is a *taxation officer; and

(b) the record or disclosure is made in performing the entity's duties as a


taxation officer.

Note 1: A defendant bears an evidential burden in relation to the matters in this


subsection: see subsection 13.3(3) of the Criminal Code.

Note 2: An example of a duty mentioned in paragraph (b) is the duty to make available
information under sections 3C and 38.

(2) Without limiting subsection (1), records or disclosures made in performing duties
as a *taxation officer include those mentioned in the following table:

.Records or disclosures in performing duties

Item The record is made for or the and the record or disclosure ...
disclosure is to ...

1 any entity, coutt or tribunal is for the purpose of administering any


*taxation law.

2 any entity, court or tribunal is for the purpose of the making, or


proposed or possible making, of an order
under the Proceeds of Crime Act 2002
that is related to a "taxation law.

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3 any ent¡ty, court or tribunal is for the purpose of criminal, civil or


administrative proceed ings (i nclud ing
merits review or judicial review) that are
related to a *taxation law.

4 any entity is for the purpose of responding to a


request for a statement of reasons under
the Adm inistrative Deci sions (J udici al
Review) Act 1977 in relation to a decision
made under a *taxation law.

5 any entity is for the purpose of:

(a) determining whether to make an ex


gratia payment; or
(b) administering such a payment;

in connection with administering a


*taxation law.

6 any entity is for the purpose of enabling the entity to


understand or comply with its obligations
under a *taxation law.

7 the Secretary of the Department (a) is of information that does not include
the name, contact details or *ABN of any
entity; and
(b) is for the purpose of:
(i) the design of a *taxation law; or
(ii) the amendment of a taxation law.

I any board or member of a board is for the purpose of performing that


performing a function or function or exercising that power.
exercisíng a power under a
*taxation law

I a competent authority referred to is for the purpose of exchanging


in an international agreement information under such an international
(within the meaning of section 23 agreement.
of the International Tax
Agreements Act 1953)

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10 any employer (within the meaning is for the purpose of disclosing to that
of the Superannuation Guarantee employer information included in a notice
(Admin istration) Act 1 992) given to the Commissioner under
subsection 32F(1) or 32H(14) of that Act
by an employee (within the meaning of
that Act) of that employer.

355-55 Exception-disclosure to Ministers

(1) Section 355-25 does not apply if

(a) the entity is a *taxation officer; and

(b) an item in the table in this subsection covers the making of the record or
the disclosure; and

(c) *Second Commissioner or an


if the entity is not the Commissioner, a
SES employee or acting SES employee of the Australian Taxation
Office-one of the following has agreed that the record or disclosure is
covered by the item:

(i) the Commissioner;

(ii) a Second Commissioner;

( iii) an SES employee or acting SES employee of the Australian


Taxation Office who is not a direct supervisor of the taxation
officer.

Records or disclosures to Ministers

Item The record is made for or the and the record or disclosure ...
disclosure is to ...

1 any Minister is for the purpose of enabling the


Minister to exercise a power or perform a
function under a *taxation law.

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2 the Minister (a) is about an entity; and


(b) is for the purpose of enabling the
Minister to respond directly to the entity
in relation to a representation made by
the entity to:
(i) the Minister; or
(ii) another member of a House of the
Parliament.

3 the Minister is for the purpose of informing decisions


made under the scheme known as the
Compensation for Detriment Caused by
Defective Administration Scheme.

4 the *Finance Minister is for the purpose of:


(a) the waiver, or possible waiver, of a
*tax debt under section 63 of the Public
Governance, Performance and
Accountability Act 2013; or
(b) the making, or possible making, of a
payment referred to in section 65 of that
Act (about act of grace payments) in
connection with administering a ntaxation
law.

5 any Minister is for the purpose of:


(a) determining whether to make an ex
gratia payment; or
(b) administering such a payment.

6 a Minister responsible for: (a) is of information contained in the


Register of Foreign Ownership of
(a) agriculture; or
Agricultural Land or Register of Foreign
(aa) water; or Ownership of Water Entitlements; and
(b) industry policy; or (b) is for the purpose of enabling that
Minister to discharge that responsibility.
(c) investment promotion; or
(d) taxation policy; or
(e) foreign investment in Australia

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Note 1: A defendant bears an evidential burden in relation to the matters in this


subsection: see subsection 13.3(3) of the Criminal Code.

Note 2: Section 19 of the Acts lnterpretation Act 1901 provides thatthe expression "the
Minister", as used in table items 2 and 3, refers to the Minister or Ministers administering
the relevant provision.

(2) The "taxation officer is entitled to rely on the exception in subsection (1)even if
the agreement referred to in paragraph (1)(c) has not been obtained in relation to
the record or disclosure.

355-60 Limits on disclosure to Ministers

(1) Sections 355-45 and 355-55 are the only exceptions to the prohibition in
section 355-25 on which an entity who has acquired *protected information as a
*taxation officer can rely in making a record of the information for, or disclosing
the information to, a Minister, whether or not provided to a Minister in the course
of, or for the purposes of or incidental to, the transacting of the business of a
House of the Parliament or of a committee of one or both Houses of the
Parliament.

Note: Disclosures that are not prohibited by section 355-25 are not affected by this
subsection. For example, a taxation officer may disclose information to a Minister if the
Minister is the entity to whom the information relateb, or is an entity covered by
subsection 355-25(2) in relation to the information.

(2) Subsection (1) has effect despite section 16 of the Parliamentary Prívileges Act
1987, and that section does not operate to the extent that it would otherwise
apply to a disclosure of *protected information by a *taxation officer to a Minister

Note: This subsection does not limit the operation of section 16 of the Parliamentary
Privileges Act 1987 in any other respect. That section continues to operate, for example,
to enable taxation officers to disclose protected information to a committee of one or both
Houses of the Parliament.

355-65 Exception-disclosure for other government purposes

(1) Section 355-25 does not apply if:

(a) the entity is a *taxation officer; and

(b) an item in a table in this section covers the making of the record or the
disclosure.

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Note: A defendant bears an evidential burden in relation to the matters in this subsection
see subsection 13.3(3) of the Criminal Code.

Table 1-Records or disclosures relating to social welfare, health or safety

(2) Table 1 is as follows

Table 1: Records or d¡sclosures relat¡ng to social welfare, health or safety

Item The record is made for or the and the record or disclosure ...
disclosure is to ...

1 an Agency Head (within the is for the purpose of administering that


meaning of the Public Seruice Act law.
1999) of an agency (within the
meaning of that Act) dealing with
matters relating to the social
security law (within the meaning of
subsection 23(17) of the Social
Security Act 1991)

2 the *Health Secretary is for the purpose of administering any


law of the Australian Capital Territory or
of the Nodhern Territory which is
administered by the *Health Minister.

3 the Repatriation Commission is for the purpose of administering any


"Commonwealth law relating to
pensions.

4 the *Student Assistance Secrêtary is for the purpose of administering any


or the *Employment Secretary
*Commonwealth law relating to
pensions, allowances or benefits.

5 (a) the *Student Assistance is for the purpose of administering any


Secretary; or *Commonwealth law relating to financial
assistance to students.
(b) the Secretary of the
Department administered by the
Minister administering the Higher
Education Supporf Act 2003

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5AA the Secretary of the Department is for the purpose of administering that
administered by the Minister Act.
administering the Trade Support
Loans Act 201 4

5A the "Families Secretary or the is for the purpose of administering the


Chief Executive Centrelink (within Paid Parental Leave Act 2010.
the meaning of the Human
Servrces (Centrelink) Act 199n

o the *Families Secretary or the. is for the purpose of administering the A


Chief Executive Centrelink (within New Tax Sysfem (Family Assrsfance)
the meaning of the Human (Administration) Act 1 999.
Services (Centrelink) Act 199n

7 the Child Support Registrar is for the purpose of administering the


Ch¡ld Support (Registration and
Collection) Act 1988 or the Child Support
(Assessment) Act 1989.

8 the Chief Executive Medicare is for the purpose of administering


(within the meaning of the Human Part2-2 (about premiums reduction
Servrces (Medicare) Act 1973) scheme) or 6-4 (about administration of
that scheme) of the Private Health
lnsurance Act 2007.

I an *Australian government agency is necessary for the purpose of


preventing or lessening:
(a) a serious threat to an individual's life,
health or safety; or
(b) a serious threat to public health or
public safety.

10 an *Australian government agency is for the purpose of preventing,


detecting, disrupting or investigating
conduct that relates to a matter of
security as defined by section 4 of the
Australian Security I ntelligence
Organisation Act 1979

Table 2-Records or disclosures relating to superannuation or finance

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(3) Table 2 is as follows

Table 2: Records or disclosures relating to superannuation or finance

Item The record is made for or the and the record or disclosure ...
disclosure is to ...

1 a financial sector supervisory (a) is of information that was obtained


agency (within the meaning of under or in relation to the
section 3 of the Australian Superannuation (U nclaimed Money and
Prudential Reg ulation Authority Lost Members) Act 1999; and
Act 1998)
(b) is for the purpose of the agency
performing any of its functions or
exercising any of its powers.

2 (a) an agency having the function, (a) is of information that was obtained
in Australia or in a foreign country, under or in relation to the
of supervising or regulating Superann uation (Self Man aged
*financial institutions; or Su perann uation Funds) Taxation Act
1987 orthe Superannuation Industry
(b) any other agency (including a
(Supervision) Act 1993; and
foreign agency) specified in the
regulations (b) is for the purpose of performing any
of its functions or exercising any of its
powers; and
(c) is made in accordance with the
conditions (if any) imposed by the
regulations in relation to the disclosure of
information under this item.

3 (a) the Superannuation (a) is of information that was obtained


Complaints Tribunal established under or in relation to the
by section 6 of the Superannuation (Unclaimed Maney and
Su perannuation (Resol ution of Lost Members) Act 1999; and
Complaints) Act 1993; or
(b) is for the purpose of the Tribunal, or
(b) the operator of the AFCA the operator, performing any of its
scheme (within the meaning of functions or exercising any of its powers
Chapter 7 of the Corporations Act
2001)

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4 the Australian Prudential is for the purpose of administering:


Regulation Authority (APRA)
(a) the Financial Institutions Supervisory
Levies Collection Act 1998; or
(b) the Superannuation Industry
(Superuision) Act 1993.

5 APRA (a) is of information that was obtaíned


under or in relation to the
Superannuation (Unclaimed Money and
Lost Members) Act 1999; and
(b) is for the purpose of APRA
performing any of its functions or
exercising any of its powers.

6 APRA is for the purpose of administering a


reporting standard made under
section 13 of the Financial Sector
(Collection of Data) Act 2001, to the
extent that the standard relates to
amounts reported to *APRA for the
purposes of the Major Bank Levy Act
2017.

6A -ASIC is for the purpose of administering


Part 16 of the Superannuation lndustry
(Superuision) Act 1993.

7 an individual who is or was an (a) is of information that relates to the


employee (within the meaning of Commissioner's response to a complaint
the Supera nnuation Guarantee by the individual about a failure by the
(Administration) Act 1 992) individual's employer or former employer
to comply with the employer's obligations
under the Supera nnu ation G uarantee
(Administratíon) Act 1992 in relation to
the employee; and
(b) does not relate to the general
financial affairs of the employer.

