Abedini v Commissioner of AFP

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0111

FARINA ABEDINI	Applicant
v
THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE (& ANOR)	First Respondent
AND
MARIA PSOMAS (IN HER CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF HOMAYUN ABEDINI)	Second Respondent

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JUDGES:	McLEISH, LYONS and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2024
DATE OF JUDGMENT:	7 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 230
JUDGMENT APPEALED FROM:	Abedini v Commissioner of the Australian Federal Police [2023] VCC 658 (Judge Hinchey)

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PROCEEDS OF CRIME – Appeal – Applicant’s husband purchased property with proceeds of crime – Respondent obtained forfeiture orders pursuant to ss 47 and 49 of the Proceeds of Crime Act 2002 (Cth) – Judge dismissed applicant’s applications for exclusion from forfeiture, compensation, exclusion from restraining order, and relief from hardship – Judge found applicant did not have interest in property other than as tenant – Judge found applicant not a credible or reliable witness – Whether judge erred in failing to find that applicant had an equitable interest in property arising from remedial constructive trust – Remedial constructive trust not claimed at trial – Leave to appeal refused.

Muschinski v Dodds (1985) 160 CLR 583; Baumgartner v Baumgartner (1987) 164 CLR 137; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Coulton & Ors v Holcombe & Ors (1986) 162 CLR 1; Water Board v Moustakas (1988) 180 CLR 491; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; Green v Green (1989) 17 NSWLR 343; NSW Trustee and Guardian v Togias (2022) 110 NSWLR 86, considered.

Criminal Code Act 1995 (Cth), ss 400.5, 400.9; Proceeds of Crime Act 2002 (Cth), ss 5, 18, 19, 25, 72, 73, 77 and 78, referred to.

PROCEEDS OF CRIME – Application for relief from hardship – Whether judge applied correct test in determining whether applicant established requisite ‘hardship’ under s 72 of Proceeds of Crime Act 2002 (Cth) – Whether judge erred in concluding that the applicant had not established ‘hardship’ – Leave to appeal refused.

R v Lake (1989) 44 A Crim R 63; Director of Public Prosecutions v Ali (No 2) [2010] VSC 503, considered.

PROCEEDS OF CRIME – Appeal – Fresh evidence application – Application for relief from hardship – Applicant’s daughter diagnosed with Autism Spectrum Disorder – Diagnosis could have been discovered before judgment by exercise of reasonable diligence – If evidence admitted it would not have produced opposite result – Leave to appeal refused.

Commonwealth Bank of Australia v Quade (1991) 178 CLR 141; Orr v Holmes (1948) 76 CLR 632; McDonald v McDonald (1965) 113 CLR 529, considered.

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Counsel
Applicant:		Mr D Mence with Mr E Fryar
First Respondent:		Mr A Dinelli KC with Ms R Burton
Second Respondent:		No appearance
Solicitors
Applicant:	Stamford Law
First Respondent:	Australian Federal Police
Second Respondent:	Mills Oakley

MCLEISH JA
LYONS JA
KAYE JA:

In February 2011, Farhad Nasre Isfhani (‘Isfhani’) entered into a contract for the purchase of a property located at 6A Miowera Road, North Turramurra, New South Wales (‘the Turramurra property’) for the sum of $1,070,000. On 14 November 2014, the respondent, the Commissioner of the Australian Federal Police, made an application under s 25 of the Proceeds of Crime Act 2002 (Cth) (‘the Act’) for a restraining order in respect of the property under s 18 and s 19 of the Act. On 17 November 2014, a judge of the County Court made a restraining order in respect of the property pursuant to s 18 and s 19 of the Act. The order provided that the property not be disposed of, or otherwise dealt with, by any person without the previous written consent of the respondent or until further order.
Isfhani brought an application for exclusion from the restraining order pursuant to s 31 of the Act. However, he subsequently withdrew the application and took no part in the proceedings that are the subject of this application.
In the present proceedings, the applicant made five separate applications at first instance:
(1)An application, which the applicant made with her husband, Homayun Abedini (‘Abedini’) for exclusion from the restraining order pursuant to s 31 of the Act.
(2)An application under s 39 of the Act seeking an ancillary order that the Turramurra property be released from the restraining order in order to enable the applicant to use it as security for raising money to pay a settlement sum to the trustee of Abedini’s bankrupt estate.
(3)An application under s 74 of the Act seeking exclusion from forfeiture.
(4)An application under s 78 of the Act seeking compensation.
(5)An application in respect of the applicant’s two children, Paris and Parsia, for relief for hardship under s 72 of the Act.
In turn, the respondent made an application under s 47 and s 49 of the Act that the Turramurra property be forfeited.
The applications came before a judge of the County Court between April 2022 and September 2022, with further submissions being received in April 2023. In detailed reasons for decision delivered on 30 June 2023, the judge refused each of the five applications to which the applicant was a party, and made an order granting the respondent’s application for forfeiture of the Turramurra property.[1]
[1]Abedini v Commissioner of the Australia Federal Police [2023] VCC 658 (‘Reasons’).
The applicant seeks leave to appeal the decision, and orders made by the judge, on the following three grounds:
Ground One The learned judge erred in fact and law in determining that the appellant did not have an interest (other than that as a tenant) in the Property being an interest as defined by s 338 of the Proceeds of Crime Act 2002 (Cth).
Ground Two The learned judge erred in fact and law in declining Ms Abedini’s an application in respect of her children for relief from hardship.
Ground Three Ms Abedini’s application for relief from hardship (on behalf of her children) should be redetermined in light of fresh evidence that Paris Abedini suffers from autism spectrum disorder which was present but not fully understood or diagnosed at trial.
Particulars
Report of Taylor Moore, clinical psychologist, dated 23 May 2024 and further report of a neuropsychologist which is forthcoming.

Purchase of the Turramurra property

The details relating to the purchase of the Turramurra property were described in an expert report, provided by Mr Colin Hicks, which was tendered as an exhibit in the proceeding.
In summary, upon Isfhani entering into the contract for the purchase of the Turramurra property on 22 February 2011, he paid the deposit of $107,000 to the vendor. Abedini had paid that sum into a Westpac Banking Corporation account that had been opened by Isfhani for the purpose of purchasing the property.
In May 2011, Isfhani entered into an agreement with the ING Bank to borrow $855,925, constituting 80% of the purchase price of the Turramurra property. Settlement of the sale of the property took place on 23 May 2011. Three days earlier, Abedini provided $121,804.42 for settlement of the property from his account with Commonwealth Bank of Australia (‘CBA’). In addition to the amount borrowed by Isfhani from the ING Bank, Isfhani also provided $33,000 for the settlement of the sale, which sum was repaid to him by Abedini on 25 July 2011. In addition, Abedini paid Isfhani’s conveyancing fees.
Between June 2011 and February 2015, Abedini made more than 85 payments to Isfhani, totalling in excess of $200,000, for the purpose of payment of the mortgage.
Subsequently, between July 2017 and April 2021, several mortgage repayments were also made from a bank account with the St George Bank in the name of the applicant. In addition, two more repayments were made from a CBA bank account in the name of Sydney International Connect, which was an unregistered money remitter.

Abedini’s position

Abedini became bankrupt on 20 April 2017 on a creditor’s petition filed by the Deputy Commissioner of Taxation. On 6 March 2019, Mr Max Donnelly was appointed the trustee of Abedini’s bankrupt estate (‘the Trustee’). The Trustee elected to continue Abedini’s application for exclusion on behalf of his bankrupt estate.
In February 2020, Judge O’Neill of the County Court made orders permitting the Trustee to sell the restrained property for the purpose of paying creditors’ claims. The effect of the order was that the balance of the proceeds of the sale of the property, after payment of debts, were to be held by the Trustee as restrained funds.
Subsequently, in July 2020, the Trustee issued proceedings in the Federal Circuit Court against Isfhani and the applicant. The respondent was not a party to the proceeding. The proceeding was settled without adjudication in November 2020, on terms set out in a Deed of Settlement between the Trustee, Isfhani and the applicant. In the proceeding, Judge Street of the Federal Circuit Court made consent orders, which included a declaration that the Trustee held the Turramurra property on trust in favour of Abedini and the applicant (the ‘Federal Circuit Court orders’).
Subsequently, the Trustee withdrew from the proceeding in the County Court, and abandoned the exclusion application on behalf of Abedini’s estate.

