Austviet International Pty Ltd v Director of Public Prosecutions
[2021] VSC 210
•4 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CONFISCATION AND PROCEEDS OF CRIME LIST
S ECI 2020 01370
| AUSTVIET INTERNATIONAL PTY LTD | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 March 2021 |
DATE OF RULING: | 4 May 2021 |
CASE MAY BE CITED AS: | Austviet International Pty Ltd v Director of Public Prosecutions |
MEDIUM NEUTRAL CITATION: | [2021] VSC 210 |
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PRACTICE AND PROCEDURE — Application for an exclusion order — Application made out of time — Whether applicant was on notice of restraining order — Whether applicant’s failure to apply to exclude property from the restraining order was neglectful — Whether applicant’s delay in applying to exclude property from automatic forfeiture was neglectful — Whether extension of time should be granted — Confiscation Act 1997 (Vic) s 51 — Morizio v Director of Public Prosecution & Ferraro (Supreme Court of Victoria, Osborn J, 27 June 2009); Director of Public Prosecutions v Le (2007) 232 CLR 562; and Christensen v DPP [2002] QSC 365 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Lithgow | KCL Law |
| For the Respondent | Ms R Burton | Office of Public Prosecutions |
HER HONOUR:
Introduction
Pursuant to s 51 of the Confiscation Act 1997 (Vic) (‘the Act’), Austviet International Pty Ltd (‘the applicant’) seeks leave to make an application for orders under s 52 of the Act to exclude the applicant’s interest in property from automatic forfeiture (‘the application’).
Xam Le was the sole director and shareholder of the applicant at all relevant times.
The property the subject of the application is the net proceeds of sale of real property situated at 283 Station Road, Albanvale in the State of Victoria, more particularly described in Certificate of Title Volume 10430 Folio 321 (‘the property’). The net proceeds total $276,094.23 (‘the proceeds’).
Following a joint investigation into an alleged drug trafficking syndicate, code named Operation Sethra, the Director of Public Prosecutions for Victoria (‘the Director’), applied on 10 August 2010 for a combination of civil forfeiture orders and restraining orders in relation to a number of properties, including a restraining order over the property pursuant to ss 16 and 36K of the Act.
On 11 August 2010 Habersberger J made a number of restraining orders in relation to a number of alleged offenders, including Xam Le’s sister-in-law, Thi Nho Em Le (‘Thi Le’), as well as his wife, Sau Thi Le. The relevant restraining order for our purposes was made in proceeding S CI 2010 04336 in relation to Thi Le (‘the restraining order’) which covered this and other properties.
On 12 August 2010 the property sold at auction. On the same day Xam Le was taken into custody. There is a dispute as to whether he was personally served with the relevant restraining order on that day.
Thi Le pleaded guilty to trafficking in heroin on 22 November 2013.[1]
[1]She was thereby taken to be convicted under the Act on that date, see DPP v McCoid (1988) VR 982 and DPP v Nguyen & Anor ; DPP v Duncan & Anor (2009) 23 VR 66.
Thi Le was sentenced to 11 years imprisonment with a non-parole period of 8 years, see DPP v Le (County Court of Victoria, Taft J, 22 August 2014). Xam Le deposes that the date of conviction was 21 November 2013 (Affidavit of Xam Le affirmed 3 July 2020, [14]) but later deposes that he was advised by Spicer Lawyers that it was 60 days from conviction on 23 November 2013 (Affidavit of Xam Le affirmed 3 July 2020, [20(a)]). Nicole Spicer deposes that the conviction occurred on 22 November 2013 (Affidavit of Nicole Spicer affirmed 19 March 2020, [5]). Redlich and Beach JJA, in judgment on Thi Le’s appeal of her sentence in Le v DPP [2015] VSCA 193 identify the date of conviction as 22 November 2013.
No application for exclusion from the restraining order was made in respect of the property under s 20 of the Act within 60 days of the date of the conviction. Pursuant to s 35 of the Act, the proceeds were automatically forfeited to the State on 21 January 2014. The applicant submitted that it was 20 January 2014, but that date is contested by the respondent, although nothing turns on it. Damian Martin deposes that the date of forfeiture was 22 January 2014. Section 44(1) of the Interpretation of Actions Act 1984 (Vic) specifies that an Act provides for a period of time to be reckoned from a particular day, that day is not included. There is no obvious legislative intent to depart from this meaning in the wording of s 35. If 22 November 2013 is not included in the calculation, the date of automatic forfeiture is 21 January 2014.
The applicant had the right to make application for exclusion from automatic forfeiture of the property under s 51 of the Act within 60 days of the date of automatic forfeiture, namely by 22 March 2014. The applicant did not make such application by 22 March 2014.[2]
[2]The applicant submitted that the deadline to apply to exclude under s 51 was 21 March 2014.
By application filed 19 March 2020 the applicant seeks leave under s 51(3) to apply to exclude the property from forfeiture over six years after the forfeiture occurred.
The Director opposes the application on the grounds set out in the Notice of Contention.
The evidence
The applicant relies on the following:
(a) the affidavit of Nicole Spicer affirmed 19 March 2020; and
(b) the affidavit of Xam Le affirmed 3 July 2020.
In opposing the application, the Director relies on:
(a) the affidavit of Damien Martin sworn 29 July 2020;
(b) the affidavit of Leading Senior Constable Dale William Petri sworn 30 July 2020;
(c) the affidavit of Detective Leading Senior Constable Kelvin Brown sworn 28 July 2020; and
(d) the affidavit of forensic accountant Chris Pavlidis sworn 27 July 2020.
Xam Le was born in Vietnam on 9 September 1959 and came to Australia as a refugee in 1981 aged 22. English is not his first language and he learnt English after he came to Australia.
The applicant operated a sewing machine sales and repair business and petrol station. From 19 June 2003 the applicant was a registered proprietor of the property. Xam Le deposes that the applicant acquired the property through a real estate agent and that the vendor was an arm’s length third party.
Thi Le has never had any interest in the applicant company or the property. The Director instead asserted, in applying for the restraining order, that it was tainted property.
As noted, the restraining order was made on 11 August 2010.
Xam Le deposes that he was not served with a copy of the restraining order, and is unable to recall the circumstances in which the order was brought to his attention.[3]
[3]Affidavit of Xam Le affirmed 3 July 2020, [9]-[10].