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B any entity, court or tribunal is of information that was obtained


under, or for the purposes of the
S u pe ran n u ation (Self M an aged
Superannuation Funds) Taxation Act
1987 orthe Superannuation lndustry
(Superuision) Act 1993 and is for the
purpose of all or any of the following:
(a) identifying a particular nself managed
superannuation fund;
(b) enabling members of the public to
contact persons who perform functions in
relation to a particular self managed
superannuation fund;

(c) enabling the Commissioner to provide


an opinion to members of the public as
to whether or not a particular self
managed superannuation fund is a
complying superannuation fund in
relation to a particular income year for
the purposes of Division 2 of Part 5 of
the Supera nn uation I ndustry
(Supervision) Act 1 993;
(d) describing activity engaged in, or
proposed to be engaged in, by the
Commissioner in relation to a breach or
suspected breach by a person of a
provisíon of the Superannuation (Se/f
M an aged S u peran n uation F u nds)
Taxatíon Act 1987 or the Superannuation
lndustry (Superuision) Act 1993.

I an approved clearing house is for the purposes of that body


(within the meaning of the performing its functions in relation to
S u peran n u atio n G u arantee superan nuation contributions.
(Adminístration) Act 1 992)

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10 (a) a *regulated superannuation is for the purpose of:


fund; or
(a) informing:
(b) a public sector superannuation
(i) a beneficiary (within the meaning of
scheme (within the meaning of the
the Supera nn uation I ndustry
S u pe ran n u ation I nd u stry
(Supervision) Act 1993) of such a fund or
(Supervision) Act 1993); or
scheme; or
(c) an *approved deposit fund; or
(ii) a holder (within the meaning of the
(d) an *RSA provider; or Retirement Savings Accounts Act 1997)
of an .RSA provided by the *RSA
(e) an entity that, as an agent of
provider; or
such a fund, scheme or RSA
provider, provides adminístration (iii) an applicant to become such a
services for: beneficiary or holder;
(i) beneficiaries (within the of one or more of his or her
meaning of that Act) of the fund or *superannuation interests (whether with
scheme; or that fund, scheme or RSA provider or
another fund, scheme or RSA provider);
(ii) holders (within the meaning of
or
the Refftement Savings Accounts
Act 1997) of *RSAs provided by (b) assisting such a beneficiary, holder or
the RSA provider applicant to choose whether to maintain
or create such a superannuation interest;
or
(c) assisting such a beneficiary, holder or
applicant to give effect to such a choice;
or

(d) informing such a beneficiary, holder


or applicant of an amount that is or may
become payable, or that may be paid,
credited or otherwise dealt with, in
relation to the beneficiary, holder or
applicant under:
(i) the Small Superannuation Accounts
Act 1995; or

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(ii) the Superannuation (Government


Co-contribution for Low lncome Earners)
Act 2003; ar
(iii) the Superannuation Guarantee
(Administration) Act 1992; or
(iv) the Superannuation (Unclaimed
Money and Lost Members) Act 1999; or
(e) assisting such a beneficiary, holder or
applicant to give effect to a choice that
he or she may make, or undertake an
action that he or she may undertake, in
relation to an amount mentioned in
paragraph (d).

11 a *superannuation prov¡der or is for the purpose of complying with


APRA subsection 292-102(9) of the Income Tax
Assessment Act 1997.

Table 3-Records or disclosures relating to corporate regulation, business,


research or policy

(4) Table 3 is as follows

Table 3: Records or disclosures relating to corporate regulation, business,


research or policy

Item The record is made for or the and the record or disclosure ...
disclosure is to ...

1 the Australian Securities and is for the purpose of performing any


I nvestments Comm ission functions or exercising any powers under
any Act or instrument, or part of any Act
or instrument, of which the Commission
has the general administration.

6 lnnovation and Science Australia is for the purpose of administering any


*Commonwealth law relating to venture
established under section 6 of the
lndustry Research and capital.
Development Act 1986

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6A the Secretary of the Department is for the purpose of administering that


administered by the Minister Act.
administering the Shipping Reform
(Tax lncentives) Act 2012

7 the Secretary of the Department is for the purpose of administering the


Foreign Acquisitions and Takeovers Act
1975.

8 the Secretary of the Department (a) is of information that does not include
the name, contact details or *ABN of any
entity; and
(b) is for the purpose of the Department
estimating or analysing taxation revenue
or estimating the cost of policy
proposals.

9 the Parliamentary Budget Officer (a) is of information that does not include
(within the meaning of the the name, contact details or *ABN of any
Parliamentary Service Act 1999) entity; and
(b) is for the purpose of the
Parliamentary Budget Officer performing
any of his or her functions, or exercising
any of his or her powers, under Part 7 of
the Parliamentary Seruice Act 1999.

Table 4-Records or disclosures relating to other taxation matters

(5) Table 4 is as follows

Table 4: Records or disclosures relating to other taxation matters

Item The record is made for or the and the record or disclosure ...
disclosure is to ...

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1 a State taxation officer, or a is for the purpose of administering a


Territory taxation officer, within the *State law or *Territory law relating to
meaning of subsection 13D(1) of taxation, if a State taxation officer or a
this Act Territory taxation officer is authorised by
law to communicate information obtained
under the State law or Territory law to
the Commissioner.

2 a State taxation officer, or a (a) is of rental information, residential


Territory taxation officer, within the address information or spousal
meaning of subsection 13D(1) of information; and
this Act
(b) is for the purpose of administering the
Fírst Home Owner Grant (New Homes)
Act 2000 (NSW, or a similar *State law
or *Territory law.

4 an individual who holds an offíce (a) is of information that relates to


of a State or Territory, being an alcoholic beverages; and
office prescribed for the purpose
(b) is for the purpose of the individual
of this table item
administering an *arrangement for the
rebate, refund or other payment or credit
by a State or Territory in respect of
alcoholic beverages.

5 the lnspector-General of Taxation is for the purpose of investigating or


reporting under, or otherwise
administering:
(a) the lnspector-General of Taxation Act
2003; or
(b) provisions of the Ombudsman Act
1976, to the extent that they are applied
by the lnspector-General of Taxation Act
2003.

Table 5-Records or disclosures relating to rehabilitation or compensation

(6) Table 5 is as follows

Table 5: Records or disclosures relating to rehabilitation or compensation

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Item The record is made for or the and the record or disclosure ...
disclosure is to ...

1 an authoríty of the Commonwealth is for the purpose of performing any of its


established under a functions or exercising any of its powers
*Commonwealth law relating to under that law.
rehabilitation or compensation

2 the *Defence Secretary is for the purpose of administering any


*Commonwealth law relating to
payments in respect of dependants of
members of the Defence Force.

3 an authority of a State or Territory (a) is of information that relates to


that administers a *workers' amounts withheld under Part 2-5 in
compensation law Schedule 1 to this Act (about PAYG
withholding); and
(b) is for the purpose of ensuring that
employers comply with their obligations
relating to insurance or the imposition of
a levy under that law.

Table 6-Records or drsc/osures relating to the environment

(7) Table 6 is as follows

Table 6: Records or disclosures relating to the environment

Item The record is made for or the and the record or disclosure...
disclosure is to...

2 the *Environment Secretary is for the purpose of administering


product stewardship (oil) benefits.

Table 7-Records or disclosures relating to miscellaneous matters

(8) Table 7 is as follows:

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Table 7: Records or d¡sclosures relating to miscellaneous matters

Item The record is made for or the and the record or disclosure ...
disclosure is to ...

1 the Australian Statistician is for the purpose of administering the


Census and Statistics Act 1905.

2 the Comptroller-General of is for the purpose of administering any


Customs (within the meaning of Act to the extent to which the
the Cusfoms Act 1901) Comptroller-General of Customs has the
general administration of the Act or any
instrument under such an Act.

2A the Electoral Commissioner (a) is of information disclosed to, or


(within the meaning of the obtained by, the Commissioner of
Commonwealth Electoral Act Taxation on or after the commencement
1e1 8) of this table item; and
(b) is for the purpose of administering the
Commonwealth Electoral Act 1918 or the
Referendum (Machinery Provisions) Act
1984.

3 the *lmmigration Secretary or the is for the purpose of performing any


Australian Border Force functions or exercising any powers under
Commissioner (within the meaning any Act or instrument, or part of any Act
of the Australian Border Force Act or instrument, administered by the
201 5) Minister administering the *lmmigration
Department.

5 the Fair Work Ombudsman (within is for the purpose of ensuring an entity's
the meaning of the Fair Work Act compliance with the Fair Work Act 2009
200e)

5A the Commissioner of the is for the purpose of administering the


Australian Charities and Au stral i an Ch arities and N ot-for-p rofits
Not-for-profits Commission Commission Act 2012.

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b (a) the Commissioner of the (a) is of information that relates to


Australian Charities and non-compliance of a *ancillary fund or
Not-for-profits Commission; or charity with an *Australian law; and
(b) the Attorney-General of a State (b) is for the purpose of the
or Territory administration of an Australian law
governing trusts and charities.

6A the Secretary of the Department is for the purpose of administering the


administered by the Minister Petroleum and Other Fuels Reporting
administering the Petroleum and Act 2017.
Other Fuels Reporting Act 2017

7 the Secretary of a Department (a) is of information contained in the


administered by a Minister Register of Foreign Ownership of
responsible for: Agricultural Land or Register of Foreign
Ownership of Water Entitlements; and
(a) agriculture; or
(b) is for the purpose of enabling that
(aa) water; or
Department to assist that Minister to
(b) industry policy; or discharge that responsibility.
(c) investment promotion; or
(d) taxation policy; or
(e) foreign investment in Australia

I a *foreign government agency of a (a) is of information relating to the


foreign country or part of a foreign address, contact information or income
country, or an entity acting on of a person who has an obligation to
behalf of such an agency repay a student loan issued by or on
behalf of:
(i) that agency; or

(ii) another "foreign government agency


of that country, or that part of that
country; and
(b) is for the purposes of contacting the
person, and recovering from the person
outstanding amounts relating to the loan

(e) To avoid doubt, the exception in table item 7 in table 2 in subsection (3) has
effect even if at the time the complaint referred to in that item is made it is in
dispute or unceftain whether the individual is an employee or former employee of
the employer.

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355-70 Exception-disclosure for law enforcement and related purposes

(1) Section 355-25 does not apply if

(a) the entity is the Commissioner or a ntaxation officer authorised by the


Commissioner to make the record or disclosure; and

(b) an item in the table in this subsection covers the making of the record or
the disclosure; and

(e) if the entity is not the Commissioner, a


*Second eommissioner or an
SES employee or acting SES employee of the Australian Taxation
Office-one of the following has agreed that the record or disclosure is
covered by the item:

(i) the Commissioner;

(ii) a Second Commissioner;

( i¡i) an SES employee or acting SES employee of the Australian


Taxation Office who is not a direct supervisor of the taxation
officer.

Note 1: A defendant bears an evidential burden in relation to the matters in this


subsection: see subsection 13.3(3) of the CriminalCode.

Note 2: The Commissioner is required to include in an annual report information about


disclosures made under this subsection: see sectioil 38.

