AD v Commissioner of the Australian Federal Police (No 2)

[2018] NSWCA 169

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	AD v Commissioner of the Australian Federal Police (No 2) [2018] NSWCA 169
Hearing dates:	On the papers
Decision date:	02 August 2018
Before:	Beazley P; Meagher JA; Gleeson JA
Decision:	Notice of motion dismissed with costs.
Catchwords:	CIVIL PROCEDURE – notice of motion to set aside or vary a judgment of Court of Appeal – whether Court should consider applicant’s appeal in circumstances where appeal was summarily dismissed – whether Court failed to consider applicant’s submissions and authorities relevant to application for summary dismissal
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 36.16, 36.16(1), 36.16(3A)
Cases Cited:	Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Category:	Consequential orders (other than Costs)
Parties:	AD (Applicant) Commissioner of the Australian Federal Police (Respondent)
Representation:	Counsel: In person (Applicant) E A Cheeseman SC; J C Conde (Respondent)     Solicitors: In person (Applicant) Australian Federal Police (Respondent)
File Number(s):	2016/147755
Decision under appeal	Court or tribunal: Supreme Court Citation: Commissioner of the Australian Federal Police v Dickson (No 3) [2016] NSWSC 564 Date of Decision: 6 May 2016 Before: Adamson J File Number(s): 2012/108692

Judgment

1. THE COURT: On 30 April 2018, this Court summarily dismissed an appeal brought by the applicant from a decision of Adamson J of 6 May 2016, in which her Honour dismissed the applicant’s application seeking an exclusion order pursuant to the Proceeds of Crime Act 2002 (Cth), s 94 in respect of certain items of property the subject of restraining orders made pursuant to s 18 of that Act: AD v Commissioner of the Australian Federal Police [2018] NSWCA 89.

2. On 15 May 2018, the applicant filed a notice of motion in which he sought the following orders:

1. That the decision and orders made by this Court on 30 April 2018 be set aside or varied in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 36.16, 36.16(1), 36.16(3A) and the inherent powers of this Court;

2. That the decision and orders made by this Court on 30 April 2018 be stayed and that all of the applicant’s submissions be dealt with by the Court;

3. That the decision and orders made by this Court on 30 April 2018 be set aside or varied to take into consideration various matters, cases and the applicant’s submissions in respect of the following issues:

1. Whether the applicant has “a right and ability” to appeal the decision of Adamson J concerning his application for an exclusion order;

2. Whether counsel for the Commissioner of the Australian Federal Police (the Commissioner) committed a serious fraud on the Court, rendering the restraining orders made void ab initio; and

3. Whether various provisions of the Proceeds of Crime Act are constitutionally invalid.

3. The issues identified in (3)(a), (b) and (c) above were the issues raised by the applicant in his notice of appeal.

4. This Court, on the Commissioner’s application for summary dismissal, determined those issues as follows:

1. Subject to the constitutional validity of the provisions challenged by the applicant, the applicant’s appeal was futile in circumstances where the property had already been forfeited to the Commonwealth;

2. The Proceeds of Crime Act, ss 18, 26(4), 92, 95 and 338(a)(ii), (a)(iv) and (g) of the definition of “serious offence” are constitutionally valid;

3. As the applicant had not raised in the proceedings before the primary judge the issue of the restraining orders having been obtained by fraud, the Court would not allow the applicant to raise that ground on the appeal: see Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33.

5. The Court has power, pursuant to UCPR, r 36.16(3A), to set aside or vary a judgment or order if a notice of motion seeking such orders is filed within 14 days after the judgment or order is entered. Accordingly, it is not necessary to consider the other bases upon which the applicant relied for the Court’s jurisdiction to hear and determine the notice of motion.

6. The applicant’s submissions in support of his notice of motion raised the following matters:

1. Whether the applicant will be denied procedural fairness if the Court does not “re-ope[n] a matter which has not been considered on its merits”. We understand this submission to assert that the applicant will be denied procedural fairness if the Court does not make the orders sought in his notice of motion.

