Abo Abdo v Commissioner of the Australian Federal Police (Ruling)
[2025] VCC 657
•29 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Unrestricted Suitable for Publication |
| CONFISCATION LIST |
Case No. CI-19-03973
CI-20-01642
CI-20-05178
| IN THE MATTER OF the Proceeds of Crime Act 2002 |
| and |
| IN THE MATTER OF the suspect, NASSER ABO ABDO |
| and |
| IN THE MATTER OF a property reasonably suspected of being the proceeds of serious and indictable offences |
BETWEEN:
| NASSER ABO ABDO | Applicant |
| and | |
| THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Respondent |
---
JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Matter determined on the papers: Written Submissions filed 21 May 2025 (Respondent) and 23 May 2025 (Applicant) | |
DATE OF RULING: | 29 May 2025 | |
CASE MAY BE CITED AS: | Abo Abdo v Commissioner of the Australian Federal Police (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 657 | |
RULING
---
Subject:PROCEEDS OF CRIME
Catchwords: Procedure – confiscation of proceeds of crime – application for restraining order – application for exclusion from restraint – application for exclusion from forfeiture – pro bono counsel appointed by Court – power of Court to make pro bono costs order – whether ruling in relation to power to make pro bono costs order should be made prior to mediation
Legislation Cited: Proceeds of Crime Act 2002 (Cth), s323, s338; Criminal Code Act 1995 (Cth), s11.5, s307; County Court Civil Procedure Rules 2018 (Vic), r63A.35.2, r1.05, r10.02; County Court Act 1958 (Vic), s78A; Legal Profession Uniform Conduct (Barristers) Rules 2015
Cases Cited: Wentworth v Rogers (2006) 66 NSWLR 474; Manieri v Cirillo [2014] 47 VR 127; Wellington v Metcalf (No 2) [2025] VSC 243
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr D Mence | Pro Bono Counsel |
| For the Respondent | Ms A Singh | Australian Federal Police Criminal Assets Litigation |
HER HONOUR:
Introduction
1This matter concerns applications made by Mr Nasser Abo Abdo (“the applicant”), for exclusion of certain property from restraint and forfeiture.
2There are presently three Restraining Orders (“ROs”) on foot in respect of the applicant’s property. The first was made by Judge Cohen under the Proceeds of Crime Act 2002 (Cth) (“the POCA”) and is dated 10 September 2019 (“first RO”). The second was made by Judge Dyer under the POCA and is dated 26 May 2020 (“second RO”). The third was made by Judge Dyer under the POCA and is dated 8 December 2020 (“third RO”).
3The Commissioner of the Australian Federal Police (“the Commissioner” or “the respondent”) has made applications under the POCA for forfeiture of the property restrained by each of the three ROs. The applicant has filed applications for exclusion from restraint and exclusion from forfeiture under the POCA, in respect of the property restrained by each of the three ROs (collectively, “the proceeding”).
4On 25 October 2024, the applicant pleaded guilty to, and was convicted of, the offence of conspiring to import a commercial quantity of border controlled drugs contrary to s11.5(1) and s307.1(1) of the Criminal Code Act 1995 (Cth). This is a “serious offence” for the purposes of s338 of the POCA.
5By an Order made by this Court on 17 December 2024, the date for automatic forfeiture of the property restrained by each of the three ROs under the POCA, was extended to 25 January 2026. As part of that Order, the Court also made a request to the Victorian Bar, pursuant to the Victorian Bar Pro Bono Barristers Court Referral Scheme (“the Scheme”), for the purposes of appointing a barrister to appear on behalf of the applicant in the proceeding.
6On 29 January 2025, pro bono counsel accepted the request to act for the applicant in the proceeding, pursuant to the Scheme.
7The applications are presently listed for a hearing commencing on 25 August 2025, on an estimate of five to seven days.
8The applications are listed for a Judicial mediation which is scheduled to take place on 2 June 2025.
9By an email dated 16 May 2025, the applicant made application for a ruling in this matter, as to whether r63A.35.2 in Chapter I of the County Court Civil Procedure Rules 2018 (Vic) (“the Rules”), has application to the determination of any costs application that may be made on behalf of the applicant at the conclusion of the proceeding (“the application”).