The evidence of Detective Leading Senior Constable Kelvin Brown is that on 12 August 2010 he executed a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act 1981 (Vic) with other police investigators at the residence of Sau Thi Le and Xam Le, at 10 Lahy Street, St Albans. Sau Thi Le and Xam Le were taken into custody and transported to the St Kilda Road Police Complex for interview. Between 1:20pm and 5:22pm that day, Leading Senior Constable Dale Petri and Detective Leading Senior Constable Kelvin Brown interviewed Xam Le.
The property was listed to be sold at public auction that day, with Anthony Bullard of Bullard Solicitors acting for Xam Le in the conveyance. Before the auction commenced, Habersberger J heard an ex parte application by the Director and made an order varying the restraining order (‘the variation order’), granting power to the Trustee, Andrew McLellan, to sell the property by public auction. The property was sold at auction later that day.[4]
[4]Affidavit of Damian Martin sworn 29 July 2020, [18].
Dale Petri deposes that on 12 August 2010 at 17:45pm he served a copy of the restraining order personally on Xam Le while he was in custody at the St Kilda Road Complex and that he explained to him the nature of the document. On 26 August 2011 Dale Petri swore an affidavit of service relating to the service of the restraining order and he deposes that he incorrectly described it as a ‘civil forfeiture restraining order’ when completing his affidavit of service.[5] Finally, exhibited to Kelvin Brown’s affidavit are his notes in the police diary that record on 12 August 2010, amongst other things, at 17:45:
D/S/C Petrie served copy of R/O on Xam Le
Explained the same
Waiting for interpreter to arrive re I/V for Xiao Le
At hours 20.38 ‘R/O served onto Xiao Le by D/S/C Petrie, order explained with the assistance of interpreter Sam Pham.[6]
[5]‘Copy of Affidavit of Service sworn by Dale Petri on 16 August 2011’ exhibited as Exhibit DP-1 to the Affidavit of Dale Petri sworn 20 July 2020.
[6]‘Copy of Police Diary Notes made on 12 August 2010 by Kelvin Brown’, exhibited as Exhibit KB-1 to the Affidavit of Kelvin Brown sworn 28 July 2020.
Settlement for the sale of the property occurred on 12 October 2010. The proceeds were received by Andrew McLellan in accordance with his appointment as administrator pursuant to the restraining order.
At all material times between 2010 and 2014 the applicant was represented by Nicole Spicer of Spicer Lawyers in relation to getting various properties released from the restraining orders obtained in relation to the activities of Xam Le and Sau Thi Le and various companies controlled by them.
Xam Le deposes that he was not advised by Ms Spicer or anyone else to make an application for exclusion of the property from the restraining order.
The basis upon which the property was included in the restraining order was as a result of telephone intercepts, in which Thi Le discussed the sale of the property with another family member. In that call, Thi Le discussed the theft of a large sum of money from her business, and proposed that the property be sold in order to obtain money to continue her heroin trafficking business.[7] Xam Le deposes that he was not party to these discussions and was never asked or made aware of any plan to sell the property. His evidence is that if asked he would have refused as neither he nor the applicant had any involvement in Thi Le’s illegal activities.[8]
[7]‘Copy of Affidavit of Phillip James Gillespie in support of applications for restraining orders (Convictions Based) sworn 11 August 2010 (excluding exhibits)’ exhibited as Exhibit DM-2 to the Affidavit of Damian Martin sworn 29 July 2020 [35(b)(iii)], [50]-[53]; ‘Copy of Civil Forfeiture Affidavit of Phillip James Gillespie sworn 10 August 2010 (excluding exhibits)’ exhibited as Exhibit DM-3 to the Affidavit of Damian Martin sworn 29 July 2020, [168]-[169].
[8]Affidavit of Xam Le affirmed 3 July 2020, [13].
As noted, Thi Le pleaded guilty on 22 November 2013 to trafficking a commercial quantity of heroin. Xam Le has not been charged with any offences. Xam Le deposes that as a result of a failure to recognise that the property was subject to the restraining order, no application was made at the relevant time for exclusion of the property from the order. As such, the net proceeds of sale of the property, after deduction of the mortgage, sale expenses and the like, was forfeited.[9]
[9]Ibid [16].
With the assistance of Spicer Lawyers, the applicant and its related entities, as well as Xam Le and his wife Sau Thi Le, applied for exclusion under s 20, and ultimately negotiated for the release of all properties from the effect of restraining orders made in S CI 2010 04339 on 11 August 2010. However, as noted, no such application was made in relation to this property and this restraining order.
By email dated 8 April 2013, the applicant’s conveyancer, Mr Bullard, wrote to Ms Spicer and referred to, inter alia, a restraining order affecting the property (‘the Bullard email’). The meaning of this email, and the nature of the attachments, which were not in evidence, was in dispute.[10]
[10]‘Email from Mr Bullard to Ms Spicer 8 April 2013’ exhibited as Exhibit XL-4 to the Affidavit of Xam Le affirmed 3 July 2020.
Xam Le deposes that on 19 November 2014 in a conference in relation to the property Ms Spicer advised him that:
(a) the net proceeds held by Mr McLellan had been forfeited automatically 60 days after the conviction of Thi Le on 23 November 2013;[11]
[11]The reference to 23 November 2013 appears to be a mistake. See above n 1.
(b) any statutory right to seek Exclusion of the Property from Automatic Forfeiture expired a further 60 days after the date of automatic forfeiture;
(c) no further option existed under the Confiscation Act to make an application to the Court to recover the forfeited property;
(d) the only remaining option was to make an application to the Minister; and
(e) Xam Le should obtain independent legal advice as to possible issues of negligence and a claim against Spicer Lawyers.
Ms Spicer’s affidavit exhibits a memorandum dated 19 November 2014 summarising the conference that took place at Spicer Lawyers (‘the Spicer memorandum’). Present at the conference were Nicole Spicer, Xam Le, Thui Nhi Thi Le (Xam Le’s daughter) and Philip McIntyre, a family friend of Xam Le. The memorandum is carefully drafted in order to reflect advice she had provided in the past to the applicant in relation to various exclusion applications, Thi Le and other relevant people involved in the illegal activities and, importantly, the property.[12] The memorandum sets out the following matters in relation to the property:
[12]‘Memorandum of Nicole Spicer dated 19 November 2014’ exhibited as Exhibit NS-1 to the Affidavit of Nicole Spicer affirmed 19 March 2020.
32The final matter discussed in the conference was the property at 283 Station Road, Albanvale, and the funds derived from the sale of that property.
33At the time of our last conference (before the conference on 19 November) with Xam Le on 5 November 2014 he provided us with a Restraining Order in the name of Thi Nho Em Le which was made on the same day as the previous restraining orders by the Honourable Justice Habersberger on 11 August 2010. The proceeding number is S CI 2010 4336.