Records or disclosures for law enforcement and related purposes

Item The record is made for or the and the record or disclosure ...
disclosure is to ...

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1 an *authorised law enforcement is for the purpose of:


agency officer, or a court or
(a) investigating a "serious offence; or
tribunal
(b) enforcing a law, the contravention of
which is a serious offence; or
(c) the making, or proposed or possible
making, of a *proceeds of crime order; or
(d) supporting or enforcing a proceeds of
crime order.

2 an *authorised ASIO officer is for the purpose of performing ASIO's


functions under subsection 17(1) of the
Australian Security I ntelligence
Organisation Act 1979.

3 a nProject Wickenby officer, or a (a) is for or in connection with a *purpose


court or tribunal of the Project Wickenby taskforce; and
(b) is made before 1 July 2015, or a later
prescribed day.

4 a *taskforce officer of a prescribed (a) is for or in connection with a purpose


taskforce, or a court or tribunal of the prescribed taskforce; and
(b) is made within the time limit, if any,
prescribed by the regulations.

5 a Royal Commission in respect of is for the purpose of the Royal


which Letters Patent issued by the Commission conducting its inquiry
Governor-General declare that the
Royal Commission is a Royal
Commission to which this table
item applies, or a member of such
a Royal Commission

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6 one or more of the following is for the purpose of:


bodies:
(a) investigating a *serious offence; or
(a) a Royal Commission of a State
(b) enforcing a law, the contravention of
or a Territory prescribed by the
which is a serious offence; or
regulations for the purposes of this
table item; (c) the making, or proposed or possible
making, of a *proceeds of crime order; or
(b) a commission of inquiry of a
State or a Territory prescribed by (d) supporting or enforcing a proceeds of
the regulations for the purposes of crime order.
this table item;
(c) a board of inquiry of a State or
a Territory prescribed by the
regulations for the purposes of this
table item

(2A) The ntaxation officer is entitled to rely on the exception in subsection (1) even if
the agreement referred to in paragraph (1)(c) has not been obtained in relation to
the record or disclosure.

Meaning of various terms

(2) A,uthorised ASIO officer means

(a) the Director-General of Security holding office under lhe Australian


Security lntelligence Organisation Act 1979; or

(b) an ASIO employee (within the meaning of that Act) or an ASIO affiliate
(within the meaning of that Act) who has been authorised in writing by
the Director-General of Security to perform the functions of an
authorised ASIO officer under this Act.

(3) Authorised law enforcement agency officer means

(a) the head of a *law enforcement agency; or

(b) an officer of a law enforcement agency, or a person engaged by, or


otherwise performing services for, a law enforcement agency,
authorised in writing by the head of the agency to perform the functions
of an authorised law enforcement agency officer under this Act.

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Law enforcement agency means

(a) the Australian Federal Police; or

(b) the police force of a State or Territory; or

(c) the Office of the Director of Public Prosecutions established by section 5


of the Director of Pubtic Prosecutions Act 1983; or

(d) the Australian Commission for Law Enforcement lntegrity; or

(e) the Australian Crime Commission; or

(0 the lndependent Commission Against Corruption established by the


lndependent Commission Against Corruption Act 1988 of New South
Wales; or

(g) the New South Wales Crime Commission; or

(h) the Law Enforcement Conduct Commission of New South Wales; or

(i) the lndependent Broad-based Anti-corruption Commission of Victoria; or

û) the Crime and Corruption Commission of Queensland; or

(k) the Corruption and Crime Commission of Western Australia; or

(ka) the lndependent Commissioner Against Corruption of South Australia;


or

(t) *ASrc

(5) Proceeds of crime order means

(a) an order, relating to an entity's commission of a *serious offence, under

(i) Chapter 2 (about confiscation of property in relation to certain


offences) or Division 1 of Part 3-1 (about examination orders)
of the Proceeds of Crime Act 2002; or

(4)

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Part ll (about confiscation) or lll (about control of property liable


to confiscation) of the Proceeds of Crime Act 1987; or

(i¡i) a "State law or *Territory law corresponding to a law referred to


in subparagraph (i) or (ii); or

(iv) Division 3 of Part Xlll (about recovery of pecuniary penalties for


dealings in narcotic goods) of the Customs Act 1901; or

(b) an unexplained wealth order (within the meaning of the Proceeds of


Crime Act 2002); or

(c) a court order (including a declaration or direction)

(i) under a State law or Territory law; and

(ii) relating to unexplained wealth

(6) An entity is a Project Wickenby officer if the entity:

(a) holds an office in, is employed in, or is performing services for:

(i) a *Project Wickenby taskforce agency; or

(ii) a *Project Wickenby taskforce supporting agency; and

(b) performs duties that relate to a *purpose of the Project Wickenby


taskforce.

(7) The following agencies are Proiect Wickenby taskforce agencies:

(a) the Australian Taxation Office;

(b) the Australian Crime Commission;

(c) the Australian Federal Police;

(d) *ASlc;

(e) the offic8rtt tfr" Director of Public Prosecutions;

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(0 a prescribed agency

(8) The following agencies are Project Wickenby taskforce supporting agencies

(a) the Department administered by the Minister administering the Crimes


Act 1914;

(b) the Australian Transaction Reports and Analysis Centre;

(c) the Australian Government Solicitor;

(d) a prescribed agency

(9) The purposes of the Project Wickenby taskforce are to

(a) detect; and

(b) deter; and

(c) investigate; and

(d) enforce the law relating to;

the promotion of or participation in *arrangements of an international character, or


purported international character, that relate to one or more of the following:

(e) tax avoidance or evasion;

(f) breaches of laws regulating financial markets and corporations;

(g) criminal activity in the nature of fraud or obtaining benefits by deception


(including deceiving investors or creditors);

(h) money laundering;

(i) concealing income or assets

(10) Serious offence means an offence against an *Australian law that is punishable
by imprisonment for a period exceeding 12 months.

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(1 1) An entity is a faskfo rce officer of a prescribed taskforce if:

(a) the entity holds an office in, is employed in, or is performing services for,
an agency in the prescribed taskforce; and

(b) the entity's duties relate to a purpose of the prescribed taskforce

(12) The regulations may prescribe a taskforce for the purposes of item 4 of the table
in subsection (1). A major purpose of the taskforce must be protecting the public
finances of Australia.

(13) Without limiting subsection (12), regulations made for the purposes of item 4 of
the table in subsection (1) may deal with the following matters:

(a) the purposes of the taskforce;

(b) the agencies in the taskforce

355-75 Limits on disclosure to courts and tribunals

An entity who is or was a *taxation officer is not to be required to disclose to a


court or tribunal *protected information that was acquired by the entity as a
taxation officer except where it is necessary to do so for the purpose of carrying
into effect the provisions of:

(a) a *taxation law; or

(b) lhe Foreígn Acquisitions and Takeovers Act 1975, if the entity acquired
the information because of a request under subsection 138(4) of that
Act.

Note: See also section 9ZK of this Act (about protection of witnesses)

Subdivision 355-C-On-disclosure of protected information by other


people

Guide to Subdivision 355-C

355-150 What this Subdivision is about

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Someone who is not a taxation officer is prohibited from disclosing protected information,
except in certain specified circumstances.
a

T able of sections

Operative provisions

355-'155 Offence-on-disclosure of protected information by other people

355-160 Consent is not a defence

355-165 Generality of Subdivision not limited

355- 1 70 Exception-on-d isclosu re of publicly avai lable information

35 5-'1 7 2 Exception-d isclos u re of peri od ic ag g reg ate tax nform


i atio n

355-1 75 Exception-on-disclosure for original purpose

355-180 Exception-on-disclosure to Ministers in relation to statutory powers or


functions

355- 1 82 Exception-on-d isclosure of certain i nformation to Commonwealth


Ombudsman

355-185 Exception-on-disclosure in relation to lGlS

355-190 Exception-on-disclosure in relation to ASIO

355-1 95 Exception-on-disclosure by Royal Commissions

355-200 Exception-records made in compliance with Australian laws

355-205 Limits on on-disclosure to courts or tribunals

355-210 Limits on on-disclosure to Ministers

Operative provisions

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355-155 Offence-on-disclosure of protected information by other people

An entity commits an offence if

(a) the entity:

(i) makes a record of information; or

( ¡i) discloses information to another entity (other than the entity to


whom the information relates or that entity's agent in relation to
the information) or to a court or tribunal; and

(b) the information was acquired by the first-mentioned entity under an


exception in this Subdivision or in Subdivision 355-8 (except
subsection 355-65(1) operating in relation to item 7 in the table in
subsection 355-65(4)); and

*taxation
(c) the first-mentioned entity did not acquire the information as a
officer.

Penalty: lmprisonment for 2 years

Note: This section also covers information acquired by an entity (other than as a taxation
officer) before the commencement of this section under certain repealed or amended
provisions: see item 124 of schedule 2 to the Tax Laws Amendment (Confidentiality of
Taxpayer lnformation) Act 2010.

355-160 Consent is not a defence

It is not a defence to a prosecution for an offence against section 355-155 that


the entity to whom the information relates has consented to:

(a) the making of the record; or

(b) the disclosure of the information

355-165 Generality of Subdivision not limited

Except as provided in section 355-210 (about limits on disclosure to Ministers),


nothing in this Subdivision limits the generality of anything else in it.

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Note: This meansthateach provision in this Subdivision (otherthan section 355-210) has
an independent operation and is not to be interpreted by reference to any other provision
within the Subdivision.

355-170 Exception-on-d¡sclosure of publicly available information

Section 355-'155 does not apply if the information was already available to the
public (otherwise than as a result of a contravention of section 355-25, 355-155
or 355-265).

Note: A defendant bears an evidential burden in relation to the matters in this section: see
subsection 13.3(3) of the Criminal Code.

355-172 Exception-disclosure of periodic aggregate tax information

Section 355-155 does not apply if the information is "periodic aggregate tax
information.

Note: A defendant bears an evidential burden in relation to the matters in this section: see
subsection 13.3(3) of the Criminal Code.

355-175 Exception-on-disclosure for original purpose

(1) Section 355-155 does not apply if

(a) the information was originally disclosed under an exception in


Subdivision 355-8 for a'purpose specified in that exception (the original
purpose); and

(b) the information was acquired by the entity under this section or an
exception in Subdivision 355-8; and

(c) the record or disclosure is made by the entity for the original purpose, or
in connection with the original purpose.

Note: A defendant bears an evidential burden in relation to the matters in thís subsection:
see subsection 13.3(3) of the Criminal Code.

Instances of disclosures ín connection with the original purpose

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Without limiting subsection (1), a record or disclosure is made by the entity in


connection with the original purpose if:

(a) the record is made for, or the disclosure is to, any entity, coud or
tribunal; and

(b) the record or disclosure is for the purpose of criminal, civil or


administrative proceedings (including merits review or judicial review)
that are related to the original purpose.