The evidence

The applicant deposed four affidavits in the proceeding. In addition, she gave viva voce evidence, and was cross-examined in some detail. Her two children, Paris and Parsia, also deposed affidavits. Three other witnesses deposed affidavits, but, in view of the proposed grounds of appeal, it is not necessary to further refer to them.
In her first affidavit (affirmed 11 June 2019), the applicant deposed that she and Abedini had divorced on 15 January 2014, and that, during the divorce ceremony, Abedini had agreed to gift to her his interest in the Turramurra property ‘as dowry’. In respect of that evidence, the judge noted that the applicant had not made any mention of the fact of a divorce in a document filed with the court before the affidavit. Further, Abedini had not been called to give evidence about the matter.[2]
[2]Reasons, [35].
In her second affidavit (affirmed 13 February 2020), the applicant deposed that she and Abedini had transferred the money, that they had in Iran, to Australia for the purchase of a residential property, and that Abedini had made ‘three major transactions’, totalling $330,807.69, from those funds. She said that those amounts had been transferred in October and November 2008 into bank accounts with the National Australia Bank and the CBA.
In her third affidavit (affirmed 25 July 2021), the applicant set out her asset position. She confirmed that she and Abedini had been married in about 1995, and that Islamic marriage provided for an outstanding dowry of 250 gold pieces to be paid by Abedini in the event of divorce. The applicant also deposed that Islamic custom and culture determined that, upon her marriage to Abedini, their interests were ‘joined’. She further stated that in about April 2000, she sold an apartment in Iran, which she owned, for about $235,000. As she did not then need the money, she asked her brother-in-law to invest it for her. She said that in 2008, when Abedini and she were considering purchasing a family home, she then requested her brother-in-law to transfer that money (which then totalled $330,807.69) to Australia.
The judge noted that the above assertion by the applicant was inconsistent with her earlier affidavit, in which she deposed that the transfers had been effected by Abedini.[3] The applicant further referred to the divorce ceremony, which she underwent with Abedini in 2014, and she deposed as to her understanding as to the orders made in the Federal Circuit Court.
[3]Ibid [47(c)].
The applicant’s fourth affidavit (affirmed 8 April 2022) was primarily directed to the claim for hardship on behalf of her two children. In the affidavit, she explained her financial position. She said that she was an artist, and that her home was a studio and art gallery from which she operated. If she lost her home, she would lose her business. She also explained that she had lost her employment with the government in August 2021, that she was then employed by Outland Sandpiper Trading (‘Outland Sandpiper’), and that she had three shops in Iran that were part of her dowry from Abedini.
In two further affidavits (affirmed 20 April 2022 and 21 April 2022), the applicant deposed further concerning her assets and her role with Outland Sandpiper.
Paris Abedini deposed a short affidavit (dated 8 April 2022) in support of the applicant’s claim. Paris had been living in the Turramurra home since 2011. She had attended the local primary school and high school for 12 years, and was at that time a first year student at Macquarie University, studying psychology. Paris stated that ‘all her livelihood, friendships and connections’ belonged to the area in which the Turramurra home was located, and that if the house was taken from them, she would have ‘absolutely nothing and nowhere to go’. Paris further deposed that on learning that the home might be forfeited, and observing her mother and brother struggle with anxiety and fear, she herself had become stressed and depressed, and accordingly she had attended counselling sessions on a regular basis since 2015 with a psychiatrist, Dr Artin Jebejian.
In his affidavit (also dated 8 April 2022) Parsia Abedini deposed that, having attended the local primary school of Turramurra North public school, and the local high school, Knox Grammar School, he was at that time studying Year 12, with the aim of gaining entry to Macquarie University, where he wished to study law. Parsia also deposed that all his ‘livelihood, friendships and connections’ belonged to the area in which the Turramurra house is located. He said that upon learning that the home may be forfeited, he became stressed and depressed, as a consequence of which he attended a psychologist, who diagnosed him to have an adjustment disorder.

The judge’s reasons

In detailed and comprehensive reasons, the judge outlined, at some length, the evidence given by the applicant, including cross-examination. Her Honour then made an assessment of the applicant’s credit. In doing so, the judge noted that counsel for the applicant had acknowledged that where the applicant’s account of events was challenged, then in the absence of corroborative evidence, the court would have ‘some hesitation’ in accepting her evidence.[4]
[4]Ibid [66].
Having had the opportunity to observe the applicant in the witness box, and having regard to the various inconsistencies in her affidavit evidence that her Honour had set out earlier in her reasons, the judge made the following finding about the applicant’s reliability as a witness:
I have no hesitation in finding that Mrs Abedini was an unreliable witness whose account of events in every respect (whether challenged or not) cannot be relied upon, unless corroborated by an independent documentary source or credible third party evidence.[5]
[5]Ibid [67]; see also [81].
In reaching that conclusion, the judge outlined, in some detail, four particular aspects of the evidence of the applicant, in which, the judge considered, the applicant either changed her evidence, or contradicted herself.[6] The judge noted that those four instances were ‘just four examples of [the applicant’s] persistent unreliability as a witness’.[7] In that respect, the judge stated:
The matters set out above are just four examples of Mrs Abedini’s persistent unreliability as a witness. Many more examples of inconsistencies and evasiveness have been set out in detail above. During her viva voce evidence in this case, particularly when she was under cross-examination, there are numerous examples of Mrs Abedini refusing to be candid and claiming to know nothing about particular matters, only later to admit to having additional bank accounts, assets or business interests. In some instances, Mrs Abedini only admitted these matters, when the documentary proof was put to her.[8]
[6]Ibid [68]–[77].
[7]Ibid [80].
[8]Ibid.
The judge noted that the applicant claimed to have the following relevant ‘interests’ in the Turramurra property:
(a)First, the applicant claimed to have become a joint tenant in the property when it was acquired in 2011. That proposition was based on the evidence of the applicant, that she had directly contributed her own funds to the purchase of the property when those funds were transferred to Abedini’s bank accounts in October and November 2008.
(b)The applicant claimed to be the sole beneficial owner of the property by reason of the agreement by Abedini to pay the dowry to her on their divorce in January 2014.
(c)The applicant claimed to be the owner of a half interest in the property by reason of the declaration made by Judge Street of the Federal Circuit Court in November 2020.
(d)The applicant claimed to have an interest, in the form of a right to occupy the property, that was created in favour of both herself and her children.[9]
[9]Ibid [91].
The judge considered whether the applicant had established that she had contributed any moneys to the purchase of the Turramurra property. Having examined the evidence relating to that matter, the judge concluded that she was unable to be satisfied, to the requisite standard, that the applicant had contributed any of her own money, either to the purchase of the property, or to the payment of the mortgage relating to it.[10]
[10]Ibid [106].
The judge next considered the question whether the applicant had an equitable interest in, or other right, power or privilege in relation to the property.
In respect of that issue, the judge noted that the respondent had accepted that, by virtue of his contribution of moneys to the purchase of the Turramurra property, a resulting trust in favour of Abedini was created on settlement of the contract of sale.[11]
[11]Ibid [107].
The judge noted the claim by the applicant that Isfhani held the Turramurra property on trust for both herself and Abedini in equal shares. In respect of that issue, the judge concluded that there was insufficient evidence upon which it could be concluded that, on the purchase of the property, there was a presumption of a resulting trust in favour of Abedini and the applicant equally. Rather, there was a presumption of a resulting trust in favour of Abedini by virtue of his financial contribution to the purchase of the property, and his ongoing payment of the mortgage and other outgoings associated with it.[12]
[12]Ibid [110].
The judge further concluded that there was not sufficient evidence upon which it could be concluded that another form of equitable interest (such as a constructive trust) was created in favour of the applicant upon purchase of the property. The judge noted, in that respect, that the applicant would need to establish the following matters (inter alia): the existence of a common intention between Isfhani and the applicant regarding the applicant’s beneficial ownership of the property; that the applicant acted to her detriment on the basis of that common intention; and that it would now be unconscionable to deny the applicant a beneficial interest in the property.[13]
[13]Ibid [111].
The judge noted that no evidence was led as to those matters, and that no argument had been made in favour of such a proposition. The judge further noted that there was no evidence that Abedini had conducted himself in a way that induced the applicant to act to her detriment in the reasonable belief that, by so acting, she would acquire a beneficial interest in the property.[14]
[14]Ibid [112].