34This restraining order restrained a range of property, but significantly for present purposes including 283 Station Road, Albanvale.
35My files and correspondence (electronic and paper) do not show this restraining order as having been provided to our office by our clients or otherwise prior to this date. Xam said he did not think he has a copy of the restraining order previously and did not think he had provided us with it.
36The property at Station Road was auctioned and sold on 12 August 2010.
37The property at Station Road was owned by the company Austviet International of which Xam Le was the director.
38The restraining order was a conviction based restraining order.
39The solicitor from the office of Public Prosecutions currently handing these confiscation proceedings is Jaswant Singh. I have made multiple enquiries with him by telephone and email and he has advised that:
(a)the restraining order 4336 was served on Xam Le at Flinders Street Police Station on 12 August 2010 (this information needs to be confirmed. Xam advises that he does not believe that he was ever served with a copy of the order. The order was made on 11 August 2010. Xam says that he was interviewed by the police for the entire day on 10 August 2010. He was not held in custody and denies being present at the Flinders Street Police Station on 12 August 2010).
(b)No ‘declaration of interest’ was lodged by Xam Le or Austviet International with respect to the 4336 restraining order (as opposed to the restraining orders 4339 and 4348 in relation to which both Sau and Xam lodged a ‘declaration of interest’, which tends to support the proposition that Xam was not actually served with the order).
…
50I have advised Xam that there is no further option provided for under the Confiscation Act 1996 [sic] for any application to the courts to recover the forfeited property (money)
51The only remaining option for return of the property in the Confiscation Act is to make application to the Minister for return of the property and this will only be considered if there is ‘no reason why the property should not be returned’.
52I advised Xam that he should seek independent legal advice as to whether his solicitors at Spicer Lawyers and/or Anthony [Bullard] were in any way negligent in failing to make application for exclusion from the restraining order/automatic forfeiture within the relevant time framework. I advised Xam that, in general terms, in my understanding to succeed in a negligence claim for this type of matter he would need to establish:
(a) that the solicitor was negligent; and
(b)that had the relevant steps been taken (ie filing of exclusion applications, etc) then on the balance of probabilities the application would have been successful. This would involve consideration of the Exclusion tests, which have been described in relation to other property above.[13]
[13]‘Memorandum of Nicole Spicer dated 19 November 2014’ exhibited as Exhibit NS-1 to the Affidavit of Nicole Spicer affirmed 19 March 2020, emphasis added.
This advice was confirmed in an email from Ms Spicer to Mr Bullard dated 8 December 2014.[14]
[14]‘Email from Ms Spicer to Mr Bullard dated 8 December 2014’ exhibited as Exhibit XL-5 to the Affidavit of Xam Le affirmed 3 July 2020.
The evidence next reveals that on 26 April 2019 the solicitors at the time, Melasecca Kelly & Zayler, made application to Asset Confiscation Operations for the return of the forfeited money in relation to the property. The application was rejected.
The only evidence in relation to Melasecca Kelly & Zayler’s involvement in this matter is the 26 April 2019 letter to the Asset Confiscation Operations (‘the Melasecca letter’).[15] The Melasecca letter sets out the history of this matter including the making of the restraining order on 11 August 2010, the alleged offender and that the property was included in a list of properties pursuant to s 18 of the Act. The letter goes on to say:
At that time, the client was represented by Nicole Spicer from Spicer Lawyers (‘Ms Spicer’). We are instructed that our client instructed Ms Spicer in relation to the ownership of the Property. Ms Spicer advised, in correspondence dated 9 February 2015 to our client’s solicitor at that time, Anthony Bullard (‘Mr Bullard’), that no Exclusion Application had been filed in relation to the Property, nor to the funds held by the Trustee pursuant to the sale of the property at the time ‘when unbeknowns to me at the time the offender named in the restraining order, Thi Nho Em Le’ was convicted late last year, the moneys re Station Road have now been subject to automatic forfeiture. All relevant time periods have expired for seeking exclusion of the moneys from forfeiture through the court system.
[15]‘Letter from Melasecca Kelly & Zayler to the Department of Justice and Community Safety dated 26 April 2019’ exhibited as Exhibit XL-6 to the Affidavit of Xam Le affirmed 3 July 2020.
The applicant issued proceedings in the County Court on 16 December 2019 against Ms Spicer and Spicer Lawyers Pty Ltd (‘the County Court proceedings’).
The County Court proceedings alleged breach of retainer and negligence by Ms Spicer and Spicer Lawyers in relation to the failure to include the property in the list of properties that were sought to be excluded from forfeiture.
Counsel for the applicant gave evidence from the bar table that between 19 November 2014 and the Melasecca letter Xan Le was:
… consider[ing] his possibility of suing Ms Spicer. He consulted my instructing solicitors about that at some point and there was a period of time I think when he was vacillating, to put it that way, and it was only the imminent exploration of the expiry period that brought to a head the fact that he either had to sue Spicer's for negligence or missed his opportunity, that an application was in fact put. And that application I think was brought after about - well five and a half years or something, so the limitation period was coming up and it was only after the professional negligence civil claim was made that the suggestion was then made that in fact the time for appeal hadn't expired.[16]
[16]Transcript of Proceedings, Austviet International Pty Ltd v Director of Public Prosecutions (Supreme Court of Victoria, S ECI 2020 01370, Incerti J, 11 March 2021), T23.26-31 – T24.1-8 (P Lithgow).
Counsel also conceded that, ‘in order to avoid the possibility that in a professional negligence claim it would be put against us that we should have appealed out of time we've now brought this appeal’.[17]
[17]Ibid, T09.29-31 – T10.01-03 (P Lithgow).
Damien Martin, solicitor for the Director, deposes to a number of matters including the fact that the restraint of the property arose out of an investigation conducted by the Australian Crime Commission, the Victoria Police Drug Taskforce and the Criminal Proceeds Squad, code named Operation Sethra. Mr Martin deposes that he has been informed by Detective Acting Sergeant Rebecca Gunther of the Victoria Police Criminal Proceeds Squad that Victoria Police has disposed of the police brief in relation to the Operation Sethra matter, including transcriptions of the telephone intercept and listening device material, pursuant to the Victoria Police Destruction and Retention Policy, and the Telecommunications (Interception and Access) Act 1979 (Cth) and Surveillance Devices Act 1999 (Vic).