Multiple purposes

(3) Subsection (1) has effect as if a record or disclosure made by the entity for a
purpose specified in column 3 of the following table were made in connection
with the original purpose:

Records or disclosures for purpose connected with the original purpose

Item Original purpose Purpose connected with the original


purpose

1 a *purpose of the Project another purpose of that taskforce


Wickenby taskforce

2 a purpose of a prescribed another purpose of that taskforce


taskforce

3 one of the purposes specified in the other of those purposes.


column 3 of item 1 of the table in
subsection 355-70(1)

4 one of the purposes specified in one of the other purposes specified in


column 3 of item 6 of the table in column 3 of item 6 of that table.
subsection 355-70(1)

355-180 Exception-on-disclosure to Ministers in relation to statutory


powers or functions

(Spction 355-155 does not apply if:

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the information was originally disclosed under an exception in


Subdivision 355-B for a purpose specified in that exception (the original
purpose); and

(b) the record is made for, or the disclosure is to, a Minister who has a
statutory power or function in relation to the original purpose; and

(c) the record or disclosure is for the purpose of enabling the Minister to

(i) decide whether to exercise the power or perform the function;


or

(ii) exercise the power or perform the function

Note: A defendant bears an evidential burden in relation to the matters in this section: see
subsection 13.3(3) of the Criminal Code.

355-182 Exception-on-disclosure of certain information to Commonwealth


Ombudsman

(1) Section 355-155 does not apply if:

(a) the entity is an officer oi an


*Australian government agency; and

(b) the information was acquired by the entity under the exception in
subsection 355-65(1) operating in relation to item 10 in the table in
subsection 355-65(2); and

(c) the record is made for, or the disclosure is to:

(i) the Commonwealth Ombudsman or a Deputy Commonwealth


Ombudsman; or

( ii) a member of staff referred to in subsection 31(1) of the


Ombudsman Act 1976; and

(d) the record or disclosure is for the purpose of the performance of a


function or duty of the Commonwealth Ombudsman, the Deputy
Commonwealth Ombudsman or the member of staff, under the
Ombudsman Act 1976.

(a)

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Note: A defendant bears an evidential burden in relation to the matters in this subsection
see subsection 13.3(3) of the Criminal Code.

(2) Section 355-155 does not apply if:

(a) the entity is:

(i) the Commonwealth Ombudsman or a Deputy Commonwealth


Ombudsman; or

(ii) a member of staff referred to in subsection 31(1) of the


Ombudsman Act 1976; and

(b) the information was acquired by the entity under subsection (1) or this
subsection; and

(c) the record or disclosure is for the purpose of the performance of a


function or duty of the Commonwealth Ombudsman, the Deputy
Commonwealth Ombudsman or the member of staff, under the
Ombudsman Act 1976.

Note: A defendant bears an evidential burden in relation to the matters in this subsection
see subsection 13.3(3) of the Criminal Code.

355-185 Exception-on-d¡sclosure in relation to lGlS

(1) Section 355-155 does not apply if:

(a) the entity is an *authorised ASIO officer; and

(b) the record is made for, or the disclosure is to, the lnspector-General of
lntelligence and Security holding office under the /nspector-General of
Intelligence and Securíty Act 1986 or a member of staff appointed to
assist the lnspector-General under that Act; and

(c) the record or disclosure is for the purpose of performing the


lnspector-General's, or the member of staff's, duties in relation to ASIO
or ASIO employees (within the meaning of the Australian Security
lntelligence Organisation Act 1979) or ASIO affiliates (within the
meaning of that Act).

Note: A defendant bears an evidential burden in relation to the matters in this subsection

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see subsection 13.3(3) of the Criminal Code

(2) Section 355-'155 does not apply if:

(a) the entity is the lnspector-General of lntelligence and Security holding


office under the /nspector-General of lntelligence and Security Act 1986
or a member of staff appointed to assist the lnspector-General under
that Act; and

(b) the information was acquired by the entity under subsection (1) or this
paragraph; and

(c) the record or disclosurê is for the purpose of performing the


lnspector-General's, or the officer's, duties in relation to ASIO or ASIO
employees (within the meaning of the Australian Security lntettigence
Organisation Act 1979) or ASIO affiliates (within the meaning of that
Act).

Note: A defendant bears an evidenti.al burden in relation to the matters in this subsection
see subsection 13.3(3) of the Criminal Code.

355-190 Exception-on-disclosure in relation to ASIO

(1) Section 355-155 does not apply if:

(a) the entity is an *authorised ASIO officer; and

(b) the record is made for, or the disclosure is to, an officer of a *law
enforcement agency; and

(c) the record or disclosure is for the purpose of, or in connection with

(i) investigating a *serious offence; or

(ii) enforcing a law, the contravention of which is a serious offence;


or

( iii) the making, or proposed or possible making, of a *proceeds of


crime order.

Note: A defendant bears an evidential burden in relation to the matters in this subsection

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see subsection 13.3(3) of the Criminal Code

(2) Section 355-155 does not apply if:

(a) the entity is an officer of a *law enforcement agency; and

(b) the information was acquired by the entity under subsection (1) or this
paragraph; and

(c) the record or disclosure is for the purpose of, or in connection with

(i) investigating a *serious offence; or

( i¡) enforcing a law, the contravention of which is a serious offence;


or

(iii) the making, or proposed or possible making, of a *proceeds of


crime order.

Note: A defendant bears an evidential burden in relation to the matters in this subsection:
see subsection 13.3(3) of the Criminal Code.

355-195 Exception-on-d¡sclosure by Royal Commiss¡ons

(1) Section 355-155 does not apply if:

(a) the entity is a member of a Royal Commission to which column 2 of


item 5 of the table in subsection 355-70(1) relates; and

(b) the information was acquired by the entity under item 5 of the table in
subsection 355-70(1 ); and

(c) the record or disclosure is in accordance with section 6P of lhe Royal


Commissions Act 1902.

Note 1: A defendant bears an evidential burden in relation to the matters in this


subsection: see subsection 13.3(3) of the CriminalCode.

Note 2: Section 6P of the Royal Commissions Act 1902 sets out the circumstances in
which a Royal Commission covered by that Act may disclose information it acquires in the
course of its inquiry

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(2) Section 355-155 does not apply to particular information if the information was
disclosed under subsection (1),

Note: A defendant bears an evidential burden in relation to the matters in this subsection
see subsection 13.3(3) of the Criminal Code.

355-200 Exception-records made in compliance with Australian laws

Section 355-155 does not apply if the record is made in compliance with a
requirement of an *Australian law.

Example: The Australian Taxation Office obtains information about an entity from a credit
reporting body by giving a notice under paragraph 353-10(1)(c). The body is not
committing an offence under section 355-155 by making a written note of the disclosure as
required by subsection 20E(5) of the Privacy Act 1988.

Note: A defendant bears an evidential burden in relation to the matters in this section: see
subsection 13,3(3) of the Criminal Code.

355-205 Limits on on-disclosure to courts or tribunals

An entity is not to be required to disclose to a court or tribunal *protected


information that was acquired by the entity under Subdivision 355-8 or this
Subdivision, except where it is necessary to do so for the purpose of carrying into
effect the provisions of:

(a) a *taxation law; or

(b) if the entity has or had duties, functions or powers under the Foreign
Acquisitions and Takeovers Act 197*lhat Act.

Note: See also section 8ZK of this Act (about protection of witnesses)

355-210 Limits on on-d¡sclosure to Ministers

(1) Sections 355-170,355-180 and 355-195 are the only exceptions to the
prohibition in section 355-155 on which an entity who has acquired *protected
information (otherwise than as a *taxation officer) can rely in making a record of
the information for, or disclosing.the information to, a Minister, whether or not

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provided to a Minister in the course of, or for the purposes of or incidental to, the
transacting of the business of a House of the Parliament or of a committee of one
or both Houses of the Parliament.

Note: Disclosures that are not prohibited by section 355-155 are not affected by this
subsection. For example, an entity may disclose information to a Minister if the Minister is
the entity to whom the information relates, or is another entity's agent in relation to the
information.

(2) Subsection (1) has effect despite section 16 of the Parliamentary Privileges Act
1987, and that section does not operate to the extent that it would otherwise
apply to a disclosure of *protected information by the entity to a Minister.

Note: This subsection does not limit the operation of section 16 of the Parliamentary
Privileges Act 1987 in any other respect. That section continues to operate, for example,
to enable an entity to disclose protected information to a committee of one or both Houses
of the Parliament.

Subdivision 35s-D-Disclosure of protected information that has been


unlavvfully acquired

Guide to Subdivision 355-D

355-260 What this Subdivision is about

The disclosure of protected tax information that has been unlawfully acquired is prohibited
i
l
Ta ble of sections

Operative provisions

355-265 Offence-disclosure of protected information acquired in breach of a


taxation law

355-27 0 Exceptio n-d isclosu re of p ub I icly avai lable nformatio


i n

355-275 Exception-disclosure in relation to a taxation law

355-2BO Limits on disclosure to courts and tribunals

Operative provisions

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355-265 Offence-disclosure of protected information acqu¡red in breach of


a taxation law

An entity commits an offence if:

(a) the entity

(i) makes a record of information; or

( ¡i) discloses information to another entity (other than the entity to


whom the information relates or that entity's agent in relation to
the information) or to a court or tribunal; and

(b) the information is *protected information; and

(c) the information was acquired by the entity in breach of a provision of a


*taxation law (including this provision); and

(d) the information was not acquired by the entity as a *taxation officer

Penalty: lmprisonment for 2 years.

355-270 Exception-disclosure of publicly available information

Section 355-265 does not apply if the information was already available to the
public (otherwise than as a result of a contravention of that section, or
section 355-25 or 355-155).

Note: A defendant bears an evidential burden in relation to the matters in this section: see
subsection 13.3(3) of the CriminalCode.

355-275 Exception-disclosure in relation to a taxation law

Section 355-265 does not apply:

(a) to the extent that the entity's actions are required or permitted by a
*taxation law or reasonably necessary in order to comply with an
obligation imposed by a taxation law; or

(b) if the record was made for or the information was disclosed:

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(i) to a *taxation officer; and

(ii) for a purpose connected with administering a


*taxation law

Note: A defendant bears an evidential burden in relation to the matters in this section: see
subsection 13.3(3) of the Criminal Code.

355-280 Limits on disclosure to courts and tribunals


*protected
An entity is not to be required to disclose to a court or tribunal
information that was acquired by the entity under this Subdivision, except where
it is necessary to do so for the purpose of carrying into effect the provisions of a
*taxation law.

Note: See also section 9ZK of this Act (about protection of witnesses)

S u bd ivision 3ss-E-Other matters

Guide to Subdivision 355-E

355-320 What this Subdivision is about

The Commissi er may require a taxation officer to make an oath of affirmation to protect
information.

Federal Court has to grant an injunction restraining an entity from engaging in


conduct that would constitute an offence against this Division
I
I
I
I i
T he Commissioner must i ésue instructions relating to the disclosure of protected tax
information.
I

+able of sections

Operative provisions

355-325 Oath or affirmation to protect information

355-330 lnjunctions to prevent contravention of non-disclosure provisions

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355-335 Procedures for disclosing protected information

Operative provisions

355-325 Oath or affirmation to protect information

(1) A *taxation officer must, if and when required by the Commissioner to do so,
make an oath or affirmation to protect information in accordance with this
Division.

