Application of the Commissioner of the Australian Federal Police

[2015] NSWSC 1170

Supreme Court

New South Wales

Medium Neutral Citation:	Application of the Commissioner of the Australian Federal Police [2015] NSWSC 1170
Hearing dates:	13 August 2015
Decision date:	13 August 2015
Jurisdiction:	Common Law
Before:	Button J
Decision:	I consider it appropriate that the matter be heard ex parte.
Catchwords:	CRIMINAL LAW – proceeds of crime – application for forfeiture under s 49 of the Proceeds of Crime Act 2002 (Cth) – whether the plaintiff has taken reasonable steps to notify the defendant of the proceedings – whether the matter should proceed ex parte
Legislation Cited:	Proceeds of Crime Act 2002 (Cth), ss 49(1), 49(1)(e), 74, 74 (3)(a)
Category:	Procedural and other rulings
Parties:	Commissioner of the Australian Federal Police (Plaintiff) Ex parte
Representation:	Counsel:   Solicitors: Australian Federal Police, Proceeds of Crime Litigation (Plaintiff)
File Number(s):	2015/42962

ex tempore Judgment

1. This is an application for forfeiture under s 49(1) of the Proceeds of Crime Act 2002 (Cth) (the Act) of a sum of over $11 million that has previously been the subject of a restraining order. There has been no attendance of the defendant today, and no representation of him. The threshold question arises whether I should permit the matter to proceed ex parte.

2. In support of that proposition, the solicitor for the plaintiff read three affidavits. They establish that the plaintiff has sought to locate the defendant at both an address in Pyrmont and an address in Rockdale, each of which is derived from documents in Australia that are themselves based upon information given by the defendant at various times. Those efforts have not met with success.

3. Documents have also been sent to an email address provided by the defendant. Eventually, all documents were received at that email address without the sender receiving any notification that the emails and their attachments had "bounced". That email address was provided by the defendant on an incoming passenger card of 4 February 2015 when he last entered Australia.

4. Immigration records show that the defendant left Australia on 16 February 2015. Although it seems his destination was and place of residence is China, in truth one can by no means be certain that he remains in that vast and populous nation.

5. The solicitor for the plaintiff has invited my attention to s 49(1)(e) of the Act, which speaks of the requirement that the plaintiff take “reasonable steps” to notify the defendant of this application. That phrase may be contrasted, she submitted, with the requirement that (for example) all possible steps be taken. She submitted that Parliament has mandated a test that strikes a balance of practicality.

6. She also submitted that, as a matter of statutory interpretation founded upon reading the Act as a whole, s 49(1)(e) must be read in light of s 74 of the Act. She explained in short that, even if a forfeiture order were made by me today, it would not be irrevocable. In particular, pursuant to s 74(3)(a), if the defendant were able in due course to demonstrate that he had not, in truth, been effectively notified of this application, he may well be granted leave to reopen the question of forfeiture.

7. Turning to my determination, I am satisfied that the plaintiff has taken reasonable steps to notify the defendant of the proceedings before me today.

8. Accordingly, I consider it appropriate that the matter be heard ex parte.

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Decision last updated: 19 August 2015