While the Office of Public Prosecutions has retained a copy of the police brief (40 volumes) and depositions (22 volumes), the file is archived off-site across 37 boxes. Due to COVID restrictions, Mr Martin has been unable to inspect that material to say what, if any, evidence from the criminal proceedings has been retained.
Chris Pavlidis, forensic accountant employed by Asset Confiscation Operations, has identified what financial information he would need to properly examine the circumstances of acquisition of the property if the applicant’s exclusion application progressed. Mr Pavlidis deposes that he would need certain information to enable him to identify the source of funds used to acquire the property. It is his belief that a lot of this information may have been destroyed by the relevant financial institutions due to the passage of time. In this regard he specifies a number of categories of bank statements and financial documents, as well as evidence of funds sourced from overseas. Mr Pavlidis deposes that once such information, to the extent that it is still available, has been assembled and provided for analysis, there may be instances where additional material is required.[18]
[18]Affidavit of Chris Pavlidis sworn 27 July 2020, [11]-[12].
Submissions
The applicant
The applicant accepts that it made no application to exclude the property from the restraining order prior to forfeiture, and makes this application to exclude the property from forfeiture many years out of time.
It submits that the delay in making this application to exclude from forfeiture, was due to its lawyer’s oversight and not due to its own neglect.
Further, the applicant claims that it was not served with the restraining order and that the question of service is a ‘red herring’.[19] Xam Le maintains that he was aware of the restraining order at some stage prior to 8 April 2013 which is when Mr Bullard contacted Ms Spicer to, on his account, request her to seek to ‘remove’ the restraining order. Additionally, the applicant asserts that Ms Spicer was on notice of the restraining order from that date and failed to advise it to make an application to exclude within the necessary time period. Reliance is placed upon the email from Mr Bullard to Ms Spicer, the attachments to which were not before the Court, but which it contends included a copy of the restraining order over the property. Ms Spicer contends that she was not on notice until 5 November 2014.
[19]Transcript of Proceedings, Austviet International Pty Ltd v Director of Public Prosecutions (Supreme Court of Victoria, S ECI 2020 01370, Incerti J, 11 March 2021), T06.09 (P Lithgow).
The applicant points to the incorrect advice of Ms Spicer, given verbally on 19 November 2014 and contained in her memo of the same date, that there was nothing it could do to recover the forfeited property other than an application to the Minister. It submits that she was negligent, and has initiated proceedings against her and her firm in the County Court alleging the same.
The applicant submitted that it was reasonable for it to rely on Ms Spicer’s advice. Nevertheless, it took steps to recover the property by engaging Melasecca Kelly & Zayler in April 2019 to prepare the Melasecca letter and seek the recovery of the forfeited monies. The applicant asserts that that firm also gave incorrect advice about the absence of options available to it to recover its money. The applicant analogised this case with the case of Morizio v Director of Public Prosecutions & Ferraro (‘Morizio’)[20] as one where it was the lawyer and not the applicant’s neglect which lead to the delay.
[20]Morizio v Director of Public Prosecution & Ferraro (Supreme Court of Victoria, Osborn J, 27 June 2009) (‘Morizio’).
Finally, the applicant submitted that the Court has a wide discretion to grant leave. Counsel referred me to Finn v DPP[21] and DPP v (Property) Aziz,[22] noting that they were made under s 20 where the Court was expressly given power to consider the interests of justice when determining whether leave should be granted. The applicant broadly argued that s 51 should be construed so as to enable other discretionary factors to be weighed when considering an application for leave. The applicant relied on Director of Public Prosecutions v Logan Park Investments Pty Ltd (‘Logan Park’)[23] as authority for the proposition that any ambiguity in confiscation legislation should be construed against those wishing to curtain fundamental property rights.
[21][2011] VSC 234.
[22][2020] VCC 241.
[23]Director of Public Prosecutions v Logan Park Investments Pty Ltd and Anor Nos. (1995) 37 NSWLR 118 (‘Logan Park’).
It submitted that I should have regard to the following factors which it contended supported the exercise of the Court’s discretion:
(a) that English was Xam Le’s second language;
(b) that the exclusion application has merit, based on what it says was a commercial, arms-length nature of the purchase of the property, and Xam Le’s lack of involvement in the criminal activities of Thi Le; and
(c) that Ms Spicer had made applications on the applicant’s behalf to exclude a number of other properties from restraining orders, and those properties were ultimately excluded by consent of the Director, allegedly because it was accepted that they were not tainted, as defined in s 22. I was asked to infer from this submission that:
(i) There had been no conscious decision by the applicant not to contest the restraint of this property; and
(ii) This property fell within the same category as the other properties, and had an application been made earlier, it too would have been excluded because it was similarly untainted.
The Director
Construction of s 51
The Director submits that the applicant bears the onus of satisfying the Court of the matters in both ss 51(3) and 51(5) of the Act, which operate as preconditions to the grant of leave. If the Court cannot be satisfied of the absence of the applicant’s neglect then the application must be dismissed. In support of this position the Director referred me to case law supporting the interpretation of the word ‘may’ as circumscribing the power or permission to grant leave.[24]
[24]Finance Facilities Pty Ltd v Commissioner of Taxation (Cth) (1971) 127 CLR 106.
The Director distinguished this case under s 51 from the cases under s 20 relied upon by the applicant on the basis that s 20 is expressly adopts a broader consideration of ‘the interests of justice’.
The Director also distinguished this case from that of the New South Wales Court of Appeal in Logan Park on the basis that here, there is no ambiguity in the internal operation of s 51 which would warrant the adoption of a construction that preserves the rights of property owners. The Director respectfully submitted that the decision of Handley JA should be confined to the particular circumstances of that case, and not relied on as authority that the ss 51(3) and 51(5) power to grant leave is discretionary, and exercisable even where neglect is established. [25]
[25]The Director referred me to DPP v Ali (2009) 23 VR 203 and Lee v New South Wales Crime Commission (2013) 251 CLR 196 in support of an argument that I should confine Logan Park to its facts.
The Director emphasised that there is a distinction between ss 51(4) and s 51(5) on the one hand, which relate to the failure to apply to exclude prior to automatic forfeiture, and ss 51(2) and 51(3), which relate to the delay in making of the current application to exclude from forfeiture.
In regard to the meaning of ‘neglect’ in this context, the Director submits that the concept does not entail any moral turpitude; rather, it relates to ‘neglecting to attend to the filing of the application within the time stipulated by the section’.[26]
Application to the facts
[26]Transcript of Proceedings, Austviet International Pty Ltd v Director of Public Prosecutions (Supreme Court of Victoria, S ECI 2020 01370, Incerti J, 11 March 2021), T30.11-12 (R Burton).