(2) The Commissioner may determine, in writing:

(a) the form of the oath or affirmation; and

(b) the manner in which the oath or affirmation must be made

355-330 lnjunctions to prevent contravention of non-disclosure prov¡s¡ons

lnjunctions

(1) lf an entity has engaged, is engaging or is proposing to engage in any conduct


that constituted, constitutes or would constitute an offence against this Division,
the Federal Court of Australia may, on the application of the Commissioner, grant
an injunction:

(a) restraining the entity from engaging in the conduct; and

(b) if in the court's opinion it is desirable to do so-requiring the entity to do


any act or thing.

lnterim injunctions

(2) lf an application is made to the court for an injunction under subsection (1), the
court may, before considering the application, grant an interim injunction
restraining an entity from engaging in conduct of the kind referred to in that
subsection pending the determination of the application.

Discharge ar variation of injunctions

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(3) The court may discharge or vary an injunction granted under this section

Exercise of power to grant injunçtions

(4) lf an application is made to the court for the grant of an injunction restraining an
entity from engaging in conduct of a particular kind, the power of the court to
grant the injunction may be exercised:

(a) if the court is satisfied that the entity has engaged in conduct of that
kind-whether or not it appears to the court that the entity intends to
engage again, or to continue to engage, in conduct of that kind; or

(b) if it appears to the court that, in the event that an injunction is not
granted, it is likely that the entity will engage in conduct of that
kind-whether or not the entity has previously engaged in conduct of
that kind and whether or not there is an imminent danger of substantial
damage to any other entity if the entity engages in conduct of that kind

(5) The power of the court to grant an injunction requiring an entity to do a particular
act or thíng may be exercised:

(a) if the court is satisfied that the entity has refused or failed to do that act
or thing-whether or not it appears to the court that the entity intends to
refuse or fail again, or to continue to refuse or fail, to do that act or thing;
or

(b) if it appears to the court that, in the event that an injunction is not
granted, it is likely that the entity will refuse or fail to do that act or
thing-whether or not the entíty has previously refused or failed to do
that act or thing and whether or not there is an imminent danger of
substantial damage to any other entity if the entity refuses or fails to do
that act or thing.

No underfakings as fo damages

(6) lf the Commissioner makes an application to the court for the grant of an
injunction under this section, the court must not require the Commissioner or any
other entity, as a condition of the granting of an interim injunction, to give any
undeftakings as to damages.

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Other powers of the court unaffected

(7) The powers conferred on the court under this section are in addition to, and not in
derogation of, any other powers of the court, whether conferred by this Act or
othen¡uise.

355-335 Procedures for disclosing protected informat¡on

(1) The Commissioner must issue instructions in relation to the procedures to be


followed by *taxation officers in disclosing *protected information under the
exceptions in sections 355-55 (about disclosures to Ministers), 355-65 (about
disclosures for other government purposes) and 355-70 (about disclosures for
law enforcement and related purposes).

(2) The instructions must:

(a) be issued within 6 months after the commencement of this section; and

(b) be in writing; and

(c) provide for the matters mentioned in subsection (3); and

(d) be published on the Australian Taxation Office website

(3) The matters are:

(a) the processes to be follgwed before *protected information can be


disclosed by a *taxation officer under the exceptions in sections 355-55,
355-65 and 355-70; and

(b) the processes involved in obtaining and giving the agreement


mentioned in paragraphs 355-55(1)(c) and 355-70(1Xc); and

(c) other matters the Commissioner considers appropriate

(4) Without limiting subsection 33(3) of the Acts lnterpretation Act 1901 , the
Commissioner may vary or revoke the instructions.

(5) A failure to comply with the time limit in paragraph (zXa) does not:

(a) prevent the Commissioner from issuing the instructions after this time; or

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(b) affect the validity of the instructions when issued

(6) A failure to comply with the instructions does not, of itself, mean that a *taxation
officer is not entitled to rely on the exceptions in sections 355-55, 355-65 and
355-70.

(7) The instructions are not a legislative instrument.

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Home / About AIO / Access. âccountabì¡litv and reoorlino / Your orivacv / Secure and orivate ¡nlormat¡on
/ Procedures for disclosing protected ¡nformation Natalie u Miller
Justice of the Peace
No 202244
Procedures for disclosing protected information

Here you will find detailed information about the following procedures

. Procedures for disclosinq protected information under Schedule 1 of the Taxation


Administration Act 1 953
. Before protected information can be disclosed bv us to a Minister
. Before orotected information can be disclosed by us for other qovernment purposes
. Before protected information can be disclosed b)¡ us for law enforcement and related
purposes

Procedures for disclosing protected information under


Schedule '1 of the Taxatlon Admtnlstration Act /953
Overview

. The procedures and instructions set out in this document have been developed to
satisfy the Commissioner's obligations under section 355-335 of Schedule 1 of the
Taxation Administration Act /953 (TAA),
. Section 355-335 of Schedule 1 to the TAA requires the Commissioner to issue and
publish instructions about the procedures to be followed by taxation officers when
disclosing protected information under:
. section 355-55 (disclosures to Ministers)
. section 355-65 (disclosures for other government purposes)
. section 355-70 (disclosures for law enforcement and related purposes).

. All references to legislation in this document are to Schedule 1 to the TAA, unless
otherwise indicated.

Background

. The tax law secrecy provisions in Division 355 of Schedule 1 to the TAA apply to
protected information. Protected information is defined to mean information disclosed
or obtained under or for the purposes of a taxation law (other than the Tax Agent
Serutces Act 200Q, which relates to the affairs of an entity (including but not limited to
the entity's tax affairs), and which identifies, or is reasonably capable of being used to
identify, that entity.
. To be protected, the information need not relate to a living individual, but can relate to
any entity as defined in section 960-100 ot the lncome Tax Assessment Act 1997, thal
is:
. an individual
. a body corporate

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. a body politic
. a partnership
. any other unincorporated association or body of persons
. a trust
. a superannuation fund
. an approved deposit fund.

. Protected information may be contained in written documents, conversations,


electronic recordings, transcripts or any other form in which information can be
recorded. lt includes information obtained directly from a taxpayer or information
generated by us (for instance, through collating or cross-referencing information from
a variety of sources).
. lt is an offence under section 355-25 for a tax officer to disclose protected information
other than to the entity who the information is about, or that entity's representative,
unless the disclosure is permitted under one of the exceptions in Division 355.
. A tax officer who proposes to disclose protected information under one of the
exceptions in Division 355 must always ensure that their disclosure will fit the
circumstances stipulated in the exception they propose to apply.
. For disclosures under the exceptions in sections 355-55, 355-65 or 355-70, a tax
officer must follow the instructions in this document.

Before protected information can be disclosed by us to a


Minister
lntroduction

. Division 355 permits a tax officer to disclose protected information to Ministers in the
circumstances set out in the table in subsection 355-55(1). These are:
. to enable any Minister to exercise a power or perform a function under a taxation
law (table item 1)
. to enable the Minister to respond directly to the entity the information is about in
relation to a representation made by that entity either to the Minister or another
member of Parliament (table item 2)
. to the Minister for the purpose of informing decisions made under the
Compensation for Detriment Caused by Defectivà Administration Scheme (table
item 3)
. to the Finance Minister, for the purpose of the making, or possible making, of an
act of grace payment connected to the administration of a taxation law, or the
waiver or possible waiver of a tax debt (table item 4)
. to any Minister for the purpose of making a decision about or administering an ex-
gratia payment, whether or not the payment is tax-related (table item 5)
. to specified Ministers for the purpose of enabling.them to discharge specified
responsibilities but only information contained in the Register of Foreign Ownership
of Agricultural Land (table item 6).

Process

The following paragraphs in this section list the process that tax officers must follow
before disclosing protected information to a Minister under section 355-55.
Ensure that you are authorised to make the disclosuie.
. Section 355-55 permits any tax officer to lawfully disclose protected information
under section 355-55.

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. Tax officers must also comply with any policies dètermined by their business line
regarding minimum classification levels for making disclosures to recipients of a
kind listed in subsection 355-55 (1 ). fhe Taxation Authorisations Guidelines are
available to tax officers on our intranet.

Consult with Parliamentary Services in Corporate Relations, or a Parliamentary


business Iine coordinator.
. A tax officer who proposes to disclose protected information to a lr4inister must
consu¡t Parliamentary Services in Corporate Relaiions, or a Parliamentary business
line coordinator. A list of Parliamentary business line coordinators is available to tax
officers on our intranet.
. For further information on the provision of ministerial and Parliamentary services to
Treasury portfolio ministers consult PS CM 2003113 Provision of Services to the
Treasurer and Minister for Revenue and Assistant Treasurer that is available to tax
officers on our intranet.

. Determine whether one of the table items in section 355-55 will apply to the proposed
disclosure.
. Ensure that the proposed recipient of the protected information is an entity
described in column 2 of the table item that w¡ll be relied on,
. Ensure that the purpose for which the information would be disclosed fits the
description of a lawful purpose for disclosure set out in column 3 of the table item
that will be relied on.
. The table items are an exhaustive list of circumstances in which disclosures of
protected information may be made under section 355-55. They are not examples.
The proposed disclosure must fit one of the table items in order to be permitted
under section 355-55.
. Note that there are some other very limited circumstances in which protected
information may be disclosed to a Minister apart from under section 355-55. The
processes set out in this CMPI apply only to those disclosures of protected
information to Ministers that are made under section 355-55. An example is that
protected information about a Minister's own affairs as a taxpayer may be provided
to that Minister, consistent with section 355-25.
. Details of all circumstances in which protected information may be disclosed to a
Minister, both under section 355-55 and apart from under section 355-55, are set
out in Law Administration Practice Statement PS LA 2004/09 Disclosure to
Ministers of information about the affairs of taxpayers.

Obtain senior officer agreement.


. lf a tax officer who proposes to disclose protected information under section 355
-55 is not the Commissioner, a Second Commissioner, an SES employee or acting
SES employee of the ATO, they must obtain agreement that the disclosure of
protected information is covered by the table item in section 355-55 they propose
to apply, from
- the Commissioner
- a Second Commissioner
- an SES employee or acting SES employee of the ATO who is not the disclosing
off iceis direct supervisor.

. The Parliamentary coordinator who is managing the relevant work item seeks
senior officer agreement by submitting to them an approvals and agreement
template which specifies the table item in section 355-55 under which protected
information will be disclosed,

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. The senior officer from whom agreement is sought checks that the statutory criteria
for the particular table item identified on the template have been satisfied.
. The senior officer indicates on the template that they agree that the proposed
disclosure is covered by the nominated table item, and notifies the Parliamentary
coordinator that agreement has been given.

Record senior officer agreement.


. The document recording the senior officer agreement should be attached to the
relevant work item in the Parliamentary Workflow System, prior to returning the
work item to Parliamentary Services for disclosure to the Minister.

Before protected information can be disclosed by us for other


government purposes
lntroduction

. Division 355 permits a tax officer to disclose protected information for government
purposes set out in tables 1 to 7 in section 355-65. These are:
. table 1: Records or disclosures relating to social welfare, health and safety
. table 2: Records or disclosures relating to superannuat¡on or finance
. table 3: Records or disclosures relating to corporäte regulation, business, research
or policy
. table 4: Records or disclosures relating to other taxation matters
. table 5: Records or disclosures relating to rehabilitation or compensation
. table 6: Records or disclosures relating to the environment
. table 7: Records or disclosures relating to miscellaneous matters.