The next issue considered by the judge was whether the applicant had received a relevant interest in the property by reason of her divorce. Having considered the evidence on that matter in some detail, the judge concluded that she was unable to be satisfied, to the requisite standard, that the applicant did acquire any interest in the Turramurra property as a result of her divorce.[15]
[15]Ibid [127].
The judge next considered the issue whether the applicant had received any interest in the property by reason of her dealings with the Trustee in bankruptcy, and, in particular, by virtue of the Federal Circuit Court orders.
The judge noted that that proceeding did not involve any substantive adjudication by the Federal Circuit Court on the issue whether the applicant had an interest in the Turramurra property. Accordingly, the settlement of the Federal Court proceeding and the assumptions underlying the settlement, could not bind the court.[16]
[16]Ibid [163]–[165].
The judge rejected the proposition that the respondent was estopped from denying the effect of the deed of settlement and of the orders made by the Federal Circuit Court. There was no evidence that the respondent had, in any way, represented to the applicant that her dealings with the Trustee would result in her being released from the obligation of demonstrating to the County Court that her interests, if any, in the Turramurra property should be excluded from the operation of the restraining order. Further, there was no evidence that the applicant had acted to her detriment in settling the bankruptcy proceedings based on any identifiable representation by the respondent. Accordingly, the judge concluded that the estoppel, relied on by the applicant, had not been established.[17]
[17]Ibid [167]–[170].
Finally, in this respect, the judge considered the question whether the applicant had an interest in the property as a tenant or by reason of a right to occupy. In respect of that question, the dictionary to the Act defines ‘interest’ to include (inter alia) a ‘right, power or privilege in connection with the property or thing’. The judge accepted the submission, made on behalf of the applicant, which was accepted by the respondent, that she had a relevant interest in the form of a right to occupy the Turramurra property. However, that interest was derived directly or indirectly from Abedini’s purchase of the property.[18]
[18]Ibid [176].
The next relevant section of the judge’s reasons comprised an analysis of the financial positions of the applicant and of Abedini. Relevantly, the judge noted that the applicant had been unable to provide any cogent explanation for disproportionately large amounts of funds that had flowed through relevant accounts during the period in question. The judge accepted the accuracy of the analysis, made by Mr Hicks, as to the financial position of both the applicant and Abedini in the period between July 2009 and November 2014, including Mr Hicks’ conclusion as to the extent of unexplained funds that had passed through the relevant accounts at that time.[19]
[19]Ibid [205].
The next issue, considered by the judge, was whether the applicant had established, to the requisite standard, that the Turramurra property was neither the proceeds, or an instrument, of particular offences, including the offence of money laundering, namely, dealing with property reasonably suspected of being the proceeds of crime, under s 400.9 of the Criminal Code.
In determining that question, the judge considered that the evidence established that both Abedini and the applicant had ‘dealt’ with property, in the sense that they had received, possessed and disposed of funds, which passed through various bank accounts under their control, they had imported money into and exported money from Australia during the relevant period, and they had engaged in banking transactions, including for the purposes of purchasing the Turramurra property using those funds. At the time of each instance of such ‘dealing’, the value of the Turramurra property was well in excess of the prescribed amount of $100,000.[20] The judge was satisfied that the amount of money, constituting unexplained funds, passing through the accounts of Abedini and the applicant, was grossly out of proportion to their income and expenses during the relevant period. Accordingly, her Honour was satisfied, pursuant to s 400.9(1)(b) of the Criminal Code, that it was reasonable to suspect that the money, used to purchase the Turramurra property, was the proceeds of crime.[21]
[20]Ibid [235]–[236].
[21]Ibid [237].
Based on her findings concerning the applicant’s unreliability as a witness, the judge did not accept the applicant’s assertion that she had no reasonable grounds to suspect that the money was derived or realised, directly or indirectly, from some form of unlawful activity. Consequently, the judge concluded, the applicant had failed to prove, to the requisite standard, the matters specified in s 400.9(5) of the Criminal Code.[22]
[22]Ibid [239].
Accordingly, the judge held that she could not be satisfied that any interest the applicant had in the Turramurra property was neither the proceeds of, nor the instrument of, an offence under s 400.9 of the Criminal Code. Accordingly, the judge concluded that the applicant’s application for exclusion from restraining orders, pursuant to s 18 and s 19 of the Act, must be dismissed.[23]
[23]Ibid [243].
The judge next considered the application by the applicant, under s 39 of the Act, for ancillary orders to vary the restraining order. In that respect, the applicant made an application for an order pursuant to that provision, that she be permitted to refinance the Turramurra property for the purpose of replacing the existing mortgage and paying the Trustee the sum of $405,000 which, the applicant contended, the Trustee had agreed was the value of Abedini’s interest in the property. The judge refused that application. The applicant did not have any proprietary interest in the property. Thus, it would not be appropriate to make an order permitting her to ‘deal’ with the property in which she had no ownership. There was no evidence that the applicant would, in any event, be in a position to service a mortgage on the property. Further, the orders, sought by the applicant, would undermine the effect of the restraining order by diluting the value of the property.[24]
[24]Ibid [252].
The judge rejected the application by the applicant for exclusion from forfeiture under s 73 of the Act, on the ground that the applicant had not established that the Turramurra property was neither the proceeds of unlawful activity, nor an instrument of any serious offence.[25]
[25]Ibid [267].
Next, the judge rejected the applicant’s application for compensation under s 77 of the Act. Her Honour could not be satisfied that any proportion of the value of her interest in the property was not derived or realised from the commission of an offence.[26]
[26]Ibid [272].
Finally, the judge considered the application, made by the applicant, for relief from hardship pursuant to s 72 of the Act.
In considering that question, the judge referred to the judgment of Kirby P in R v Lake,[27] the judgment of Hargrave J in Director of Public Prosecutions v Ali (No 2)[28] and the judgment of Judge Saccardo of the County Court in Commissioner of the Australian Federal Police v Goldstein ( a pseudonym).[29] The judge noted that the requirement of ‘hardship’ in s 72 is not prefaced by the adjective ‘undue’, which appears in other legislation. Nevertheless, the judge concluded that, if relief were granted in respect of hardship that would ordinarily flow from the operation of the Act, such a construction would frustrate the evident purpose of the legislation.[30]
[27](1989) 44 A Crim R 63 (‘Lake’).
[28][2010] VSC 503 (‘Ali’).
[29][2015] VCC 1425 (‘Goldstein’).
[30]Reasons, [284]–[287].
The judge further considered that, if she were wrong in that conclusion, she would make the following observations about the evidence before the court:
(a)In view of her findings concerning the credibility of the applicant, and in the absence of independent objective evidence corroborating her evidence, the judge was unable to rely on the uncorroborated assertion in the applicant’s affidavit that if the Turramurra property was subject of a forfeiture order, she and/or her children would become homeless and she would lose her business.
(b)In that respect, the judge noted that Abedini did not give evidence about the effect of making a forfeiture order in the case, and accordingly it was open to conclude that any evidence that he might have given would not have assisted the application.
(c)In addition, there was no evidence upon which the judge could be satisfied that either Paris or Parsia would become homeless or suffer financial detriment.[31]
[31]Ibid [288].
For those reasons, the judge rejected each of the applications, made on behalf of the applicant, and granted the application by the respondent for forfeiture of the Turramurra property under s 47 of the Act.