It was the Director’s position that the applicant requires leave to apply for exclusion because he had notice of the making of the restraining order. The Director relies on the evidence of the relevant police officers that they served the restraining order on Xam Le on 12 August 2010, which it says should be preferred to the evidence of Xam Le.
Regardless of any formal service, the Director submits that Xam Le can be taken to have been aware of the restraining order as early as 8 April 2013, which is when Mr Bullard emailed him and Ms Spicer.
The Director submits that it cannot be inferred from the Bullard email that Ms Spicer was aware of the restraining order over the property. At the hearing the Director called for the attachments to the Bullard email. The applicant was unable to provide copies of those attachments. The Director submitted that without those attachments it is not possible to exclude the possibility that the Bullard email simply referred to a past application to remove the restraining order from the property for the purpose of conveyancing. Thus, I cannot, on the Director’s submissions, read the Bullard email to convey an instruction to make an exclusion application or a notice of the restraining order.
Further, the Director relies on the Spicer memorandum and her affirmed evidence that she was unaware of the restraining order until Xam Le provided a copy to her on that day.
On either account of the facts, the Director submits that the applicant did have the requisite notice, and has failed to establish that his failure to apply to exclude its interests from the restraining order between 12 August 2010 and 22 March 2014 was not due to his neglect, as required by s 51(5).
The Director’s overarching submission was that I cannot be satisfied that there was no neglect during the requisite periods. Unlike in Morizio the applicant has not given a comprehensive account of the failure to act and has instead provided a granular or selective reference to some evidence relating to some periods of time.[27]
[27]Morizio (Supreme Court of Victoria, Osborn J, 27 June 2009).
The Director submits that the failure to apply under s 20 cannot be attributed to Ms Spicer because the applicant has not established that Ms Spicer was aware of the order before the deadline. The applicant’s evidence is silent as to when and why Ms Spicer was told, and there is nothing before me to discount the possibility that Xam Le made a calculation that it was not worthwhile contesting the inclusion of the property in the restraining order and chose not to bring it to her attention.
The incorrect advice given by Ms Spicer on 19 November 2014 cannot explain Xam Le’s inaction for the entirety of the period from 12 August 2010 to 22 March 2014 especially the 60 day period between conviction and forfeiture.
In relation to s 51(3) the Director submits that there is a paucity of evidence covering the time since Ms Spicer’s advice and the filing of this application on 19 March 2020. It says the applicant’s relative silence as to the steps he undertook during that period is just as consistent with neglect as it is with the explanations that have been advanced by counsel for the applicant.
The Director submits that it cannot be inferred from the fact of the Melasecca letter of 26 April 2019 that Xam Le instructed the firm to provide a second opinion, nor that such an opinion was provided.
The Director submits that, if the court were to consider any discretionary factors in its application of ss 51(3) and 51(5), a discretionary factor in favour of the Director would be the severe prejudice experienced by the Director if leave were granted. The Director relies upon the evidence of forensic accountant Chris Pavlidis from Asset Confiscation Operations to support this submission.
The law
Legislation
Section 16(2) enables the Director to apply for a restraining order in relation to property in a number of circumstances. The Court has the power to determine such an application in accordance with s 18. Where a restraining order is made concerning a person’s property, and the affected person was not on notice of the application, notice of the restraining order must be given.[28]
[28]Confiscations Act 1997 (Vic) s 19.
Pursuant to s 20, a person claiming an interest in property the subject of a restraining order other than the accused, can apply for that interest to be excluded from the restraining order’s operation.[29] Such an application must be made within 30 days of service of notice of the making of the restraining order, if notice was required, or within 30 days of the restraining order being made.[30] As provided in s 20(1B), the Court may extend the period in which an application for exclusion may be made ‘if it is in the interests of justice’ to do so. However, it may not extend the period in respect of property that has been forfeited under the Act.[31]
[29]Ibid s 20.
[30]Ibid s 20(1A).
[31]Ibid s 20(1C); the Court has accepted that such applications for exclusion from a restraining order can be made in the 60 day window between conviction and automatic forfeiture, see DPP v Nguyen; DPP v Duncan [2009] VSCA 147.
In the context of restraining order applications concerning Schedule 2 offences, the Court determines the s 20 application for exclusion in accordance with s 22.
Section 35 provides for the automatic forfeiture of restrained property on conviction in particular circumstances where the restrained property is not the subject of an exclusion order under s 22 or a pending application under s 20. The restrained property is automatically forfeited on the expiry of 60 days after the making of the restraining order or the date of the conviction, whichever is later.
A person other than the accused who claims to have had an interest in automatically forfeited property may make an application under s 51 to have the interest excluded from forfeiture pursuant to s 52. Those sections provide:
51 Application for exclusion from automatic forfeiture
(1)If property is forfeited to the Minister under section 35, a person (other than the accused) who claims to have had an interest in the property immediately before it was forfeited may, subject to subsections (2) and (4), apply to the court that made the relevant restraining order for an order under section 52.
(2)The application must, subject to subsection (3), be made before the end of the period of 60 days commencing on the day on which the property is forfeited to the Minister.
(3)Subject to subsection (5A), the court that made the relevant restraining order may grant a person leave to apply after the end of the period referred to in subsection (2) if it is satisfied that the delay in making the application is not due to neglect on the part of the applicant.
(4)An application for an order under section 52 in relation to an interest in property must not be made by a person who was given notice of—
(a)proceedings on the application for the relevant restraining order; or
(b)the making of the relevant restraining order—
except with the leave of the court that made the relevant restraining order.
(5)Subject to subsection (5A), the court may grant a person leave under subsection (4) to make an application if the court is satisfied that the person’s failure to seek to have that person’s interest in the property excluded from the relevant restraining order was not due to neglect on the part of the applicant.
…
52 Determination of exclusion application – automatic forfeiture
(1)On an application made under section 51, the court may make an order excluding the applicant’s interest in property from the operation of section 35—
(a)if the court is not satisfied that the property in which the applicant claims an interest is not tainted property or derived property but is satisfied that—
(i)the applicant was not, in any way, involved in the commission of the Schedule 2 offence; and
(ii)where the applicant acquired the interest before the commission of the Schedule 2 offence, the applicant did not know that the accused would use, or intended to use, the property in, or in connection with, the commission of the Schedule 2 offence; and
(iii)where the applicant acquired the interest at the time of or after the commission of the Schedule 2 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and
(iv)the applicant’s interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 2 offence or the date that the restraining order was made in relation to the property; and
(v)where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration; or
(b)if the court is satisfied that the property is not tainted property or derived property and that—
(i)the applicant’s interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 2 offence or the date that the restraining order was made in relation to the property; and
(ii)where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration.