2. Whether the allegations of fraud require consideration to ensure the “overall procedural fairness of the proceeding”;

3. Whether this Court’s decision of 30 April 2018 was not a decision on the merits;

4. Whether the matters raised in the notice of motion were not considered or agitated and thus should now be considered by this Court;

5. Whether this Court misapprehended “significant matters of law”;

6. Whether arguments were put to this Court which were not dealt in the Court’s reasons for judgment;

7. Whether the matters raised in the notice of motion are significant and thus call for consideration by the Court;

8. Whether the Court “proceeded on an incorrect analysis” by not considering the matters raised in the notice of motion, which needs to be corrected;

9. Whether the authorities to which reference is made in the notice of motion require consideration in the interests of justice;

10. Whether, in circumstances where the High Court dismissed the applicant’s application under the Judiciary Act 1903 (Cth), s 40 because this Court had not yet determined the constitutional issues raised by the applicant, the Court should now “fully consider” the constitutional validity of the Proceeds of Crime Act;

11. Whether this Court failed to consider all of the submissions and arguments raised by the applicant, and thus failed to fulfil its appellate role in clarifying the law; and

12. Whether this Court should determine the notice of motion having regard to the “consequences of its decision” of 20 April 2018, which, the applicant contends, “enshrin[es] a fundamental shift in government policy” by allowing unpaid income tax to be determined and collected by the Australian Federal Police in addition to the extensively legislated rights and obligations of the Commissioner of Taxation and the Australian Taxation Office.

7. In our opinion, the applicant’s notice of motion and submissions misconceive both the nature of the matter that was the subject of the Court’s determination in its principal judgment and the Court’s judicial function in the manner in which it determines matters before it. Nor do we accept that the applicant was denied procedural fairness in the determination of the issues that were before the Court and which were the subject of the principal judgment.

8. The Court, in the principal judgment, dealt with the Commissioner’s application for the summary dismissal of the applicant’s appeal. The basis of that application was that, pursuant to the provisions of the Proceeds of Crime Act, there is no power to exclude property from a restraining order once that property has been forfeited to the Commonwealth.

9. The Court upheld that argument, but, as we have already intimated, in doing so, it was acknowledged that that aspect of the determination was subject to whether the provisions of the Proceeds of Crime Act challenged by the applicant were constitutionally invalid. The Court dealt with the constitutional argument and rejected the applicant’s submissions that the provisions he sought to impugn were constitutionally invalid.

10. For the reasons already noted above, the Court also observed that it would not have allowed the applicant to agitate those grounds of appeal in which he alleged that the restraining orders were obtained by fraud.

11. The Court gave its reasons for each of the matters that were in issue before it. To the extent that the applicant’s submissions and arguments were relevant to the issues before the Court, regard was had to them. Likewise, to the extent that the Court considered that there were authorities relevant to the issues before it and which were appropriate to be considered, those authorities were considered.

12. The applicant’s notice of motion raised several matters which were not raised in his submissions when the matter came before this Court. First, the applicant submitted that the Court should consider whether his claim was time barred in circumstances where the alleged fraud occurred five years ago. We note that the applicant has only brought this to the Court’s attention now, despite having had the opportunity to have done so previously. More fundamentally, however, an application to set aside a judgment for fraud should be made in a separate proceeding: Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 693, 696-697, 701.

13. Secondly, the applicant submitted that the Court should consider whether the Proceeds of Crime Act is authorised under s 51 of the Constitution, including s 51(ii) (the taxation power), s 51(xxxvii) (matters referred to the Commonwealth by a state) and s 51(xxxix) (the incidental power). He also submitted that the Court should consider whether the Proceeds of Crime Act is constitutionally invalid because of “non-compliance” with ss 81-83, which govern the Consolidated Revenue Fund, expenditure charged thereon and the appropriation of money. In essence, the applicant now seeks to reframe the constitutional invalidity argument he put previously when the matter came before this Court, which was based on whether the Proceeds of Crime Act fundamentally changes the character, functions and power of the Supreme Court and requires the Supreme Court to engage in administrative processes peculiar to the Federal Commissioner of Taxation. Although it was open to the applicant to put his argument in this way previously, the opportunity to do so has now passed. But in any event, the Court dealt with the taxation issue, including whether the Proceeds of Crime Act is a law with respect to tax.

14. In our opinion, the applicant’s notice of motion is no more than an attempt to have his appeal heard, in circumstances where the Court has determined that it should be summarily dismissed. It follows that the applicant’s notice of motion should be dismissed with costs.

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Decision last updated: 02 August 2018