Process

. The following paragraphs in this section list the process that tax officers must follow
before disclosing protected information for other government purposes under section
355-65.
. Ensure that you are authorised to make the disclosure.
. Section 355-65 permits any tax officer to lawfully disclose protected information
under section 355-65.
. However, tax officers must comply with any policies determined by their business
line regarding minimum classification levels for making disclosures to recipients of
a kind listed in section 355-65, The Taxation Authorisations Guidelines are
available to tax officers on our intranet.

. Determine whether one of the table items in section 355-65 will apply to the proposed
disclosure.
. Ensure that the proposed recipient of the protected information is an entity
described in column 2 of the table item that will be relied on.
. Ensure that the purpose for which the information would be disclosed fits the
description of a lawful purpose for disclosure set out in column 3 of the table item
that will be relied on.
. The table items are an exhaustive list of circumstances in which disclosures of
protected information may be made under section 355-65. They are not examples
The proposed disclosure must fit one of these table items in order to make a
disclosure under section 355-65.

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. Comply with any Memorandum of Understanding (N/OU) that applies to the proposed
disclosure.
. ldentify and comply with any MOU that applies to a proposed disclosure of
protected information to a particular recipient. An MOU cannot authorise any
disclosure of protected information that is not consistent with the secrecy
provisions in taxation law. But it may stipulate agreed conditions for information
disclosure, such as timeframes for responding to requests, or agency contacts
through which requests and disclosures are to be directed.
. Refer to the table of MOUs maintained by Corporate Relations, available to tax
officers on our intranet.
. Direct any questions about compliance with a paiticular MOU to the MOU
manager listed in the Corporate Relations MOU table available to tax officers on
our intranet or identified in the MOU itself.

Before protected information can be disclosed by us for law


enforcement and related purposes
lntroduction

Division 355 permits a tax officer to disclose protected information to thè entities and
in the circumstances set out in the table in section 355-70. These are:
. to an authorised law enforcement agency officer, or a court or a tribunal, for the
purpose of investigating a serious offence, or enforcing a law the contravention of
which is a serious offence, or the making, or proposed or possible making, of a
proceeds of crime order (table item 1)
. to an authorised ASIO officer, for the purpose of þerforming ASIO s functions under
subsection 1 7(1 ) of the Australtan Security lntelligence Organisation Act / 979
(table item 2)
. to a Project Wickenby officer, or a court or tribunal, for or in connection with a
purpose of the Project Wickenby taskforce (made before 1 July 2013, or a later
prescribed day) (table item 3)
. to a taskforce officer of a prescribed taskforce, or a court or tribunal, for or in
connection with a purpose of the prescribed taskforce (made within the time limit, if
any, prescribed by the regulations) (table item 4)'
. to a Royal Commission in respect of which Letters Patent issued by the Governor-
General declare that the Royal Commission is a Royal Commission to which this
table item applies, or a member of such a Royal Commission, for the purpose of
the Royal Commission conducting its inquiry (table item 5)
. to a Royal Commission of a State or a Territory prescribed by the regulations for
the purposes of this table item, a commission of inquiry of a State or a Territory
prescribed by the regulations for the purposes of this table item, or a board of
enquiry of a State or a Territory prescribed by the'regulations for the purposes of
this table item, for the purpose of investigating a serious offence, or enforcing a law
the contravention of which is a serious offence, or the making, or proposed or
possible making, of a proceeds of crime order (table item 6).

Process

. The following paragraphs in this section list the process that tax officers must follow
before disclosing protected information for law enforcement and related purposes
under section 355-70.

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. Consult the lnformation Disclosure Team in the Serious Non-compliance business line

. A tax officer who proposes to disclose protected information under section 355-70
must consult with the lnformation Disclosure Team in Serious Non-compliance.
. Disclosure templates provided by the lnformation Disclosure Team must be
completed.
. The disclosure must be approved by the lnformation Disclosure Team.
. The lnformation Disclosure Team will anange all necessary authorisations and
agreements without which disclosures under seciion 355-70 cannot be made.
They also ensure that statutory reporting requìrements in relation to section 355-70
are met.

Ensure that you are authorised to make the disclosure.


. A tax officer other than the Commissioner or Second Commissioner can only
disclose protected information under section 355-70 if they have been delegated to
do so by the Commissioner, or if they have been authorised to do so by the
Commissioner or one of the Commissione/s delegates. Only certain Senior
Executive Service officers have a delegation from the Commissioner to disclose
protected information and to authorise other tax officers to disclose þrotected
information under section 355-70. This is an additional requirement that applies to
this exception only, Note this is a separate requirement to the senior officer
agreement set out in paragraph 28.
. A tax officer who has not been authorised to do so by the Commissioner or
Commissione/s delegate must not disclose any protected information under
section 355-70.
. All inquiries about authorisations for the purposes of section 355-70 must be
directed to the lnformation Disclosure Team in Serious Non-compliahce.

Determine whether one of the table items in section 355-70 will apply to the proposed
disclosure.
. Ensure that the proposed recipient of the protected information is an entity
described in column 2 of the table item that will be relied on.
. Ensure that the purpose for which the information would be disclosed fits the
description of a lawful purpose for disclosure set out in column 3 of the table item
that will be relied on.
. The table items are an exhaustive list of circumstances in which disclosures of
protected information may be made under section 355-70. They are not examples
The proposed disclosure must fit one of the table items to be permitted to make a
disclosure under section 355-70.
. The defined terms in section 355-70 must be carefully observed in assessing the
application of the table items in that section.

. Comply with any Memorandum of Understanding (MOU) that applies to the proposed
disclosure.
. ldentify and comply with any MOU that applies to a proposed disclosure of
protected information to a particular recipient. An MOU cannot authorise any
disclosure of protected information that is not consistent with the secrecy
provisions in taxation law. But it may stipulate agt:eed conditions for information
disclosure, such as timeframes for responding to requests, or agency contacts
through which requests and disclosures are to be directed
. Refer to the table of MOUs maintained by Corporate Relations, available to tax
officers on our intranet.

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. Direct any questions about compliance with a particular MOU to the MOU
manager listed in the MOUs Corporate Relations table available to tax officers on
our intranet or identified in the MOU itself.

Obtain senior officer agreement.


. lf a tax officer who proposes to disclose protected information under section 355
-70 is not the Commissioner, a Second Commissioner, an SES employee or acting
SES employee of the ATO, they must obtain agreement that the disclosure of
protected information is covered by the table item in section 355-70 they propose
to apply, from:
- the Commissioner
- a Second Commissioner
- an SES Employee or acting SES employee of the ATO.

. Senior officer agreement is sought by the lnformation Disclosure Team, by


submitting a disclosure checklist on which the statutory criteria for the relevant
table item are listed and checked off by a member of the lnformation Disclosure
Team.
. The senior officer from whom agreement is sought checks that the statutory criteria
for the particular table item have been satisfied.
. The senior officer electronically signs the checklist to indicate that they agree that
the proposed disclosure is covered by the table item indicated in the disclosure
checklist and notifies the lnformation Disclosure Team that agreement has been
given.

Lasl modified: 08 Mar 2016 QC24421

Provide feedback about this page.

Our commitment to you

We are committed to providing you with accurate, consistent and clear information to help you understand your rights and
entitlements and meet your obligations.

lf you follow our information and it turns out to be incorrect, or it is misleading and you make a mistake as a result, we will take
that into account when determining what action, if any, we should take.

Some of the information on this website applies to a specific financial year. This is clearly marked. Make sure you have the
information for the right year before making decisions based on that information.

lf you feel that our information does not fully cover your circumstances, or you are unsure how it applies to you, contact us or
seek professional advice.

Copyright not¡ce

O Australian Taxation Office for the Commonwealth of Australia

You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO
or the Commonwealth endorses you or any of your services or products),

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lnstructions for filling out a consent judgment/order
These are instructions to hefp prepare a consent judgmenVorder. lt is important to complete this form using your
own details and based on your own circumstances. lf you need more help, get legal advice.

Form 44 (version 3)
UCPR 36.14

GONSENT #JUDGMENT #ORDER


Delete the word 'judgment' or'order' above

Court Write'Local Court'


#Division Write'Small Claims Division'
#List Delete or leave blank

Registry Write the court where the statement of claim was filed
Case number Write the case number from statement of claim

lFirstl plaintiff Iname]


THIS AND THE FOLLOWING ....?...PAGES
IS THE ANNEXURE MARKED ¿
#Second plaintiff #Number of
plaintiffs (if more than two) REFERRED TO IN THE AFFIDAVIT
oF "K c"'k'?!:fÞ ' qL^1^Ì2
SWoR N 4T....6.;'1Pn:î.:1................
THIS ..J1... DAY 20rå
[First] defendant Iname] BEFORE ME:

#Second defendant #Number of Natalie ise Miller


defendants (if more than two) Justice of the peace
Delete if there is only one
defendant
No 202244

Prepared for [name] [role of party eg plaintiffl Write your name, your role
in the case, for example, plaintiff or defendant

#Legal representative [solicitor on record] ffirml Delete or leave blank


#Legal representative reference [reference number] Delete or leave blank
Contact name and telephone [name] [telephone] Write your name and telephone number
Contact email [email address] Write your emailaddress

1 Write the details of your agreement to settle the case. lnclude the amount of money to be
paid or a description of the goods to be returned, details of any instalment payments and
payment of legal costsl

2ll
[See UCPR 36.14 for more information about what can be included in a consent judgment or order.]

lnstructions only. This is not legal advice


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69
lnstructions for filling out a consent judgment
These are instructions to help prepare a consent judgmenVorder. lt is important to complete this form using your
own details and based on your own clrcumstances. lf you need more help, get legal advice.

tl '
,
,,1,',,,:' ., ' ..,
t,L:
.;:,,.r
i,
fil
[Role of party] write'Defendant'

[name]Write your name name, [role of party] Write'defendant' consents


#Signature of legal representative Leave blank
#signature of or on behalf of The defendant needs to sign here once the form is completed
party if not legally represented
Capacity [eg solicitor, authorised officer, role of party]Write
'Defendant (or 'Authorised Officer of Defendant if defendant is
a company or association.)
Date of signature The defendant needs to write the date they signed the form

[repeat as required for each party signingl Copy the above section under 'SIGNATURES' for the plaintiff to
complete

Court seal Leave blank

Signature Leave blank

Capacity Leave blank


Date made or given Leave blank
Date entered Leave blank

Subject to limited exceptions, no variation of a judgment or order can occur except on


application made within 14 days after entry of the judgment or order.

lnstructions only. This is not legal advice.


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70
lnstructions for filling out a consent judgment
These are instructions to help prepare a consent judgmenVorder. lt is Ìmportant to complete this form using your
own details and based on your own circumstances. lf you need more help, get legal advice.