(2) If the court makes an order under subsection (1), the court may also make an order declaring the nature, extent and value of the applicant's interest in the property.
Section 51 set outs two circumstances in which a person requires leave of the Court to apply for an exclusion from automatic forfeiture. First, if a person had notice of the restraining order they must seek leave. The Court ‘may’ grant leave if satisfied that the person’s failure to seek to have that person's interest in the property excluded from the relevant restraining order was not due to neglect on the part of the applicant’.[32] Secondly, if a person applies for exclusion more than 60 days after automatic forfeiture, they must seek leave.[33] The Court ‘may’ grant leave if it ‘is satisfied that the person’s delay in making the application is not due to neglect on the part of the applicant’.[34]
[32]Confiscations Act 1997 (Vic) s 51(5).
[33]Ibid s 51(2)-(3).
[34]Ibid s 51(3).
Thus, in circumstances where the person had notice of the restraining order, the Court is required to consider their conduct in relation to two distinct periods: before (s 51(5)) and after (s 51(3)) automatic forfeiture. The applicant is required to prove, on the balance of probabilities, that they were not neglectful during both those times.
‘Notice’ is not defined in the Act. However, s 137 does provide:
(1) For the purposes of this Act, a document may be served on, or given to, a person—
…
(b)if the person is a company incorporated under the Corporations Act—
(i)by delivering it personally to the registered office of the company; or
(ii)by sending it by post to the registered office of the company; or
(iii) in any other way that service of documents may be effected on a body corporate; …
Under s 109X of the Corporations Act 2001 (Cth) a document may be served on a company by delivering a copy personally to a director.
Judicial consideration of s 51 of the Act
The nature of the Court’s statutory discretion to grant leave under s 51(5) and s 51(3) respectively, has not been the subject of extensive judicial consideration.
The applicant referred me to the unreported decision of Osborn J made on 27 June 2009 in Morizio, in which this Court heard an urgent application for leave to apply under s 51.[35] Justice Osborn held that the applicant had not been neglectful, despite making an application almost a year out of time, and granted leave. The Morizios were the grandparents of Mr Ferraro, who was accused and later convicted of drug offences. They claimed an equitable interest in one of Ferraro’s restrained properties. The Morizios consulted Ferraro’s lawyer about the property, who told them to wait until after Ferraro was convicted to seek to exclude their interest. The lawyer did so relying on a practice of the County Court that was subsequently overturned. In March 2008 Ferraro plead guilty. He was sentenced in March 2009. On 27 April 2009 the Morizios applied to exclude their interest from the restraining order. However, due to the operation of s 35, the property had already automatically forfeited. Accordingly, they filed a fresh application for leave to apply for exclusion from forfeiture under s 51 on 12 May 2009.
[35]Morizio (Supreme Court of Victoria, Osborn J, 27 June 2009).
Significantly, Osborn J did not expressly consider the question of whether the applicant, as someone with notice of the restraining order as early as June 2007, was neglectful in failing to seek to have her interest excluded from the restraining order as required by s 51(5). However, it is in keeping with his Honour’s findings that he was satisfied that any delay was due to his solicitor’s misapprehension of the limitation period, and not due to neglect on her part. His Honour interpreted the test under s 51(3) as follows:
The power to grant an extension of time is conditioned by a requirement that the delay in making the application is not due to neglect on the part of the applicant. In addition the power is itself discretionary.
Accordingly two questions arise for me. Firstly whether the pre condition [sic] has been satisfied and, secondly, whether if it has been satisfied the court should exercise its discretion in favour of the applicants.[36]
[36]Morizio (Supreme Court of Victoria, Osborn J, 27 June 2009), [14]-[15].
Osborn J was satisfied that the Morizios reasonably relied on the advice of their lawyers in refraining from making an earlier application to exclude, and that the lawyers so advised relying on the prevalent view of the interpretation of the Act at the time. Turning to the second question, his Honour noted that there was an arguable claim for exclusion articulated in the affidavit filed, and that, couple with the circumstances to which his Honour had already referred, supported the conclusion that ‘justice demands that the court exercise its discretion’.[37]
[37]Ibid [19].
In Le v DPP[38] the County Court heard an application for leave, initially brought under s 20, then s 51 of the Act. In that case, a restraining order was made over the property of Roy and Phan Thi Le on 18 September 2003. Mr Le pleaded guilty for drug trafficking offences on 1 February 2005. On 11 April 2005 Mrs Le, through her solicitors, made an application under s 20 to exclude her property from the restraining order. She gave evidence that she was not given notice of the making of the restraining order, and only became aware of it on or around 18 February 2005, being the date on which Mr Le was sentenced. The application under s 20 was made 69 days after conviction, and was thus made out of time, given that the property was automatically forfeited after 60 days. After initiating her application in the County Court, Mrs Le sought to amend her application to be one of exclusion from forfeiture under section s 51, which, by that stage, was also out of time.
[38]Le v DPP (County Court of Victoria, Campbell J, 11 November 2005); upheld on appeal in DPP v Le (2007) 15 VR 352 and reversed on appeal to the High Court of Australia in Director of Public Prosecutions v Le (2007) 232 CLR 562, although the finding on the granting of leave remains undisturbed.
The Court held that Mrs Le’s solicitors wrongly assumed that the date of conviction was the date on which Roy Le was sentenced. Given that she was a migrant with little or no spoken or written English, Campbell J attributed any neglect to her solicitors alone, finding:
[i]n the circumstances of this case, I am not prepared to equate the misunderstanding as to the date of conviction made by her solicitor to “neglect” on her part in terms of s. 51(3) of the Act.[39]
[39]Le v DPP (County Court of Victoria, Campbell J, 11 November 2005), [24]; Campbell J did not expressly consider s 51(4) and (5). However, his finding that Phan Thi Le was not served with the restraining order is consistent with a ruling that those provisions were not applicable on the facts.
In the Queensland case of Christensen v DPP[40] a similar provision was considered, albeit there, the language adopted is ‘may only’. On the facts there, the applicant’s husband was charged and ultimately, in November 2001, convicted of drug charges. Property including the matrimonial home, was restrained and automatically forfeited six months after he was convicted. The applicant claimed an interest in the property. She was aware of the restraining order but did not apply to exclude her interest from the restraining order prior to forfeiture. She applied, belatedly, to exclude her interest from the forfeiture after obtaining inaccurate legal advice in January 2002. Justice Holmes held that:
[40][2002] QSC 365.
