Application by the Commissioner of the Australian Federal Police
[2015] NSWSC 77
•30 January 2015
Supreme Court
New South Wales
Medium Neutral Citation: Application by the Commissioner of the Australian Federal Police [2015] NSWSC 77 Hearing dates: 30 January 2015 Date of orders: 30 January 2015 Decision date: 30 January 2015 Jurisdiction: Common Law Before: Davies J Decision: 1. Notwithstanding the order made by the Registrar on 9 December, I will extend the time to Yixiong Chen to file and serve all of his evidence in relation to the Notice of Motion by 21 February 2015.
2. Any evidence not filed and served by 21 February will not be entitled to be relied upon without the leave of a Judge of this Court.
3. Mr Chen is to pay the Plaintiff's costs of today and any other costs thrown away by reason of noncompliance with the order of the Registrar on 9 December.
4. I note that prayer 2 in the Notice of Motion filed today is not pursued.Catchwords: PROCEDURE – affidavits – time for filing – failure by defendant to file and serve affidavits in accordance with directions – guillotine order by Registrar – delay not caused by fault of defendant – no prejudice to plaintiff not compensable by costs – time extended Legislation Cited: Proceeds of Crime Act 2002 (Cth) Category: Procedural and other rulings Parties: The Commissioner of the Australian Federal Police (Plaintiff)
Yixiong Chen (Applicant)Representation: Counsel:
Solicitors:
S Le Poidevin
D Junn (Applicant)
Australian Federal Police, Proceeds of Crime Litigation (Plaintiff)
Dixon Holmes Lawyers (Applicant)
File Number(s): 2014/170251
Judgment
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These proceedings are under the Proceeds of Crime Act 2002 (Cth). On 19 August 2014 the Defendant filed a Notice of Motion asking, first of all, that the restraining order made on 6 June 2014 be revoked and that, presumably in the alternative, it be varied pursuant to s 31 of the Act and that moneys seized by the Plaintiff be returned to the Applicant, Mr Chen.
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The Applicant, Mr Chen, has been given a number of opportunities by directions of the Court to file and serve his evidence in support of the Notice of Motion. It was first to be served by 22 October. That did not occur, it is said, because subpoenaed documents required to be produced on 8 October were not produced until 15 October and Mr Chen was not able to obtain access to them until 20 October.
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To allow for that, on 23 October Hidden J directed that Mr Chen's evidence was to be served by 28 November. That did not occur because on 20 November the solicitor for Mr Chen received five boxes of documents in respect of evidence which was expected to be given by three other witnesses on the motion. The material in the boxes consisted of financial and business records, and Mr Chen's solicitor realised he needed some professional assistance to assist him in understanding those documents and how they impacted upon the issues in the Notice of Motion.
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On 9 December the Registrar again extended the time in which Mr Chen was to serve his evidence to 19 January 2015 and imposed a guillotine order so that any evidence not served by that date would not be entitled to be relied upon.
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Mr Chen's solicitor is a sole practitioner. He had a prior commitment in the High Court in Hong Kong in December. To that end, he was absent from Australia from 5 to 21 December. He had arranged for a barrister, not counsel briefed in the matter, to attend before the Registrar to obtain an extension of the time.
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On his return from overseas Mr Chen's solicitor gave attention to the preparation of the affidavits from the material that had been supplied and the instructions he had. He drafted affidavits, and when attempting to contact his counsel on 12 January was advised by counsel's clerk that counsel would not return to chambers until 27 January. Accordingly, Mr Chen's solicitor says that he was not able to comply with the Registrar's order to file and serve the evidence by 19 January. In those circumstances, he seeks leave on a motion filed in court this morning to be given until 21 February to complete this evidence.
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The examinations of Mr Chen and other witnesses are fixed for hearing on 3 February in the Administrative Appeals Tribunal.
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The extension of time is opposed by the Plaintiff. It is accepted that the examinations on 3 February and thereafter will be able to proceed, although whether those examinations can be completed in the absence of this further evidence seems doubtful. Nevertheless, I am informed that some meaningful examinations will be able to be conducted of the witnesses commencing on 3 February.
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The position is extremely unsatisfactory, but it seems to me to have occurred for two specific reasons. One was the late service of the five boxes of documents by one of the three other witnesses on 20 November. The second was the absence of the solicitor and counsel to attend to the matter in a timely fashion prior to the date specified for the filing of the evidence and certainly prior to the commencement of the examinations on 3 February.
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I accept that Mr Chen's solicitor, who is a sole practitioner, had a prior commitment out of the country for a period of a little over two weeks at a crucial time. It is nevertheless unfortunate that, despite that commitment, some arrangements were not able to be made for the completion of the evidence by the time specified. Nevertheless, I do not consider that I ought to punish the Applicant, Mr Chen, because of matters which have seemingly occurred outside of his personal control and not as a result of fault on his part.
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In the circumstances, I do not consider that the prejudice to the Plaintiff is such that I should refuse the order that has been asked for by Mr Chen.
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There may be some extra expense incurred in re-listing the examinations after the dates set down next week. As I understand it, the Plaintiff will be compensated for that from the proceeds seized, although it is accepted that that diminishes those proceeds which can be otherwise usefully employed.
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I will therefore make these orders:
1. Notwithstanding the order made by the Registrar on 9 December, I will extend the time to Yixiong Chen to file and serve all of his evidence in relation to the Notice of Motion by 21 February 2015.
2. Any evidence not filed and served by 21 February will not be entitled to be relied upon without the leave of a Judge of this Court.
3. Mr Chen is to pay the Plaintiff's costs of today and any other costs thrown away by reason of noncompliance with the order of the Registrar on 9 December.
4. I note that prayer 2 in the Notice of Motion filed today is not pursued.
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Decision last updated: 17 February 2015
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