Ground 1 — submissions

Ground 1 contends that the judge erred in determining that the applicant did not have an interest in the Turramurra property, other than as a tenant of the property.
In particular, the applicant submitted that the judge erred in failing to conclude that the applicant had an equitable interest in the property arising from a constructive trust. It was not submitted that the constructive trust arose as the result of some common intention between the applicant and Abedini. Rather, the applicant submitted that the evidence established that she has an equitable interest arising from a remedial constructive trust of the kind discussed by the High Court in Muschinski v Dodds[32] and Baumgartner v Baumgartner.[33] Counsel placed particular reliance on the decision of the New South Wales Court of Appeal in NSW Trustee and Guardian v Togias,[34] the facts of which, it was submitted, were ‘on all fours’ with those in the instant case. In that respect, counsel submitted that the judge applied the wrong test for the existence of a constructive trust, by concluding that it was necessary to find a ‘common intention’ between Abedini and the applicant, which, it was submitted, is not necessary in order to found a remedial constructive trust.
[32](1985) 160 CLR 583 (‘Muschinski’).
[33](1987) 164 CLR 137 (‘Baumgartner’).
[34](2022) 110 NSWLR 86 (‘Togias’).
Counsel noted that although the applicant did not contribute directly to the purchase of the Turramurra property, she had contributed indirectly to the acquisition of it and to the maintenance of the family’s businesses and the marital asset pool. Further, the applicant had played the role of the primary carer for Abedini’s two children, and, by doing so, she had relieved Abedini of the potential financial burden of doing so. The applicant had been employed in a number of different occupations, and had also worked, without remuneration, in the Pizza Haven franchises and the restaurant, which Abedini had conducted with her. Counsel submitted that the Turramurra property had been purchased for the purpose of a joint endeavour between Abedini and the applicant, that had enhanced the Abedini family’s wellbeing. In those circumstances, it was submitted, the judge erred in failing to conclude that the applicant had an interest in the Turramurra property, constituted by an interest under a constructive trust.
Counsel for the applicant accepted that, on the hearing before the primary judge, the applicant did not, prior to final address, seek to rely on an interest under a constructive trust. However, counsel noted, there were no pleadings in the proceeding before the judge, and the applicant’s affidavits contained evidence of all the requisite elements of an equitable interest derived from a remedial constructive trust. Counsel acknowledged that, if that claim had been raised earlier in the trial, the respondent might have conducted cross-examination directed specifically to that claim. However, it was submitted, that consideration should not preclude the applicant from obtaining equitable relief, and, if there is any prejudice to the respondent as a consequence, that could be cured by a ‘remitter’ to the County Court.
Counsel submitted that if the judge made factual findings that preclude a conclusion as to the existence of a constructive trust, this Court should ‘overturn’ them on the basis that they are erroneous or glaringly improbable. In particular, it was submitted that it was not open to her Honour to find that the applicant knew that Abedini was engaging in illegal conduct in his businesses.
Counsel further submitted that the negative findings, which the judge made about the applicant’s credit, do not compel a finding that she was aware that Abedini was engaged in serious criminal activity. The question was not whether the property was the proceeds or an instrument of serious criminal offences, but, rather, whether the applicant’s equitable interest, by way of a constructive trust, was the proceeds or an instrument of those offences. Counsel submitted that there was no evidence that the applicant had reasonable grounds for suspecting that her equitable interest was derived or realised from any unlawful activity.
For those reasons it was submitted that the judge erred in failing to conclude that the applicant had an interest in the Turramurra property arising from a remedial constructive trust.
In response, counsel for the respondent commenced by submitting that at no time did the applicant make a claim before the primary judge based on a constructive trust. In particular, no such claim was asserted before the commencement of the trial, during the trial, or in the first written case filed in this Court. Rather, the first occasion on which such a claim has been propounded was the filing of the amended written case on this application.
Counsel noted that, at trial, the basis of the applicant’s claimed interest in the Turramurra property evolved over time. First, the applicant claimed a joint beneficial ownership of the property with Abedini on the basis of evidence of her own financial contribution to the purchase of it. After Abedini’s bankruptcy, the applicant claimed to be the beneficial owner of the entire property on the basis that she had received it as a dowry in a cultural divorce from her husband. Subsequently, the applicant relied on an interest, which she contended arose in her favour in the course of settling the bankruptcy proceedings in the Federal Circuit Court. At no time did the applicant invoke a remedial constructive trust of the kind defined by the High Court in Baumgartner to support a claim for an interest in the property arising from any non-monetary contribution made by her to her relationship with Abedini.
Counsel noted that the judge determined that the applicant had not discharged the onus to prove any of the interests that she claimed in the property. In particular, the judge was not satisfied that the applicant had contributed her own money to the purchase of the property, or to subsequent mortgage repayments. Further, there was no evidence of any agreement between the applicant and Abedini that moneys, that had been transferred by her from Iran in 2008, were used for the purchase of the property or any other property. Counsel also noted that the judge did not accept the applicant’s contention that, by virtue of her marriage, any purchase of property by Abedini was a purchase on behalf of both of them. Further, the judge was not satisfied that the applicant had acquired any interest in the property as a result of any Islamic divorce ceremony with Abedini. The judge also concluded that the Federal Circuit Court orders did not estop the respondent from denying that the applicant held a 50% interest in the Turramurra property. Thus, counsel noted, the respondent had successfully resisted each of the various claims that the applicant had asserted in the trial of the proceeding.
Counsel further submitted that the evidence, that was adduced at the trial, would not permit any finding of a constructive trust in favour of the applicant. Counsel submitted that the present case may be distinguished from the decision of the New South Wales Court of Appeal in Togias. In the present case, the applicant did not claim that she was entitled to a beneficial interest on the basis of a common intention, and (as the judge noted) no evidence was adduced as to the existence of such common intention. Nor was a claim made on the basis of a relevant joint venture or other arrangement in which the parties pooled their resources in a manner that would be an appropriate foundation for a finding of a remedial constructive trust of the kind discussed by the High Court in Baumgartner. Further, there was no evidence, or cross-examination, concerning the value of any non-monetary relevant contributions made by the applicant to her marriage. In that respect, counsel, by reference to a number of authorities, submitted that, in order to establish an interest under a remedial constructive trust, the applicant must demonstrate more than that she was in a marital relationship with Abedini in the context of which they lived in the same home and raised children together.[35]
[35]Togias (2022) 110 NSWLR 86, 100–108 (Mitchelmore JA); Green v Green (1989) 17 NSWLR 343, 353–4 (Gleeson CJ) (‘Green’); Cressy v Johnson [2009] VSC 52, [183]–[199] (Kaye J).
Counsel submitted that the applicant now asks this Court to rely on unsupported evidence on matters that would have been challenged if the applicant had relied on a case on the basis of a constructive trust. Counsel noted that none of the assertions in the applicant’s affidavits, that could be relevant to such a claim, were supported by any corroborating evidence. The claim that the applicant now makes for a beneficial interest in the Turramurra property must be considered in light of the trial judge’s adverse findings concerning the credit of the applicant, namely, that she was an unreliable witness whose account of events, ‘in every respect’, could not be relied on unless it was corroborated by independent evidence.[36]
[36]Reasons, [67].
Finally, counsel submitted that, in any event, a reformulation of the applicant’s interest in the property, as a beneficial interest pursuant to a constructive trust, would not assist the applicant, as that interest would still be liable to forfeiture as the proceeds or an instrument of relevant offending.
In that respect, counsel noted that the judge found that any interest that the applicant had in the Turramurra property (as an occupier) was derived directly or indirectly from Abedini’s purchase of that property.[37] The operation of a constructive trust, of the kind now relied on by the applicant, is confined to circumstances in which the retention or assertion by the other party to the relevant relationship, to the detriment of the applicant, would be unconscionable. In the present case, the legal owner of the property (Isfhani) had no arrangement with the applicant. Any constructive trust alleged by the applicant would necessarily be derived from Abedini’s equitable interest, which itself was the proceeds or instrument of relevant offending.
[37]Reasons, [176].
Counsel noted that the applicant could not satisfy the court that she had no reasonable grounds for suspecting that the moneys, with which the property was purchased, or the property itself, was derived or realised from some form of unlawful activity. In that respect, the judge rejected the applicant’s assertion that she had no reasonable grounds for suspecting that the relevant money or property was derived or realised from some form of unlawful activity.[38]
[38]Reasons, [239].

For those reasons, counsel submitted that ground 1 of the application must fail.

