Commissioner of Australian Federal Police v Ruzehaji (No 3) - [2014] SADC 62

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COMMISSIONER OF AUSTRALIAN FEDERAL POLICE v RUZEHAJI & ANOR (No 3)
[2014] SADC 62
Decision of His Honour Chief Judge Muecke
24 April 2014
PROCEDURE
Application by plaintiff on 3 September 2013 for examination orders under the Proceeds of Crime Act 2002 (Cth) in respect of six named persons who are non-parties. Application by first defendant on 19 September 2013 to set aside an examination order in respect of him and to stay proceedings until criminal proceedings against him are determined.
Held:
Application for examination orders granted.
Applications to set aside an examination order in respect of the first defendant and to stay the proceedings refused.
Proceeds of Crime Act 2002 (Cth) s5, s42, s180, s319, referred to.
Lee v New South Wales Crime Commission [2013] HCA 39; DPP (Cth) v Loades [2004] SADC 158; Commissioner AFP v Hull [2013] NSWSC 1350; X7 v Australian Crime Commission & Anor [2013] HCA 29; Brink's Mat Ltd v Elcombe & ors [1988] WLR 1350; Qing Zhao & Xing Jin v The Commissioner of the Australian Federal Police [2013] VCC Ruling , considered.

COMMISSIONER OF AUSTRALIAN FEDERAL POLICE v RUZEHAJI & ANOR (No 3)
[2014] SADC 62

By order of his Honour Judge Muscat made on 20 September 2013 two applications were listed for hearing in this court on 6 November 2013. Those applications were made by the plaintiff Commissioner of the Australian Federal Police (“the Commissioner”) filed on 3 September 2013, and by the First Defendant Amir Sabit Ruzehaji (“Mr Ruzehaji”) filed on 19 September 2013.
By the first the Commissioner applied for orders, pursuant to s180 of the Proceeds of Crime Act 2002 (Cth) (“the Act”), that six natural persons be examined about the affairs of Mr Ruzehaji and Ruzehaji Enterprises Pty Ltd (“Ruzehaji Enterprises”) and that two of those persons be examined, in addition, about their own affairs. That application was made pursuant to s182 of the Act. That application was said to be to Mr Ruzehaji and Ruzehaji Enterprises, care of Dadds Jandy Lawyers and the six natural persons named in the application.
By the second Mr Ruzehaji relevantly sought the following orders:
·An order setting aside Order 7 of the orders made by me in this matter dated 28 November 2012.
·That that order be made nunc pro tunc effective from 19 December 2012.
·That these proceedings otherwise be stayed pending the determination of the criminal proceedings with which Mr Ruzehaji has been charged.
I have set out in detail the background to the hearing of these two applications in this court and orders made relating to them and the action generally in two sets of reasons I publish contemporaneously with these reasons. These reasons should be read in conjunction with those other two sets of reasons.
On 28 October 2013 I refused an application to adjourn the hearing of these two applications.
On 4 November 2013 there were filed in court an Outline of Argument and an Amended Outline of Argument of Mr Ruzehaji and Ruzehaji Enterprises.
Before coming to the latter I refer to the orders made by me on 28 November 2012. The sealed order refers to “RESTRAINING ORDER” on its front sheet. The next two pages refer to the orders that I made, after noting that the Commissioner had given an undertaking on behalf of the Commonwealth of Australia to abide by any order that the court may make as to damages should the court be of the opinion that any person has sustained damages by reason of the Order.
There are a number of orders in my Order that can compendiously and conveniently be referred to as “restraining orders”. They restrain the disposition of or dealing with certain property. There are other orders which might be described as orders ancillary to the restraining orders. There is then an order that relates to the giving of notice of the Order to Mr Ruzehaji and Ruzehaji Enterprises. There is then an order directed to Mr Ruzehaji that he swear a statement on oath as to interests and liabilities in property. This order can conveniently be referred to as “the statement on oath order”. There is then an order that Mr Ruzehaji be examined about his affairs and the affairs of Ruzehaji Enterprises. This last order can conveniently be referred to as “the examination order”.
Accordingly, we have restraining orders, orders ancillary to the restraining orders, the statement on oath order, an examination order, and an order as to notice of the Order.
In the Amended Outline of Argument filed on behalf of Mr Ruzehaji and Ruzehaji Enterprises it is submitted that Mr Ruzehaji’s application was to set aside the examination orders made by me on 28 November 2012. I only made one examination order.
In the outline it is submitted that the Commissioner’s application for examination orders against third parties depends on the validity of the orders I made. It is submitted that to the extent the orders I made are invalid then so are any further examination orders made under s 180 of the Act. Section 180 of the Act provides that if a restraining order is in force the court that made the restraining order may make an examination order for the examination of any person, including certain people. The Commissioner sought examination orders in respect of six people on the basis that restraining orders that I made were in force. In his application Mr Ruzehaji sought to set aside the examination order as to himself that I made on 28 November 2012. He did not seek by his application to set aside any order other than the examination order (Order 7). Rather, he sought an order staying the proceedings in the District Court pending determination of criminal proceedings against him.