Given the general principles of construction already referred to, I do not think that, in the absence of clear language to that effect, the negligence of the applicant’s solicitors should be attributed to her. An approach similar to that in the limitations cases is appropriate: that is to say, it is the applicant’s acts or omissions which require examination to determine whether they reveal neglect, not the conduct and competence of those from whom she sought advice.
…
In my view, the applicant’s conduct in seeking advice from the solicitor acting on her behalf, relying on his advice and maintaining monthly contact with him was reasonable. Her failure to make application for amendment of the restraining order was the result of reasonable reliance on her solicitor’s advice and cannot be construed as neglect.[41]
Relevantly, her Honour then turned to considering other factors, stating:
No reason was advanced by the Crown as to why leave should not be given if the discretion under s 29(6) were available; and given the applicant’s position as the care giver for her children and the implications for her of loss of any interest she may have in the assets the subject of forfeiture, it seems to me in other respects an appropriate case for the granting of leave.[42]
[41]Christensen v DPP [2002] QSC 365 [20], [22].
[42]Ibid [22].
Findings and Analysis
Construction of s 51
The parties differed in their interpretation of the power to be exercised by the Court under s 51. However, as I outline below, nothing ultimately turns on that question of statutory interpretation in this case.
The applicant relied on the Court’s reasoning in Morizio, where Osborn J held that s 51(3) involves a two-stage test, requiring the Court to be satisfied that:
(a) the applicant was not neglectful, and
(b) the Court should exercise a discretion in favour of the applicant.
On that analysis, in circumstances where the Court is satisfied there was no neglect, the Court has a residual discretion to refuse an application on other grounds. The applicant’s position is arguably more restrictive of the rights of applicants than the Director’s, who submitted that the power to extend time under s 51 is a mandatory one to be exercised upon satisfaction of the absence of neglect.
I did not understand either party to argue that, in the event that I could not be satisfied that the applicant was not neglectful, I was otherwise empowered by s 51 to exercise a residual discretion in the applicant’s favour.
As detailed below, I am not satisfied that the applicant was not neglectful. As such, it was not necessary for me to determine whether the two-stage test adopted by Osborn J, or any other residual discretion, applies to applications of this kind.
However, in the event that Morizio stands for the proposition that I can consider the additional factors counsel for the applicant put to me in support of any finding of the lack of neglect, or to cut against any finding of neglect, I note that the applicant would have faced the barrier of countervailing considerations, such as the considerable prejudice to the Director caused by the passage of time. Such factors would have led me to conclude that it was not otherwise in the interests of justice to grant the applicant leave.
Application to the facts
Findings and analysis in relation to s 51(5) of the Act
The real essence of the dispute before me was whether or not the applicant was neglectful in accordance with s 51(3) and (5).
Having considered the totality of the evidence and submissions, I am of the view that the evidence relied upon by the applicant is insufficient to satisfy the Court on the balance of probability that its delay in failing to apply for exclusion of its interest in the property from the restraining order was not due to neglect on the applicant’s part.
The first matter is whether Xam Le, as director of the applicant, was personally served with the restraining order on 12 August 2010. Xam Le denies being served and cannot recall the circumstances in which the order was brought to his attention.[43] The Director relies on the evidence of Kelvin Brown and Dale Petri. Dale Petri’s evidence is that he personally served the order on Xam Le while he was in custody at the St Kilda Road Complex and that he explained the nature of the document to Xam Le. There is a contemporaneous note of the personal service of the restraining order on Xam Le in the police diary.[44] There is no evidence that Xam Le did not understand what was explained to him. In fact the evidence demonstrates that Dale Petri and Kelvin Brown organised for an interpreter to attend on the same day for Xam Le’s wife. I can infer that they would have done the same for Xam Le if necessary or it was requested.
[43]Affidavit of Xam Le affirmed 3 July 2020, [9]-[10].
[44]‘Copy of Police Diary Notes made on 12 August 2010 by Kelvin Brown’ exhibited as Exhibit KB-1 to the Affidavit of Kelvin Brown sworn 28 July 2020.
In circumstances where Xam Le is unable to recall the circumstances when he first came into possession of the restraining order and Dale Petri and Kelvin Brown’s evidence, I am satisfied that on balance of probabilities Xam Le was personally served with the restraining order on 12 August 2010 and the order was explained to him. As such, the applicant was on notice of the making of the restraining order for s 51(4) from 12 August 2010.
Aside from my finding of formal service upon Xam Le, it is also highly implausible that the applicant was unaware of the restraining order, given that the making of the order meant that the sale of the property at auction proceeded with the Trustee stepping into the shoes of the vendor, and where the proceeds of the sale were not received by the applicant but by the Trustee.
The fact of service does not bring the enquiry to an end. I must next determine if the applicant was neglectful in failing to make an application under s 20.
The applicant submits that it was not neglectful because it reasonably relied on its solicitor, Spicer Lawyers, to act to seek to exclude the property from the restraining order.
The applicant relies on the Bullard email dated 8 April 2013. The email was sent eight months before the proceeds were forfeited. The email was sent to Ms Spicer who was at the time acting for the applicant in relation to having various properties released from restraining orders connected to the illegal activities of Thi Le and Sau Thi Le. The 8 April 2013 email was also sent to Xam Le. Xam Le’s evidence is that Ms Spicer did not advise him to apply to exclude the applicant’s interest in the property.
The Bullard email makes reference to attachments including:
1Application to remove Restraining Order provided in relation to the property at 283 Station Road, Albanvale (Deer Park). There are attached copies of the orders made and I believe that these are all the orders I have seen in relating to the Station Road property. …[45]
The attachments were not before the Court. In the course of the hearing counsel for the Director called for the attachments. The applicant was not able to respond to the call for the attachments and there was no further evidence before the Court on this matter. I note, however, that counsel for the applicant indicated from the bar table that Mr Bullard was unable to access the electronic attachments.
[45]‘Email from Mr Bullard to Ms Spicer 8 April 2013’ exhibited as Exhibit XL-4 to the Affidavit of Xam Le affirmed 3 July 2020.
On a plain reading of the email it seems Mr Bullard provided information to Xam Le and Ms Spicer about restraining orders relating to the property which the applicant submits included the restraining order relevant to this application.