Ground 1 — analysis and conclusion

The starting point, for considering ground 1, is that it is quite clear that at no time in the hearing in the County Court did the applicant seek to rely on an interest arising from a constructive trust, whether based on a common intention, or in the form of a remedial constructive trust.
On this application, it was accepted by the applicant that, at the trial of the proceeding, counsel did not, prior to final address, seek to assert any such claim. That concession is correct. No such claim was propounded either in the outline of submissions, filed by the applicant on 29 April 2022, or in the updated outline of submissions filed on 24 May 2022, the day immediately preceding the hearing of oral submissions.
On the present application, counsel for the applicant contended that, in the course of oral submissions, counsel then acting for the applicant did advert to a claim based on an interest arising from a constructive trust.
The transcript of oral submissions before the judge does not support that contention.
In the course of oral submissions, counsel then acting for the applicant referred to the decision of the New South Wales Court of Appeal in Green as authority for the proposition that an interest in a property may arise resulting from an ‘indirect financial contribution’ to it. The judge intervened and noted that, in order to create a constructive trust, there would need to be evidence of an agreement between the applicant and Abedini, and there was no such evidence adduced in the case.
We interpolate that it is thus apparent that it was the judge who first raised the concept of a constructive trust. In further discussion with the judge, counsel for the applicant agreed that there was no evidence of a constructive trust, but he sought to rely on a resulting trust and contended that there did not need to be any agreement for such a trust. At that point, counsel then acting for the respondent intervened, and took specific objection to the ‘late raising of any question of constructive trust’. In response, counsel for the applicant conceded that he had ‘never raised a constructive trust’. The judge intervened, observing (fairly) that it was she who had raised the issue. Counsel for the applicant then accepted that the submission that the applicant was putting forward was based on a resulting trust.
It is thus quite clear that at no time in this proceeding, at first instance, did the applicant seek to rely on an interest derived from a constructive trust. No such claim was asserted, and the applicant did not, at first instance, seek to contend that such an interest would be or had been established by the evidence.
It is a fundamental principle that a party is bound by the conduct of its case at first instance, so that only in the ‘most exceptional circumstances’ might a party raise a new argument, or seek to rely on a new ground, which was not asserted at first instance.[39]
[39]University of Wollongong v Metwally(No 2) (1985) 59 ALJR 481, 482–3 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) (‘Metwally (No 2)’); Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438 (Latham CJ, Williams and Fullagar JJ); Coulton & Ors v Holcombe & Ors (1986) 162 CLR 1, 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ) (‘Coulton’).
In Whisprun Pty Ltd v Dixon,[40] Gleeson CJ, McHugh and Gummow JJ stated that principle in the following terms:
It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial.[41] Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action.[42] Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.[43]
[40](2003) 77 ALJR 1598, 1608 [51] (‘Whisprun’).
[41]Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71; Coulton, 8-9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; 179 ALR 321 at 330-331; Water Board v Moustakas (1988) 180 CLR 491 at 496-497; cf R v Birks (1990) 19 NSWLR 677 at 683-685.
[42]Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645-646.
[43]Whisprun (2003) 77 ALJR 1598 1608 [51].
It is quite clear that the present case is not one in which it could be properly concluded that the claim, that is now sought to be asserted, relating to an interest arising from a constructive trust, could constitute an exception to the principles stated by the High Court in those authorities. On the contrary, it is quite evident that if the applicant were permitted to rely on such an interest at this stage of the proceeding, such a process would not only be unfair to the respondent, but it would also significantly undermine the public interest in the finality of judicial proceedings at first instance.
Although at trial the applicant disavowed any reliance on an interest arising from a constructive trust based on a common intention, the judge noted that, in any event, there was insufficient evidence upon which it could be concluded that such an equitable interest was created in favour of the applicant.[44] The judge expressly noted that no evidence was led as to the basic components of such an interest, and that the applicant had not presented any argument in support of it.[45]
[44]Reasons, [111].
[45]Ibid [112].
It is for that reason that the applicant now seeks to rely, not on a common interest constructive trust, but on a remedial constructive trust, based on the principles outlined by the High Court in Muschinski and Baumgartner.
It is important to bear in mind that, in those cases, the court carefully defined the fundamental elements which must be established in order to found an interest based on such a constructive trust. In his seminal judgment in Muschinski, Deane J noted that the form of constructive trust under consideration operated on a legal entitlement to preclude a person from asserting a legal right in circumstances where that assertion would constitute unconscionable conduct. His Honour defined those circumstances in the following terms:
Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do ...[46]
[46]Muschinski (1985) 160 CLR 583, 620.
His Honour then noted that that principle does not leave the court ‘at large’ to indulge in subjective notions of fairness. Specifically, his Honour stated:
In assessing whether or to what extent such an assertion or retention of legal entitlement by Mr. Dodds would constitute unconscionable conduct, one is not left at large to indulge random notions of what is fair and just as a matter of abstract morality. Notions of what is fair and just are relevant but only in the confined context of determining whether conduct should, by reference to legitimate processes of legal reasoning, be characterized as unconscionable for the purposes of a specific principle of equity whose rationale and operation is to prevent wrongful and undue advantage being taken by one party of a benefit derived at the expense of the other party in the special circumstances of the unforeseen and premature collapse of a joint relationship or endeavour.[47]
[47]Ibid 621.
Those principles were accepted and applied by the High Court in its subsequent decision in Baumgartner. In their joint judgment, Mason CJ, Wilson and Deane JJ, applying those principles, concluded:
The case is accordingly one in which the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant's assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent.[48]
[48]Baumgartner (1987) 164 CLR 137 149.
It was based on those principles that the New South Wales Court of Appeal, in Togias, determined that, on the facts of that case, the respondent was entitled to an equitable interest arising from a remedial constructive trust in one of the two properties under consideration. Relevantly, that conclusion was based on the consideration of quite detailed evidence, that had been contested at trial, and on which the primary judge had made specific findings. Notwithstanding the submissions made on behalf of the applicant, the facts in Togias, and the issues agitated in it at trial, were far removed from those in the present case.
On the present application, counsel placed specific reliance on the third affidavit of the applicant, deposed on 25 July 2021. That affidavit was principally directed to the applicant’s claim that she had made a direct or indirect financial contribution to the purchase of the Turramurra property. Some aspects of the affidavit could also have been relevant to the issue of the existence of a remedial constructive trust, if the applicant had sought to assert any such claim at first instance. However, it is, first, important to bear in mind that that aspect of the applicant’s claim, as now asserted on this application, was based solely on the applicant’s evidence. In that respect, it is important to note the terms in which the judge specifically made a finding about the reliability of the applicant’s evidence at trial. Those findings were expressed in the following terms:
Having had the opportunity to observe Mrs Abedini in the witness box and having regard to the various inconsistencies in her affidavit evidence which are set out above, I have no hesitation in finding that Mrs Abedini was an unreliable witness whose account of events in every respect (whether challenged or not), cannot be relied upon, unless corroborated by an independent documentary source or credible third-party evidence.[49]
[49]Reasons, [67] (emphasis added).
In the course of submissions, counsel for the applicant acknowledged that counsel for the respondent, at trial, did not specifically direct cross-examination to the aspects of the affidavit of the applicant on which reliance is now placed in order to establish a remedial constructive trust. Counsel contended that that issue may be appropriately redressed by ‘remitting’ the matter to the trial judge for further cross-examination of the applicant.
That process would be inappropriate for two reasons.
First, and foremost, it would be contrary to the principles, outlined by the High Court, and to which we have referred, concerning the finality of the proceedings at first instance, and the stringent proscription of the ability of any party to raise fresh points on appeal, which were not agitated at trial.
Secondly, the proposed course would be quite unfair to the respondent. If the applicant had sought, at trial, to rely on a remedial constructive trust, the facts relied on in support of that claim would not only have been subject to cross-examination, but would also have been necessarily affected by the judge’s assessment and determination of the applicant’s reliability as a witness. As noted, her Honour specifically determined that the applicant was such an unreliable witness that her account of events ‘in every respect’ (whether challenged or not) could not be relied upon. That conclusion, by the judge, would necessarily have affected the judge’s assessment of a claim based on a remedial constructive trust, had such a claim been asserted at trial.
In those circumstances, it would be entirely unfair to the respondent to permit the applicant to have, as it were, a ‘second bite’ at the proceeding by remitting the matter for further evidence and determination of the new claim, now sought to be relied on, by way of a remedial constructive trust.
As a result, the applicant should not be permitted to assert and rely on a remedial constructive trust, based on the principles stated in Muschinski and Baumgartner, which was not at all asserted, in any form, in the primary proceeding in this case.
It follows that ground 1 of the application for leave to appeal must fail.