[on separate page]

finclude only if more than two plaintiffs and/or more than two defendants and/or any cross-claims. There is no
need to include this page for interlocutory orders.l

PLATNTT FF['S]ISI CLArM

Plaintiff[s] Defendant[s]
[name] [role of party eg first plaintiffl [name] [role of party eg first defendant]
[repeat as required for each additional plaintiffJ [repeat as required for each additional defendant]

#[FTRSTI CROSS-CLATM

Cross-claimantlsl Cross-defendant[s]
[name] [role of party eg first cross-claimant to [name] [role of party eg first cross-defendant
first cross-claiml to first cross-claiml
[repeat as required for each additional cross-claimant] [repeat as required for each additional cross-defendant]
[repeat as required for each additional cross-claim]

lnstructions only. This is not legal advice.


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O TimeBase 2018

Uniform Civil Procedure Rules 2005 / Part 36 Judqments and orders / Division 4 Settinq
aside and variation of judgments I 36.15 General power to set aside judgment or order

36.15 General power to set aside judgment or order

(cf DCR Part 13, rule 1, Part31, rule 124; LCR Part 11, rule 1, Part26, rule 3)

(1) A judgment or order of the court in any proceedings may, on sufficient cause being
shown, be set aside by order of the court if the judgment was given or entered, or the order
was made, irregularly, illegally or against good faith.

(2) A judgment or order of the court in any proceedings may be set aside by order of the
court if the parties to the proceedings consent.
THIS AND THE FOLLOWING ...A,,.PAGES
S T H E A N N E X U R E M A R K E D .. ........Þ-..........
I

REFEFRED TO IN THE AFFIDAVIT


op ...ffiÐ#.....".1m.. _qx*rur
Swo R N AT..... .s...'1.Þl.-*
THIS...tJ... DAYOF 20(g
BEFORE ME:
.....¡.....¡.r aaaa

Nata te se Miller
Justice of the peace
No 202244

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@ T¡meBase 2018

Limitation Act 1969 / Part 2 Periods of limitation and related matters i Division 5 Trusts / 47
Fraud and conversion; trust property

47 Fraud and conversion; trust property


(1) An action on a cause of action

(a) in respect of fraud or a fraudulent breach of trust, against a person who is, while
a trustee, a party or privy to the fraud or the breach of trust or against the
person's successor,

(b) for a remedy of the conversion to a person's own use of trust property received
by the person while a trustee, against that person or against the person's
successor,

(c) to recover trust property, or property into which trust property can be traced,
against a trustee or against any other person, or

(d) to recover money on account of a wrongful distribution of trust property, against


the person to whom the property is distributed.or against the person's successor,

is not maintainable by a trustee of the trust or by a beneficiary under the trust or by a


person claiming through a beneficiary under the trust if brought after the expiration of the
only or later to expire of such of the following limitation períods as are applicable:

(e) a limitation period of twelve years running from the date on which the plaintiff or a
person through whom the plaintiff claims first discovers or may with reasonable
diligence discover the facts giving rise to the cause of action and that the cause
of action has accrued, and

(0 the limitation period for the cause of action fixed by or under any provision of this
Act other than this section.

(2) Except in the case of fraud or a fraudulent breach of trust, and except so far as
concerns income converted by a trustee to his or her own use or income retained and still
held by the trustee or his or her successor at the time when the action is brought, this
section does not apply to an action on a cause of action to recover arrears of income.
THIS AND THE FOLLOWING e.. pnags
IS THE ANNEXURE MARKED ....ç,.............
REFERRED TO IN THE AFFIDAVIT
or ...1*N...flsYÞ... k"-ü,2
Natalie Louise Mille rSWO
R N 4T..... .*-'t Ðr:.n.T.....,.........
.

"irrsliC€ of the Peace TH|S...rì... DAYOF.. ,.... 20 ú


'244 BEFORE ME:

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@TimeBase 2018

Limitation Act 1969 / Part 3 Postponement of the bar / Division 2 Disabilitv, confirmation.
fraud and mistake / 55 Fraud and deceit THIS AND THE FOLLOWING o PAGES
IS THE ANNEXURE MARKED
55 Fraud and deceit REF ERRED TO IN THE AFF VIT
OF ..33ßPcd
SWORN 4T...
(1) Subject to subsection (3) where: TH¡S...l]].. DAyoF 20 ra
BEFORE ME:

(a) there is a cause of action based on fraud or deceit, or '_'.""^"


Nata lle ise Mill er
Justice of the peace
a cause of action or the identity of a person against whom qç¡rE¡22[4$ion lies -
-
(b)
is fraudulently concealed,

the time which elapses after a limitation period fixed by or under this Act for the cause of
action commences to run and before the date on which a person having (either solely or
with other persons) the cause of action first discovers, or may with reasonable diligence
discover, the fraud deceit or concealment, as the case may be, does not count in the
reckoning of the limitation period for an actìon on the cause of action by the person or by a
þerson claiming through the person against a person answerable for the fraud deceit or
concealment.

(2) Subsection (1) has effect whether the limitation period for the cause of action would,
but for this section, expire before or after the date mentioned in that subsection.

(3) For the purposes of subsection (1), a person is answerable for fraud deceit or
concealment if, but only if:

(a) the person is a party to the fraud deceit or concealment, or

(b) the person is, in relation to the cause of action, a successor of a party to the fraud
deceit or concealment under a devolution from the party occurring after the date
on which the fraud deceit or concealment first occurs.

(4) Where property is, after the first occurrence of fraud deceit or concealment, purchased
for valuable consideration by a person who is not a party to the fraud deceit or concealment
and does not, at the time of the purchase, know or have reason to believe that the fraud
deceit or concealment has occurred, subsèction (1) does not, in relation to that fraud deceit
or concealment, apply to a limitation period for a cause of action against the purchaser or a
person claiming through the purchaser.

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Uniform Civil Procedure Rules 2005 I Part 114 Service under the Hague Convention

Part 11A Service under the Hague Convention


THrs AND THE FoLLowrNc ...12.. pAcgs
rs rHE ANNEXURE MARKED.......fr:.....,......
Division 1 Preliminary REFERRED TO IN THE AFFIDAVIT
or 4Ê4âe*.... n*9c#là-
. ...k! 2
Natalie Louise Miller swonN ar..,.å{ãlÍ.L.
Note I Justice of the Peace TH¡S..f).... DAy OF 20ú
No 202244 BEFORE ME:
This Part forms part of a scheme to i mplement Australia's obligations under the
the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Under the
Convention, the Attorney-General's Department of the Commonwealth is designated as the Central
Authority (under Article 2 of the Convention) and certain courts and government departments are, for
certain purposes, designated as "other" or"additional" authorities (underArticle 18 of the Convention)

Note 2.

This Pañ provides (in Division 2) for service in overseas Conventíon countries of localjudicial
documents (documents that relate to proceedings in the Court) and (in Division 3) for default
judgment in proceedings in the Court after service overseas of such a document. Division 4, on the
other hand, deals with service by the Court or arranged by the Court in its role as an other or
additional authority, of judicial documents emanating from overseas Convention countries.

Note 3.

The Attorney-General's Department of the Commonwealth maintains a copy of the Convention, a list
of all Convention countries, details of declarations and objections made under the Convention by
each of those countries and the names and addresses of the Central and other authorities of each of
those countries. A copy of the Convention can be found at http://www.hcch.net.

11A.1 Definitions

ln this Part:

additional authority, for a Convention country, means an authority that is:

(a) for the time being designated by that country, under Article 18 of the Hague
Convention, to be an authority (other than the Central Authority) for that country,
and

(b) competent to receive requests for service abroad emanating from Australia

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applicant, for a request for service abroad or a request for service in this jurisdiction,
means the person on whose behalf service is requested.

Note.

The term applícant may have a different meaning in other Parts of these rules.

Central Authority, for a Convention country, means an authority that is for the time being
designated by that country, under Article 2 of the Hague Convention, to be the Central
Authority for that country.

certificate of sentice means a certificate of service that has been completed for the
purposes of Article 6 of the Hague Convention.

certifying authority, for a Convention country, means the Central Authority for the country
or some other authority that is for the time being designated by the country, under Article 6
of the Hague Convention, to complete certificates of service in the form annexed to the
Hague Convention.

civil proceedings means any judicial proceedings in relation to civil or commercial matters

Convention country means a country, other than Australia, that is a party to the Hague
Convention.

defendant,'nor a request for service abroad of an initiating process, means the person on
whom the initiating process is requested to be served.

foreign judicial documenf means a judicial document that originates in a Convention


country and that relates to civil proceedings in a court of that country.

forwarding authorit¡r

(a) for a request for service of a foreign judicial document in this jurisdiction-the
authority or judicial officer of the Convention country in which the document
originates that forwards the request (being an authority or judicial officer that is
competent under the law of that country to forward a request for service under
Article 3 of the Hague Convention), or

(b) for a request for service of a localjudicial document in a Convention country-the


Registrar,

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Hague Convention means the Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November
'1965.

initiating process means any document by which proceedings (including proceedings on


any cross-claim or third party notice) are commenced.

Iocaljudicial documenf means a judicial document that relates to civil proceedings in the
Court.

Registrar means the principal registrar of the Court, and includes any other person who, by
delegation or othenruise, is authorised to exercise the functions of that office.

request for seruice abroad means a request for service in a Convention country of a local
judicial document mentioned in rule 11A.4 (1).

request for seruice in this jurisdiction means a request for service in this jurisdiction of a
foreign judicial document mentioned in rule 114J3 (1)

the Court means the Supreme Court.

this jurisdiction means New South Wales.

11A.2 Provisions of this Part to prevaif

The provisions of this Part prevail to the extent of any inconsistency between
those provisions and any other provisions of these rules.

Division 2 Seruice abroad of local judicial documents

114.3 Application of Division

(1) Subject to subrule (2), this Division applies to service in a Convention country of a
local judicial document.

(2) This Division does not apply if service of the document is effected, without application
of any compulsion, by an Australian diplomatic or consular agent mentioned in Article I of
the Hague Convention.

11A.4 Application for request for service abroad

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(1) A person may apply to the Registrar, in the Registrar's capacity as a forurarding
authority, for a request for service in a Convention country of a localjudicial document.

(2) The application must be accompanied by 3 copies of each of the following documents

(a) a draft request for service abroad, which must be in the approved form,

(b) the document to be served,

(c) a summary of the document to be served, which must be in the approved form,

(d) if, under Article 5 of the Hague Convention, the Central Authority or any
additional authority of the country to which the request is addressed requires the
document to be served to be written in, or translated into, the official language or
one of the official languages of that country, a translation into that language of
both the document to be served and the summary of the document to be served.

(3) The application must contain a written undertaking to the Court, signed by the legal
practitioner on the record for the applicant in the proceedings to which the localjudicial
document relates or, if there is no legal practitioner on the record for the applicant in those
proceedings, by the applicant:

(a) to be personally liable for all costs that are incurred:

(i) by the employment of a person to serve the documents to be served,


being a person who is qualified to do so under the law of the Convention
country in which the documents are to be served, or

( ii) by the use of any partiiular method of service that has been requested
by the applicant for the service of the documents to be served, and

(b) to pay the amount of those costs to the Registrar within 28 days after receipt from
the Registrar of a notice specifying the amount of those costs under rule 11A.6
(3), and

(c) to give such security for those costs as the Registrar may require

(4) The draft request for service abroad

(a) must be completed (except for signature) by the applicant, and

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must state whether (if the time fixed for entering an appearance in the
proceedings to which the localjudicial document relates expires before service is
eflected) the applicant wants service to be attempted after the expiry of that time,
and

(c) must be addressed to the Central Authority, or to an additional authority, for the
Convention country in which the person is to be served, and

(d) may state that the applicant requires a certificate of service that is completed by
an additional authority to be countersigned by the CentralAuthority.