10As is appropriate, the applicant does not presently seek an order as to costs. Nor does the applicant seek to depart from the usual rule that costs follow the event. However, it is clear that pro bono counsel seeks to foreshadow an ultimate application for costs at the conclusion of the hearing of the proceeding, if the applicant is in fact successful. Pro bono counsel has requested that the ruling sought by the application, be made prior to the conduct of the Judicial mediation, since the issue of whether r63A.35.2 in Chapter I of the Rules applies to any costs dispute following the hearing of the proceeding, is likely to affect the negotiations which may take place at the Judicial mediation.
Submissions
The Commissioner
11By a written submission, the Commissioner submitted:
(a) first, that the application is premature and that the Court ought not, at present, exercise its discretion to make a ruling as to the applicability of r63A.35.2 to the proceeding. These matters are properly to be dealt with at the conclusion of the trial of the proceeding, as would occur in the usual course of any civil proceeding in this Court;
(b) as to the premature nature of the application, the following matters should be considered in particular:
(i)the circumstances of this matter militate against the making of a ruling as sought because:
(A)the parties are yet to file any evidence or outlines of evidence in the proceeding;
(B)there has been no trial of the proceeding and thus, no determination of the issues in dispute;
(C)in any event, by reason of his plea of guilty to the serious offence referred to above, the applicant is unlikely to be able to satisfy the Court of the pre-conditions in ss323(1)(a)-(c) of the POCA;
(D)in those circumstances, there is a real issue as to whether the Court ought exercise its discretion to award costs in favour of the applicant, even if he is ultimately successful. This will be a discretionary decision for the trial judge having heard the evidence and determined the issues in this proceeding; and
(ii)the application is akin to the pro bono legal representatives of a defendant in a general civil proceeding seeking a preliminary ruling as to whether costs are payable if a claim is successfully defended. The Court ought not countenance such a premature application;
(c) second, that r63A.35.2, which governs the making of a pro bono costs order in civil proceedings, sits within Chapter 1 of the Rules;
(d) rule1.05(2) in Chapter 1 of the Rules, provides that rules which appear within Chapter 1 of the Rules, do not apply to a civil proceeding to which Chapter II of the Rules apply;
(e) Part 3 of Chapter II of the Rules, applies to a proceeding in this Court under the POCA;[1]
(f) Chapter II of the Rules is silent on the issue of costs. Thus, the prima facie position is that r63A.35.2 in Chapter 1 of the Rules, does not apply to proceedings conducted in this Court under the POCA;
(g) third, it is accepted that by the operation of s78A of the County Court Act 1958 (“the CCA”) and/or s323 of the POCA, this Court has the statutory power to make orders as to costs in POCA proceedings;
(h) however, there has presently been no consideration by an appellate court as to the costs implications where:
(i)an applicant is successful in their proceeding under the POCA; but
(ii)they are unable to satisfy the pre-conditions set out in s323(1) of the POCA;
(iii)thus, even if he is successful, the making of a costs order in the applicants favour is not “preordained”;
[1]See r10.02(2) in Chapter II of the Rules
(i) in circumstances where the power to award costs arises only under s78A of the CCA and/or under s323 of the POCA, the “indemnity principle” must be considered when deciding what costs ought be awarded to a successful applicant. As to the operation of the indemnity principle, the Court should consider the judgments in Wentworth v Rogers,[2] Manieri v Cirillo[3] and Wellington v Metcalf (No 2).[4]Pursuant to the matters outlined in these cases, in order to avoid breaching the indemnity principle, it would be necessary for the applicant to demonstrate some liability to pay his legal costs before a costs order in his favour could be made;[5]
(j) the Commissioner is not presently in a position to make any submissions as to whether any costs order made in the applicant’s favour would breach the indemnity principle.