Ground 2 — submissions

In support of ground 2, counsel for the applicant submitted that in order to establish the requisite hardship for the purpose of s 72 of the Act, it is not necessary that the hardship relied on be ‘undue’.
In that respect, counsel relied on the decision of Hargrave J (as his Honour then was) in Ali, in which his Honour held that the loss of a family home would cause real hardship to his wife and to his children, that was of sufficient severity to satisfy the requirement under s 72. Counsel submitted that the decision in Ali is analogous to the facts in the present case. Forfeiture of the Turramurra property will have the effect that the applicant and her children will lose the family home, in which they have lived since 2011, and in which the children have been raised. Counsel submitted that, as a consequence, Paris would be particularly affected because of her psychological condition. Both children had attended the local primary school. The applicant is now unemployed and is approaching retirement age. Abedini himself is bankrupt. Those circumstances, it was submitted, constitute the requisite hardship that would ensue to Paris and Parsia if the Turramurra property were forfeited.
Counsel submitted that the judge erred by misapplying the test for hardship that was articulated by the New South Wales Court of Appeal in Lake, by placing undue weight on the purposes of the Act, and in concluding that hardship, which is less than exceptional, should not be relieved under s 72. Further, it was submitted, the judge erroneously disregarded the unchallenged evidence of Paris and Parsia in concluding that there was no evidence to support the contention that they would, in fact, be made homeless.[50]
[50]Reasons, [288].
Finally, counsel submitted that the judge erred in applying the principles outlined by his Honour Judge Saccardo in Goldstein as authority for the proposition that s 72 only applies to property, which is an instrument of criminal activity, and that it does not apply to property, which is or is not purchased using the proceeds of criminal activity.
Accordingly, it was submitted that this Court should set aside the orders by the judge, and remit the issue, concerning hardship, for re-determination.
In response, counsel for the respondent submitted that the judge did not mis-state the applicable test to be applied under s 72 of the Act.
In particular, counsel noted that the judge had proper regard to the objects specified in s 5 of the Act, which provide for deprivation of property that is the proceeds of crime, and for punishment and deterrence by operation of the confiscation scheme established under the Act. Thus, counsel submitted, the Act necessarily causes some hardship in achieving its objects. Counsel submitted that if s 72 were applied to relieve hardship in the present case, that would frustrate the purpose of the exceptional provisions of the Act. Accordingly, more than ordinary hardship must be established in order that s 72 apply to a particular case. Thus, counsel submitted, the judge was correct to apply the principles, stated by the New South Wales Court of Appeal in Lake.
Counsel further contended that the decision of Hargrave J in Ali may be distinguished. In particular, in that case, the applicant’s children were very young, and the judge in that case accepted the evidence that the applicant’s family would have difficulty paying for rental accommodation if the forfeiture order in the case was implemented.
Counsel for the respondent further submitted that the reliance by the applicant on her affidavit evidence, to support the hardship claim, fails to take into account the judge’s findings as to her lack of credibility. In particular, based on those findings, the judge did not accept the nature and level of hardship asserted by the applicant in her affidavit. Further, counsel noted that the affidavit evidence of the applicant’s children, Paris and Parsia, went no further than setting out their apprehensions as to difficulties that might flow from an apprehended loss of their home. It was submitted that those apprehensions did not constitute relevant evidence of likely hardship.
Finally, counsel submitted that, in any event, the applicant had not adduced any evidence to establish the requisite ‘specified amount’ that would alleviate any hardship which might have been established on behalf of the two children, as required by s 72(1)(b)(ii) of the Act.

Ground 2 — analysis and conclusion

The competing submissions under ground 2 raise two principal issues, namely:
(1)whether the judge applied the correct test in determining whether the applicant established the requisite ‘hardship’ under s 72(1)(b)(i) of the Act;
(2)whether the judge erred in concluding that the applicant had not established that hardship.
In considering the first issue, the judge referred to the discussion of the meaning of ‘hardship’ in Lake, Ali and Goldstein. Her Honour rejected the submission made on behalf of the applicant that ‘ordinary hardship flowing from the usual operation of the Act’ would be enough for the purposes of s 72, as that proposition would frustrate the legislative purpose of the Act.[51]
[51]Reasons, [283]–[284].
In its ordinary usage, the noun ‘hardship’ properly connotes a degree of deprivation that is more onerous than inconvenience arising from the vicissitudes in daily life. Taken literally, the concept of ‘hardship’ constitutes a condition or set of circumstances that bears hard on a person, and that involves a material degree of privation.[52]
[52]See, for example, Shorter Oxford Dictionary.
In the context of the legislation under consideration in this case, it is apparent that that understanding of the term ‘hardship’ must be given appropriate effect.
The principal objects of the Act, that are specified in s 5, include the purpose of depriving persons of the proceeds of offences, and of benefits derived from those offences, and, in that way, punishing and deterring persons from breaching the laws of the Commonwealth.[53] As the judge correctly noted, those purposes would be frustrated, and the legislation would be deprived of appropriate effect, if the term ‘hardship’, specified in s 72, could be constituted by the kind of inconvenience and disruption, which would inevitably be incurred through the process of a person being compulsorily deprived of their home under the Act. In any such case, it would be quite understandable, and common, for a person whose home had been compulsorily forfeited to undergo a material degree of discomfort, removing that person and their family from their neighbourhood, from the home to which they have been attached, and from the locality in which they have resided.
[53]Proceeds of Crimes Act 2002 s 5(a), (c).

Taking into account the ordinary meaning of ‘hardship’, which we have discussed, and the statutory context in which the term is used in s 72 of the Act, that kind of consequence would not, ordinarily, and without more, be sufficient to constitute the requisite ‘hardship’ specified in that provision. It follows that, contrary to the submissions made on behalf of the applicant, the judge did not adopt and apply an incorrect test in determining whether the applicant had established that Paris and Parsia would suffer the requisite hardship if the Turramurra property became the subject of a forfeiture order under the Act.
The next question, therefore, is whether the judge erred in determining that the applicant had not demonstrated that she, or her children, or both, would suffer such hardship as a result of the forfeiture order affecting the Turramurra property.
The difficulty confronting the applicant, in respect of that proposition, arises from the findings, which the judge made, concerning the credibility of the applicant as a witness. As we have noted earlier, the judge concluded as follows:
Given those findings, in the absence of independent and objective evidence of impecuniosity, and taking into account the unchallenged evidence of the vast sums of money which have flowed through both Mr and Mrs Abedini’s bank accounts in the period 2009–2014, I am unable to rely on the uncorroborated assertion in Mrs Abedini’s affidavit that if the Turramurra property becomes the subject of a forfeiture order, she and/or her children will become homeless, or that she will lose her business.[54]
[54]Reasons, [288(a)].
The judge thus concluded that there was no evidence on which she could be satisfied, to the requisite standard, that if the property became the subject of a forfeiture order, either Paris or Parsia would become homeless or suffer any financial detriment.[55]
[55]Ibid [288(c)].
Faced with that finding, counsel for the applicant submitted that, notwithstanding that Paris and Parsia may not become homeless, nevertheless, if a forfeiture order were made, they would suffer significant disruption in their daily lives, which would be sufficient to constitute hardship. In that regard, counsel relied on the decision of Hargrave J in Ali,[56] the facts of which, he submitted, were closely analogous with the circumstances of the present case.
[56][2010] VSC 503.
It is, of course, trite that each case must depend on its own individual facts. However, in Ali, it must be noted that the family, that was affected by the potential forfeiture order, comprised four children, aged between three years and twelve years. Hargrave J accepted that if a forfeiture order was made, the applicant and her husband would not be able to afford to purchase another home. While Hargrave J had some reservations about that evidence, he did accept that it was unlikely that the applicant would be able to work for three or four years, due to the age of her two pre-school children. Based on that evidence, the judge accepted that the applicant’s family in that case would have ‘substantial difficulty’ finding funds to pay for rental accommodation if the forfeiture order was effectuated.[57] It is in those circumstances that Hargrave J concluded that the requisite hardship had been established.
[57]Ali, [128].
By contrast, in the present case, Paris and Parsia were respectively 18 years and 17 years of age at the time of the hearing. The judge was not satisfied that if the forfeiture order were made, the family would be rendered homeless. The contrast between the facts in this case, and those in Ali, is instructive, because it demonstrates the degree to which the circumstances in this case necessarily fall short of those which would be sufficient to constitute hardship for the purposes of s 72 of the Act.
For those reasons, the judge was correct in determining that the applicant had not established the requisite hardship under s 72. Further, as counsel for the respondent has noted, the applicant also failed to prove, by appropriate evidence, the ‘specified amount’ that would relieve the alleged hardship relied upon, which was a prerequisite to the applicant’s claim for relief under s 72.
It follows from the foregoing that the judge was correct to determine that the applicant had not established hardship for the purpose of s 72. It follows that ground 2 of the application for leave to appeal must fail.