(5) Any translation required under subrule (2) (d) must bear a certificate (in both English
and the language used in the translation) signed by the translator stating:

(a) that the translation is an accurate translation of the documents to be served, and

(b) the translator's full name and address and his or her qualifications for making the
translation.

114.5 How application to be dealt with

(1) lf satisfied that the application and its accompanying documents comply with rule
11A..4, the Registrar:

(a) must sign the request for service abroad, and

(b) must fon¡rard 2 copies of the relevant documents:

(i) if the applicant has asked for the request to be fonruarded to a


nominated additional authority for the Convention country in which
service of the document is to be effected-to the nominated additional
authority, or

( i¡) in any other case-to the Central Authority for the Convention country in
which service of the document is to be effected.

(2) The relevant documenfs mentioned in subrule (1) (b) are the following

(a) the request for service abroad (duly signed),


(b)
(b) the document to be served,

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(c) the summary of the document to be served,

(d) if required under rule 1 1A.4 (2) (d), a translation into the relevant language of
each of the documents mentioned in paragraphs (b) and (c).

(3) lf not satisfied that the application or any of its accompanying documents complies
with rule 11é'4, the Registrar must inform the applicant of the respects in which the
application or document fails to comply.

114.6 Procedure on receipt of certificate of service

(1) Subject to subrule (5), on receipt of a certificate


of service in due form in relation to a
localjudicial document to which a request for service abroad relates, the Registrar:

(a) must arrange for the original certificate to be filed in the proceedings to which the
document relates, and

(b) must send a copy of the certificate to:

(i) the legal practitioner on the record for the applicant in those
proceedings, or

( ii) if there is no legal practitioner on the record for the applicant in those
proceed ings-the appliðant.

(2) For the purposes of subrule (1), a certificate of service is in due form if:

(a) it is in the approved form, and

(b) it has been completed by a certifying authority for the Convention country in
which service was requested, and

(c) if the applicant requires a certificate of service that is completed by an additional


authority to be countersigned by the CentralAuthority, it has been so
countersigned.

(3) On receipt of a statement of costs in due form in rel.ation to the service of a local
judicial document mentioned in subrule (1), the Registrar must send to the legal practitioner
or applicant who gave the undertaking mentioned in rule 11Á.4 (3) a notice specifying the
amount of those costs.

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(4) For the purposes of subrule (3), a statement of costs is in due form if

(a) it relates only to costs of a kind mentioned in rule 11A.4 (3) (a), and

(b) it has been completed by a certifying authority for the Convention country in
which service was requested.

(5) Subrule (1) does not apply unless:

(a) adequate security to cover the costs mentioned in subrule (3) has been given
under rule 114.4 (3) (c), or

(b) to the extent to which the security so given is inadequate to cover those costs, an
amount equal to the amount by which those costs exceed the security so given
has been paid to the Registrar.

11A.7 Payment of costs

(1) On receipt of a notice under rule 114.6 (3) in relation to the costs of service, the legal
practitioner or applicant, as the case may be, must pay to the Registrar the amount
specified in the notice as the amount of those costs.

(2) lf the legal practitioner or applicant fails to pay that amount within 28 days after
receiving the notice:

(a) except by leave of the Court, the applicant may not take any further step in the
proceedings to which the localjudicial document relates until those costs are paid
to the Registrar, and

(b) the Registrar may take such steps as are appropriate to enforce the undertaking
for payment of those costs.

114.8 Evidence of service

A certificate of service in relation to a localjudicial document (being a certificate


in due form within the meaning of rule 114.6 (2)) that certifies that service of the
document was effected on a specified date is, in the absence of any evidence to
the contrary, sufficient proof that:

(a) service of the document was effected by the method specified in the certificate on
that date, and

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(b) if that method of service was requested by the applicant, that method is
compatible with the law in force in the Convention country in which service was
effected.

Division 3 Default judgment following seru¡ce abroad of initiating


process

114.9 Application of Division

This Division applies to civil proceedings for which an initiating process has been
fonruarded following a request for service abroad to the Central Authority (or to an
additional authority) for a Convention country.

1 1A.'10 Restriction on power to enter default judgment if certificate of service filed

(1) This rule applies if:

(a) a certificate of service of initiating process has been filed in the proceedings
(being a certificate in due form within the meaning of rule 114.6 (2)) that states
that service has been duly effected, and

(b) the defendant has not appeared or filed a notice of address for service

(2) ln circumstances to which this rule applies, default judgment may not be given against
the defendant unless the Court is satisfied that:

(a) the initiating process was served on the defendant

(i) by a method of service prescribed by the internal law of the Convention


country for the service of documents in domestic proceedings on
persons who are within its territory, or

( ii) if the applicant requested a particular method of service (being a


method under which the document was actually delivered to the
defendant or to his or her residence) and that method is compatible with
the law in force in that country, by that method, or

( iii) if the applicant did not request a particular method of service, in


circumstances where the defendant accepted the document voluntarily,
and

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the initiating process was served in sufficient time to enable the defendant to
enter an appearance in the proceedings.

(3) ln subrule (2) (b), sufficient fi'me means

(a) 42 days from the date specified in the certificate of service in relation to the
initiating process as the date on which service of the process was effected, or

(b) such lesser time as the Court considers, in the circumstances, to be a sufficient
time to enable the defendant to enter an appearance in the proceedings.

11p..11 Restriction on power to enter default judgment if certificate of service not


filed

(1) This rule applies if:

(a) a certificate of service of initiating process has not been filed in the proceedings,
or

(b) a certificate of service of initiating process has been filed in the proceedings
(being a certificate in due form within the meaning of rule 114.6 (2)) that states
that service has not been effected,

and the defendant has not appeared or filed a notice of address for service.

(2) lf this rule applies, default judgment may not be given against the defendant unless
the Court is satisfied that:

(a) the initiating process was fon¡rarded to the Central Authority, or to an additional
authority, for the Convention country in which service of the initiating process was
requested, and

(b) a period that is adequate in the circumstances (being a period of not less than 6
months) has elapsed since the date on which initiating process was so
forwarded, and

(c) every reasonable effort has been made

(i) to obtain a certificate of service from the relevant certifying authority, or

(bli¡) to effect service of the initiating process,

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as the case requ¡res

11A..12 Setting as¡de judgment in default of appearance

(1) This rule applies if default judgment has been entered against the defendant in
proceedings to which this Division applies.

(2) lf this rule applies, the Court may set aside the judgment on the application of the
defendant if it is satisfied that the defendant:

(a) without any fault on the defendant's part, did not have knowledge of the initiating
process in sufficient time to defend the proceedings, and

(b) has a prima facie defence to the proceedings on the merits.

(3) An application to have a judgment set aside under this rule may be filed

(a) at any time within 12 months after the date on which the judgment was given, or

(b) after the expiry of that 12-month period, within such time after the defendant
acquires knowledge of the judgment as the Court considers reasonable in the
circumstances.

(4) Nothing in this rule affects any other power of the Court to set aside or vary a
judgment.

Division 4 Local seru¡ce of foreign judicial documents

114.13 Application of Division

(f) This Division applies to service in this jurisdiction of a foreign judicial document in
relation to which a due form of request for service has been fonruarded to the Court:

(a) by the Attorney-General's Department of the Commonwealth, whether in the first


instance or following a referral under rule 11A.14, or

(b) by a forwarding authority

(2) Subject to subrule (3), a request for service in this jurisdiction is in due form if it is in
the approved form and is accompanied by'the following documents:

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(a) the document to be served,

(b) a summary of the document to be served, which must be in the approved form,

(c) a copy of the request and of each of the documents mentioned in paragraphs (a)
and (b),

(d) if either of the documents mentioned in paragraphs (a) and (b) is not in the
English language, an English translation of the document.

(3) Any translation required under subrule (2) (d) must bear a certificate (in English)
signed by the translator stating:

(a) that the translation is an accurate translation of the document, and

(b) the translator's full name and address and his or her qualifications for making the
translation.

11A.14 Certain documents to be referred back to the Attorney-General's


Department of the Commonwealth

lf, after receiving a request for service in this jurisdiction, the Registrar is of the
opinion:

(a) that the request does not comply with rule 1 14.13, or

(b) that the document to which the request relates is not a foreign judicial document,
or

(c) that compliance with the request may infringe Australia's sovereignty or security,
or

(d) that the request seeks service of a document in some other State or Territory of
the Commonwealth,

the Registrar must refer the request to the Attorney-General's Department of the
Commonwealth together with a statement of his or her opinion.

Note.

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The Attorney General's Department of the Commonwealth will deal with misdirected and non-
compliant requests, make arrangements for the service of extrajudicial documents and assess and
decide questions concerning Australia's sovereignty and security.

114.15 Service

(1) Subject to rule 11A.14, on receipt of a request for serv¡ce in this jurisdiction, the Court
must arrange for the service of the relevant documents in accordance with the request.

(2) The relevant documents mentioned in subrule (1) are the following:

(a) the document to be served,

(b) a summary of the document to be served,

(c) a copy of the request for service in this jurisdiction,

(d) if either of the documents mentioned in paragraphs (a) and (b) is not in the
English language, an English translation of the document.

(3) Service of the relevant documents may be effected by any of the following methods of
service:

(a) by a method of service prescribed by the law in force in this jurisdiction:

(i) for the service of a document of a kind corresponding to the document


to be served, or

( ¡i) if there is no such corresponding kind of document, for the service of


initiating process in proceedings in the Court,

(b) if the applicant has requested a particular method of service and that method is
compatible with the law in force in this jurisdiction, by that method,

(c) if the applicant has not requested a particular method of service and the person
requested to be served accepts the document voluntarily, by delivery of the
document to the person requested to be served.

114.16 Affidavit as to service

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(1) lf service of a document has been effected pursuant to a request for service in this
jurisdiction, the person by whom service has been effected must lodge with the Court an
affidavit specifying:

(a) the time, day of the week and date on which the document was served, and

(b) the place where the document was served, and

(c) the method of service, and

(d) the person on whom the document was served, and

(e) the way in which that person was identified

(2) lf attempts to serve a document pursuant to a request for service in this jurisdiction
have failed, the person by whom service has been attempted must lodge with the Court an
affidavit specifying:

(a) details of the attempts made to serve the document, and

(b) the reasons that have prevented service

(3) When an affidavit as to service of a document has been lodged in accordance with this
rule, the Registrar:

(a) must complete a certificate of service, sealed with the seal of the Court, on the
reverse side of, or attached to, the request for service in this jurisdiction, and

(b) must forward the certificate of service, together with a statement as to the costs
incurred in relation to the service or attempted.service of the document, directly to
the forwarding authority from which the request was received.

(4) A certificate of service must be:

(a) in the approved form, or

(b) if a form of certificate of service that substantially corresponds to the approved


form accompanies the request for service, in that accompanying form.

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