[2](2006) 66 NSWLR 474 at paragraph [126], per Basten JA
[3][2014] 47 VR 127 at paragraph [43], per Nettle AP, Hansen JA and Santamaria JA; the Commissioner helpfully pointed out in his written submissions that r63A.35.2 in Chapter I of the Rules, was inserted following the decision of the Victorian Court of Appeal in Manieri v Cirillo (ibid)
[4] [2025] VSC 243
[5]Ibid at paragraphs [61]-[65], per Ierodiaconou AsJ
The applicant
12In written submissions filed on his behalf by pro bono counsel, the applicant made the following submissions:
(a) when he accepted the request for pro bono legal assistance, pro bono counsel assumed that r63A.35.2 in Chapter I of the Rules, applied to the making of any costs order in the proceeding;
(b) correspondence between the parties has demonstrated that the Commissioner does not share this view;
(c) the Court ought to make a ruling as to the applicability of r63A.35.2 in Chapter I of the Rules to these proceedings, prior to the Judicial mediation scheduled for 2 June 2025. That is because the conduct of that mediation may be affected by the outcome of the ruling;
(d) the Commissioner submits that Chapter II of the Rules is silent on the issue of costs. If this is the case, then costs are in the general discretion of the Court under s78A of the CCA. In those circumstances, the indemnity principle arises for consideration;
(e) this creates a position where counsel who has accepted an appointment to act in the proceeding on a pro bono basis, will ultimately be unable to claim any costs, even if the applicant is successful in the proceeding, because the applicant has no present costs liability to pro bono counsel;
(f) it was to address this situation that r63A.35.2 in Chapter I of the Rules was inserted into the Rules;
(g) the Commissioner’s position runs contrary to the objectives of the Scheme. The Commissioner contends for a “two tiered system” for the provision of pro bono legal services. The first tier encompasses all other criminal and civil proceedings, including, arguably, proceedings brought under the Confiscation Act 1997. The second tier encompasses only proceedings under the POCA;
(h) the Court should be slow to accept such a submission in light of the fact that proceedings under the POCA often raise important public policy issues. It is also relevant that under the POCA, the Court cannot order that Victoria Legal Aid provide the applicant with assistance. This works an especial unfairness in this proceeding. Not only does the applicant not have the benefit of a pro bono instructing solicitor (despite having made strenuous attempts to secure one), if the Commissioner’s submissions are accepted, the applicant’s only legal resource, namely pro bono counsel, cannot recover any costs, even if costs follow the event and s323 of the POCA is satisfied. Thus, the taking of any step in this proceeding would need to be undertaken on the basis that no pro bono fees are recoverable;
(i) the unfairness which attaches to this situation is stark, especially given the “hard deadline” for automatic forfeiture of his property imposed upon the applicant by the operation of the POCA. He has until 25 January 2026 to prosecute the proceedings, but no resources with which to do so. Most of the important work that is required to investigate, locate and assemble the necessary proofs, including missing business records, cannot be done by Counsel under the Legal Profession Uniform Conduct (Barristers) Rules 2015 (“the Barristers’ Rules”); and
(j) if the Court rules that r63A.35.2 in Chapter I of the Rules does not apply to these proceedings, then the Court should grant leave to pro bono counsel to cease acting, and order, of its own motion, that the proceeding be stayed pending the provision of proper legal representation to the applicant.
Analysis
13I have carefully considered each of the written submissions filed with the Court, the relevant case law and the applicable legislation.
14On the basis of the materials before me, I have reached the preliminary conclusion that by reason of the operation of r1.05 in Chapter 1 of the Rules, r63A.35.2 in Chapter I of the Rules does not have application to this proceeding. In light of this, my preliminary view is that the power to award costs in this matter arises under s78A of the CCA and s323 of the POCA, given that Part 3 of Chapter II of the Rules is silent as to costs. My preliminary ruling in response to the application is to that effect.
15However, I accept the Commissioner’s submission that the issues raised by this application are complex. Having made this preliminary ruling on the basis only of the matters raised in the written submissions which were filed with the Court (which, by reason of the urgent nature of the application, did not comprise an exhaustive analysis of the issues), I am also of the view that parties ought not be precluded from revisiting with the Court the applicability of r63A.35.2 in Chapter 1 of the Rules and raising further argument in relation to this matter, if at the conclusion of the proceeding, the question of the applicant’s costs arises for consideration.
16In the meantime and in light of the preliminary ruling that I have made, I observe that it remains open to pro bono counsel to enter into any costs arrangement with the applicant that is permitted by the Barristers Rules, which he considers to be necessary in light of the matters set out in the judgments in Manieri v Cirillo[6] and Wellington v Metcalf (No 2).[7] In those circumstances, I refuse the application by pro bono counsel for leave to cease acting in the proceeding. The issue of the Court granting a stay of proceeding on its own motion, therefore does not arise.
[6] supra
[7] supra
17For the avoidance of doubt, nothing in this ruling should be taken as indicating that I have formed any view about the merits of the applicant’s arguments in this proceeding nor as to the merits of any costs application that might ultimately be made on behalf of the applicant, at the conclusion of the proceeding or any part of it.
- - -
0
3
0