Ground 3

Ground 3 contends that the applicant’s application for relief from hardship (on behalf of her children) should be redetermined in light of fresh evidence that Paris suffers Autism Spectrum Disorder, which was present, but not fully understood or diagnosed, at the time of trial.
In support of ground 3, the applicant, by an application made 21 August 2024, sought leave to file and serve further evidence that Paris has been diagnosed to suffer Autism Spectrum Disorder. That further evidence consists of reports of three practitioners, namely:
(a)a report of Ms Selina Mujalli, a speech pathologist, dated 17 August 2010;
(b)a report of Ms Taylor Moore, clinical psychologist, dated 23 May 2024;
(c)report of Dr Travis Wearne, consultant clinical psychologist, dated 18 July 2024.
The application is supported by an affidavit by the applicant’s legal practitioner, Mr Sayed Khedr, who has deposed that he was instructed as follows:
(a)At the time of the County Court proceeding, Paris’s autism was present but not fully understood or diagnosed.
(b)The Abedini family have, for many years, tried not to focus on or draw attention to Paris’s condition for cultural reasons.
(c)Obtaining an autism diagnosis would be difficult and painful for Paris because it would bring the issue into the light of day.
(d)The applicant did not know that she could raise an issue confidentially in the proceeding in the County Court.
(e)The applicant did not know that Paris’s autism was relevant to any application for relief.
In her report dated 17 August 2010, Ms Mujalli expressed the view that the applicant then presented ‘… as a happy and friendly young girl with a severe receptive and expressive language delay’.
In her report dated 23 May 2024, Ms Moore (the clinical psychologist) concluded that Paris meets the criteria for DSM-5-TR diagnosis of Autism Spectrum Disorder, which is a neurodevelopmental condition that is life-long. Based on that assessment, Ms Moore considered that the applicant would require substantial support in terms of social communication, and very substantial support in terms of her repetitive behaviours. Ms Moore was also of the view that the applicant might benefit from additional support for progressing her career, and that there were options of support services available that may assist her pursue her tertiary education.
In his report dated 18 July 2024, Dr Wearne noted that Paris’s Autism Spectrum Disorder has had the effect that Paris has had social difficulties throughout her life, and that she requires ongoing support and management of her social and communication difficulties. Dr Wearne also noted that Paris’s autism appears to have affected her functional capacity, and that she has deficits across areas of communication, daily living and socialisation. Dr Wearne considered that Paris has the cognitive and intellectual capacity to study and work. She has the ability to learn and retain information over time, and she has the reasoning and higher order thinking skills to actively engage and manage the demands of employment and study. However, her social communication difficulties may hinder her engagement in study and any employment opportunities.

Ground 3 — submissions

Counsel for the applicant submitted that the applicant should be permitted to rely on the reports of Ms Mujalli, Ms Moore and Dr Wearne as ‘fresh evidence’. Counsel submitted that although the applicant was aware, at the time of the hearing, that Paris probably suffered autism, no such definitive diagnosis of her condition had been made until Ms Moore examined Paris in May 2024. Counsel referred to the explanations given by Mr Khedr for the lack of any definitive diagnosis of Paris’ condition until recently. In particular, Paris’ family did not wish to draw attention to her autism for cultural reasons, and it would cause difficulty to Paris to bring the issue ‘into the light of day’. Further, counsel relied on the explanation, by Mr Khedr, that the applicant did not know that she could raise the issue of Paris’ autism confidentially in the County Court, and that that issue was relevant for any application of hardship.
In submitting that the evidence is admissible, counsel relied on the decision in this Court in R v WEF,[58] in which the Court outlined the circumstances in which fresh evidence may be received in a criminal appeal on an application for leave to appeal against sentence. Counsel submitted that the same principles should apply to the present case.
[58][1998] 2 VR 385.
Counsel submitted that the fresh evidence, if admitted, would make a material difference to the determination of the hardship application under s 72 of the Act. It was submitted that the admission of the evidence, as fresh evidence, would not occasion any prejudice to the respondent, and, if necessary, any hardship application could be remitted to the Trial Division for determination.
In response, counsel for the respondent noted that it is well-established that, in order to be granted leave to adduce fresh evidence on appeal, the applicant must establish, first, that the evidence could not have been discovered by reasonable diligence at the time of the original trial, and, secondly, that it is reasonably clear that if the evidence had been available at the trial, an opposite result would have been achieved.
Counsel submitted that the present application to adduce fresh evidence does not satisfy either of those two requirements.
First, counsel noted that the explanation, why the evidence was not available and adduced at the first trial, was contained in the affidavit of Mr Khedr, which constitutes untested hearsay assertions. It was submitted that there is no evidence that Paris’ Autism Spectrum Disorder could not have been discovered in time for use at the trial. In that respect, Paris had, in fact, been subject to psychiatric treatment for seven years before the trial, and, in 2010, Ms Mujalli had found that the Childhood Autism Rating Scale indicated that Paris then had characteristics indicative of mild to moderate Autism Spectrum Disorder. Counsel further noted that, in the applicant’s affidavit on the issue of hardship in the proceeding before the County Court, she had deposed that both of her children had ‘faced numerous mental illnesses’ as a result of fear from losing their family home, and that Paris had seen several psychologists and a psychiatrist.
Counsel further submitted that, in any event, the evidence now sought to be relied on does not satisfy the second requirement for the admissibility of fresh evidence, namely, that it is reasonably clear that if the evidence had been available at the trial and had been adduced, a different result would have been produced.
In support of that submission, counsel noted, first, that the letter of instruction by the applicant’s solicitor to both Ms Moore and Dr Wearne contained material, which suggested and encouraged a diagnosis of autism. Counsel further noted that the report of Dr Moore was based, to a significant measure, on a ‘Vineland Adaptive Behaviour Scales’ measure, that was completed by the applicant herself. Counsel referred to a number of parts of the report and analysis by Ms Moore that were expressly based on the information provided to her by the applicant. Thus, it was submitted that it is evident that Ms Moore’s ultimate assessment of Paris was substantially based on input by the applicant.
Counsel also noted a number of sections of the report of Dr Wearne, in which he expressed the opinion that there is no consistent evidence that Paris has suffered any cognitive impairment, and that, while the applicant reported that Paris had deficits in her functional and adaptive behaviour, in fact, Paris had said that she wished to move out of the family home and live independently, and that she believed that she had the capability of doing so. Counsel also noted that Dr Wearne expressed the opinion that Paris’ performances on tests of high level thinking were generally sound, and that there was no convincing evidence of any cognitive impairment or organic brain impairment.
In addition, counsel for the respondent submitted that, in any event, if the evidence were admitted, it would not produce a different result on the question of whether the applicant had established the requisite hardship under s 72 of the Act. In particular, counsel noted that the judge concluded that, as a result of her findings about the credibility of the applicant, it could not be concluded that if the Turramurra property became the subject of a forfeiture order, the applicant and her children would become homeless, or that the applicant would lose her business.[59]
[59]Reasons, [288(a)].
Finally, counsel submitted that, in any event, the applicant failed to adduce evidence to establish, for the purpose of s 72(1)(b)(ii), the specified amount that would relieve the hardship, which the applicant contended would be sustained if the Turramurra property were forfeited. Accordingly, it was submitted, the applicant failed to establish a prerequisite to the application of s 72 of the Act.

Ground 3 — analysis and conclusion

The principles, concerning the admissibility of fresh evidence on a civil appeal, have been stated in a number of decisions of the High Court. In essence, there are two indispensable requirements, which must be satisfied, in order that such evidence be admissible on appeal. First, the party seeking to adduce and rely on the evidence must demonstrate that the evidence could not have been discovered before judgment by the exercise of all reasonable diligence in the circumstances. The second requirement has been variously stated in the authorities, in terms either that the effect of the fresh evidence must be such that ‘… it is almost certain that, if the evidence had been available and had been adduced, an opposite result would have been reached …’,[60] or, at the least, it must be reasonably clear that, if the evidence had been adduced at trial, it would have produced an opposite result.[61] Those two requirements are based on the fundamental principle that it is in the public interest that there be finality in litigation in all but truly exceptional cases.[62]
[60]Orr v Holmes (1948) 76 CLR 632, 640 (Dixon J) (‘Orr’); see also Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435, 444-5 (Dixon CJ).
[61]Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, 141 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) (‘Quade’).
[62]Quade (1991) 178 CLR 134, 141–142 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).
In Orr, Dixon J stated the principles in the following terms:
If a trial has been regularly conducted and the party against whom the verdict has passed cannot complain that evidence has been wrongly received or rejected or that there has been a mis-direction or that he has not been fully heard or has been taken by surprise or that the result is not warranted by the evidence, the successful party is not to be deprived of the verdict he has obtained except to fulfil an imperative demand of justice. The discovery of fresh evidence makes no such demand upon justice unless it is almost certain that, if the evidence had been available and had been adduced, an opposite result would have been reached and unless no reasonable diligence upon the part of the defeated party would have enabled him to procure the evidence.[63]
[63]Orr (1948) 76 CLR 632, 640 (Dixon J).
In McDonald v McDonald,[64] Barwick CJ expressed the principles in similar terms:
The discovery subsequent to verdict of admissible credible evidence, which could not have been sooner discovered by the exercise of reasonable diligence in the circumstances, and which is of such probative value and significance that, taken with the evidence already given at the trial, it will in all probability be decisive of the issues between the parties in a sense opposite to that of the verdict, is a ground for the granting of a new trial. If the Court is satisfied that the fresh evidence fulfils these requirements, it will generally conclude that, therefore, the interests of justice demand that the issues be tried afresh.[65]
[64](1965) 113 CLR 529.
[65]Ibid 532–3.
In Quade, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ stated the test in slightly less stringent terms as follows:
In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, … the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest. Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case. If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence.[66]
[66]Quade (1991) 178 CLR 134 141–142.
Applying those principles, it is quite clear that the applicant has not satisfied either of the two prerequisites for the admissibility of the evidence now sought to be relied on under ground 3. In particular, the applicant has not demonstrated that the evidence concerning the diagnosis of Autism Spectrum Disorder in respect of Paris, could not have been discovered before judgment in the present case by the exercise of reasonable diligence. Secondly, and in any event, the applicant has not demonstrated that, if that evidence were available, it is sufficiently clear that she would have succeeded in establishing the requisite hardship for the purposes of s 72 of the Act.
In respect of the first point, as we have noted, counsel for the applicant realistically acknowledged that, at the time of the hearing of the proceeding in the County Court, the applicant was (at least) probably aware that Paris suffered autism.
In the report of the speech pathologist, Ms Mujalli, dated 17 August 2010, it was noted that the administration of the Childhood Autism Rating Scale indicated that Paris then had the characteristics indicative of mild to moderate Autism Spectrum Disorder. In the affidavit of the applicant, relied on in support of the application under s 72 before the primary judge, it was deposed that both Paris and Parsia had, since 2014, ‘faced numerous mental illnesses’. Specifically, in her affidavit, Paris deposed that she had attended counselling sessions on a regular basis since 2015 with a psychiatrist, Dr Artin Jebejian. That is, Paris had been undergoing treatment from a psychiatrist for the seven years preceding the proceeding before the County Court in the present case.