Against this position is Ms Spicer’s direct evidence in a carefully drafted memorandum in the context of a potential professional negligence claim against her and Spicer Lawyers. The memorandum records that Ms Spicer’s files and correspondence, electronic and paper, did not show the restraining order as being provided to her office by the applicant or Xam Le or otherwise prior to 19 November 2014.[46]
[46]‘Memorandum of Nicole Spicer dated 19 November 2014’ exhibited as Exhibit NS-1 to the Affidavit of Nicole Spicer affirmed 19 March 2020.
As at 8 April 2013 Xam Le and Ms Spicer were in receipt of Mr Bullard’s email and attachments. There is no evidence from Xam Le as to what instructions he provided or what advice he received after the 8 April 2013 email. Ms Spicer’s evidence is also silent as to Xam Le’s instructions in relation to the issue of applying for any exclusion of the applicant’s interest from the restraining order. The evidence is simply silent as to Xam Le’s instructions or any steps taken by him.
The problem is that on the state of the evidence I cannot determine whether the delay was due to Ms Spicer’s inaction or Xam Le’s neglect. I have found that Xam Le was personally served on 12 August 2010 and therefore was aware of the restraining order. He was also aware of the Bullard email and its attachments. There is insufficient evidence to explain why the application was not made in relation to the property while there were applications made in relation to other properties in which the applicant had an interest, and that were ultimately returned to the applicant. There are gaps in the evidence which would require me to speculate on what, if any, instructions Xam Le gave to Ms Spicer. In the absence of the attachments or any evidence in relation to the content of those attachments, I am again required to speculate on what was provided to Ms Spicer by Mr Bullard and what Ms Spicer’s knowledge was at that point in time in relation to the property and any restraining orders.
In conclusion, the applicant has failed to discharge its onus to explain its omission to bring any application for its interest in the property or the proceeds from the operation of the restraining order from 12 August 2010 until 22 March 2014, and in particular from 8 April 2013 until 22 March 2014.
Findings and analysis in relation to s 51(3) of the Act
I am next called upon to determine whether there is a lack of neglect by the applicant in its delay in making this application under s 51.
Xam Le does not provide any evidence to explain why there was a delay from 19 November 2014 until 19 March 2020, six years later, when the current application was filed with this Court. It is also relevant that Ms Spicer wrote on 8 December 2014 to Mr Bullard[47] that she had not been informed of Thi Le’s conviction for heroin trafficking.
[47]‘Email from Ms Spicer to Mr Bullard dated 8 December 2014’ exhibited as Exhibit XL-5 to the Affidavit of Xam Le affirmed 3 July 2020.
The applicant relies on the Melasecca letter, in particular, the following paragraph:
At that time, our client was represented by Nicole Spicer from Spicer Lawyers (‘Ms Spicer’). We are instructed that our client instructed Ms Spicer in relation to the ownership of the Property. Ms Spicer advised, in correspondence dated 9 February 2015 to our client’s solicitor at that time, Anthony Bullard (‘Mr Bullard’), that no Exclusion Application had been filed in relation to the property, nor to the funds held by the Trustee pursuant to the sale of the property at the time ‘when unbeknowns to me at the time the offender named in the Restraining Order Thi Nho Em Le’ was convicted late last year, the moneys re Station Road had now been subject to automatic forfeiture. All relevant time periods have expired for seeking exclusion of the moneys from forfeiture through the court system. …
The correspondence dated 9 February 2015 referred to in the Melasecca letter is not in evidence before the Court. However, the email from Ms Spicer to Mr Bullard dated 8 December 2014 which in its heading refers to ‘Due by: Monday, 9 February 2015 11:30am’ says the following:
I investigated this matter also when I saw Xam, about a fortnight ago – no exclusion application had been filed in relation to the funds held by Andrew McLellan pursuant to the sale of Station Road at the time when, unbeknowns to me at the time, the offender named in the restraining order (Thi Nho Em Le) was convicted late last year.
The moneys re Station Road had now been subject to automatic forfeiture. All relevant time periods have expired for seeking exclusion of the moneys from forfeiture through the court system.
The Melasacca letter appears to be no more than a recitation of what was contained within the email from Ms Spicer to Mr Bullard dated 8 December 2014.
The applicant invites me to infer from the Melasecca letter that he took reasonable steps to pursue exclusion, albeit ‘after some time’,[48] and that the letter is a further example of incorrect advice given to the applicant.
[48]Transcript of Proceedings, Austviet International Pty Ltd v Director of Public Prosecutions (Supreme Court of Victoria, S ECI 2020 01370, Incerti J, 11 March 2021), T09.01 (P Lithgow).
However, the paragraph can be read as simply repeating what Ms Spicer said in an earlier email to Mr Bullard. Further, the letter is between Melasecca Kelly & Zayler and Asset Confiscation Operations, not between the solicitors and Xam Le. There is no evidence from Melasecca Kelly & Zayler or any file notes, emails or letters to Xam Le in which the alleged incorrect advice given by them is referred to beyond what was stated in the Melasecca letter.
What is clear is that the Spicer memorandum and Ms Spicer’s email dated 8 December 2014 each refer to Xam Le’s option to bring a negligence claim against Spicer Lawyers for the failure to bring any application for exclusion from forfeiture in relation to the property.
In oral submissions counsel for the applicant conceded that in order to avoid the possibility that in a professional negligence claim it could be put against the applicant, that the applicant should have appealed out of time, the applicant has now brought this appeal.[49]
[49]Transcript of Proceedings, Austviet International Pty Ltd v Director of Public Prosecutions (Supreme Court of Victoria, S ECI 2020 01370, Incerti J, 11 March 2021), T9.27-03 - T10.01-31 (P Lithgow).
The applicant chose to commence proceedings against Spicer Lawyers in the County Court of Victoria on 16 December 2019. Given counsel’s comments and the further delay in bringing this application until March 2020, it appears that the applicant has taken this step to mitigate its loss for the purpose of the claim against Ms Spicer and Spicer Lawyers.
Whatever the reasons are for the applicant bringing this current application, I consider the evidence relied upon by the applicant is insufficient to satisfy the Court under s 51(3) of the Act that its delay in failing to apply for exclusion of its interest in the proceeds from forfeiture by the application expiry date was not due to neglect on the applicant’s part.
Conclusion
The application must fail as the applicant has not satisfied either precondition set out in s 51(3) and s 51(5) of the Act.
Subject to any submissions parties make, I consider the appropriate order as to costs to be that the applicant pays the respondent’s costs of the application.
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