It is to be noted, in that respect, that, significantly, the applicant did not seek to rely on any report from the treating psychiatrist, Dr Jebejian. In his affidavit, the applicant’s solicitor, Mr Khedr, stated that he was instructed that, at the time of the County Court proceeding, ‘Paris’ autism was present but not fully understood or diagnosed’. The absence of a report of Dr Jebejian leaves open the question as to what extent Paris’ autism was not ‘fully’ understood or diagnosed. Mr Khedr further deposed that the applicant’s family had, for many years, tried not to focus on or draw attention to ‘Paris’ autism’ for cultural reasons. It is implicit in that statement that the applicant did know that Paris did suffer autism.
It may be further observed, in that respect, that it is significant that the applicant herself did not depose an affidavit in support of the application to adduce fresh evidence on this appeal. Further, as we have noted, the applicant did not seek to rely on any evidence, or report, by Dr Jebejian, disclosing the psychiatric condition suffered by Paris, which had been the subject of regular treatment by him in the preceding seven years.
Mr Khedr has deposed that the family did not wish to have Paris undergo an autism diagnosis because it might be painful for her. That position is inconsistent with the evidence that was before the judge that Paris had been undergoing psychiatric treatment for a period of seven years before the trial of the proceeding in the present matter.
Mr Khedr further deposed that the applicant did not know, and was not advised, that Paris’ autism was relevant to any application for relief from hardship. That proposition is inconsistent with the reliance at first instance, by the applicant, on an affidavit deposed by herself, and an affidavit deposed by Paris, that Paris had a psychiatric disorder in respect of which she had been undergoing treatment.
Taking those matters into account, it could not be concluded, therefore, that the evidence as to Paris’ Autism Spectrum Disorder could not have been discovered before judgment in this matter by the exercise of all reasonable diligence in the circumstances. If, in fact, there had been no formal diagnosis of autism at the time of the County Court proceeding, it is quite evident, from the matters that we have discussed, that that diagnosis could have been discovered by the exercise of all reasonable diligence in the circumstances.
That conclusion, of itself, is sufficient basis for concluding that the applicant should not be permitted to rely on the fresh evidence that is sought to be adduced on this appeal.
Further, we are not persuaded that the applicant has satisfied the second precondition to the admission of fresh evidence, namely, the ‘fresh’ evidence now sought to be relied on would have produced a different decision, by the primary judge, in respect of the application by the applicant under s 72 of the Act.
As we have noted in considering ground 2, the judge was not satisfied that if the Turramurra property became the subject of a forfeiture order, the applicant and her children would become homeless, or, indeed, would suffer any financial detriment.[67] As a result of that conclusion by the judge, counsel for the applicant relied substantially on the proposition that a change of family home would have such consequences, in view of Paris’ psychological condition, that she would suffer the requisite hardship under s 72 of the Act.
[67]Reasons, [288].
That proposition is not supported by the fresh evidence now sought to be relied upon.
As counsel for the respondent correctly noted, the applicant’s solicitors’ letter of instruction to both Ms Moore and Dr Wearne was phrased in terms as to encourage the recipient to express a particular view concerning Paris’ psychological condition.
More significantly, it is quite clear from her report that Ms Moore was significantly reliant on information, given to her by the applicant, concerning Paris’ condition. That information was contained in the ‘Vineland Adaptive Behaviour Scales’ completed by the applicant. It was based on that information that Ms Moore concluded that Paris’ adaptive behaviours and daily living skills are at the second percentile on a standardised parent report measure and that, as such, she would require substantial support in terms of her social interaction and social communication. It is quite clear from the content of her report that Ms Moore was significantly influenced by the information provided to her by the applicant in her assessment that the applicant would require ‘substantial support’ in terms of her social communication and ‘very substantial support’ in terms of her repetitive behaviours.
That consideration is of particular relevance, in view of the judge’s adverse findings about the credibility and reliability of the applicant.
Relevantly, Ms Moore did not express any opinion as to whether, and to what extent, a change of residence would affect Paris.
Dr Wearne’s report records that there is a significant discrepancy between the information provided by the applicant in the Vinelands Adaptive Behaviour Scales on the one hand, and Paris’ own assessment as to adaptive skills and coping mechanisms. In particular, Dr Wearne recorded that Paris stated to him that she contributed to the household duties by assisting with particular domestic tasks, that Paris denied any issues with activities of daily living or self-care, and that she managed her own finances. Paris also told Dr Wearne that she would like to move out of the family home one day, and that she considered that she could manage living independently. Significantly, Paris told Dr Wearne that, although she would be anxious for her parents if the family were required to move home, nevertheless, she believed that she herself would be able to adjust to a move to a new home.
Relevantly, Dr Wearne noted that Paris’ performances on tests of higher level thinking were generally sound, and that she performed in the ‘low average’ to ‘superior’ ranges on tasks of verbal abstract meaning reasoning, non-verbal abstract reasoning, lexical fluency, semantic fluency, and higher level attention skills and cognitive control. Dr Wearne concluded that the findings from his assessment showed that Paris was performing within normal limits across most areas of cognitive functioning that were assessed. Her limited engagement with academic learning and education, together with her Autism Spectrum Disorder, accounted for the weaknesses in her cognitive function that were detected on the assessment. However, overall, there was no convincing evidence of cognitive impairment or organic brain impairment, and the quality of Paris’ cognition was well above the minimum threshold required for an intellectual disability. Dr Wearne considered that Paris has the cognitive and intellectual capacity to study and work. Her social communication difficulties might hinder her engagement in employment opportunities. It was in the context of those conclusions that Dr Wearne did state that Paris ‘may struggle’ with losing the routine and stability of her family household, and that she might experience ‘increased distress and adjustment issues’ with the forfeiture and removal from the family home.
The foregoing evidence, and in particular the report of Dr Wearne, falls well short of demonstrating that if the Turramurra property were the subject of a forfeiture order, Paris would incur consequences that could be properly characterised as the requisite ‘hardship’ that must be demonstrated in order to enliven relief under s 72 of the Act. The fact that Paris, who considers that she herself would like to live independently of her parents, might ‘struggle’ with losing the routine and stability of her family household, arising from a change of residence, could not be concluded to amount to hardship, that is, to circumstances that amounted to a material degree of privation for Paris.
Accordingly, it follows that the fresh evidence that the applicant has sought to adduce, under ground 3 of this application, is insufficient to demonstrate that, if that evidence had been available and relied on before the primary judge, it would have produced an opposite result.
Accordingly, the applicant has failed to satisfy either of the two preconditions for the admissibility of the fresh evidence now sought to be relied on on this appeal.
It follows that ground 3 of the application for leave to appeal must also fail.

Summary of conclusions

For the foregoing reasons, we have concluded that each of the three grounds of appeal sought to be relied on do not succeed.
It follows that the application for leave to appeal must be refused.

[2024] VSCA 230

7 October 2024