What Mr Ruzehaji and Ruzehaji Enterprises seem to be submitting in their outline is that I should revoke the restraining orders I made and the examination order I made. They submitted that on this application the “examination orders” should be set aside; or that these proceedings be stayed as an abuse of process, or in the alternative, the examination order be stayed as an abuse of process pursuant to the court’s inherent power to do so. They argued, in addition, that what was referred to as the “material non-disclosure” by the Commissioner on the ex parte hearing, including the need for an ex parte hearing and the urgent nature of the application, were relevant.
Mr Ruzehaji and Ruzehaji Enterprises also submitted in the outline that the civil proceedings in this court should be stayed where there was a real prospect of substantial prejudice to Mr Ruzehaji in any criminal proceedings. That submission was developed in the outline. They referred to two High Court decisions delivered since 28 November 2012. They were the decisions in X7 and Lee. I shall return to these.
In the outline it is submitted that the construction of the Act for which Mr Ruzehaji and Ruzehaji Enterprises contend does not give rise to a constitutional argument. They contend that s319 of the Act does not limit in any way the inherent power of the court to protect the integrity of its own processes and to grant a stay if there is an abuse of process. They contend that s 319 merely makes clear that the commencement of criminal proceedings will not necessarily result in proceedings under the Act being stayed.
As to the Commissioner’s application to examine six persons Mr Ruzehaji and Ruzehaji Enterprises submitted that s180(a), (b) and (c) of the Act should be read as being an exhaustive list of the persons to whom a s180 examination order may be directed. They submitted that s180 confers a general discretion on this court which must be exercised consistently with the policy and object of the Act. They submitted that the material provided by the Commissioner in support of the orders sought fails to show that the persons named fall within the exhaustive statutory criteria in s180(a), (b) or (c) of the Act, and in any event the material provides an insufficient basis upon which the court could be satisfied to exercise the relevant statutory power in s180 of the Act in accordance with the policy and object of the Act.
In the outline Mr Ruzehaji and Ruzehaji Enterprises submit that my examination order should at least be set aside in the interests of justice and no further examination should be conducted having regard to the pending criminal charges and the fact that this court does not retain any discretion in regard to the conduct of the examination.
On 5 November 2013 the Commissioner filed an Outline of Argument. That was said to be in opposition to Mr Ruzehaji’s application of 19 September 2013 and in support of the Commissioner’s application of 3 September 2013.
In the outline the Commissioner stated that, as at 5 November 2013, Mr Ruzehaji and Ruzehaji Enterprises had not sought an order from the Supreme Court to stay the proceedings before this court.
It is submitted that the proceedings commenced by the Commissioner are issued in the civil jurisdiction of this court. The objects of the Act are set out in the outline. A decision of the High Court of Australia is referred to. That is Lee v New South Wales Crime Commission [2013] HCA 39. It is submitted that in that case Gageler and Keane JJ, at [326], said that confiscation proceedings:
[A]re not criminal proceedings or proceedings preliminary to or in aid of criminal proceedings. They are separate civil proceedings, able to be commenced and continued to completion independently of any criminal proceedings that might be brought in respect of the criminal activity the suspicion or probability of which is alleged to form the basis of the confiscation order sought.
The Commissioner submitted that the proceedings in this court are not proceedings which are “adjunct to the parallel criminal investigation” as had been submitted before this court by Mr Abbott on 20 September 2013. It was submitted that it is erroneous to treat the exercise of powers under the Act as undertaken in furtherance of a criminal investigation or a prosecution. It was submitted that:
It is clear from the Act that the scheme for the confiscation of assets is intended to operate outside and completely independent of the criminal law process. Its intention is to deprive those involved in serious crime related activity of illicitly obtaining assets and profits. It is a regime directed to confiscating unlawfully acquired property, without first requiring a conviction.
(The outline refers to the case of DPP (Cth) v Loades [2004] SADC 158, at [2].)
The Commissioner commented on what now appeared to be the contention of Mr Ruzehaji and Ruzehaji Enterprises that all of the orders I made on 28 November 2012 should be set aside rather than just the examination order as is sought by the application of Mr Ruzehaji of 3 September 2013. The Commissioner made seven points as to why such relief should not be given by me.
The Commissioner then made submissions regarding the application by Mr Ruzehaji to stay the proceedings in this court pending his criminal trial. Section 319 of the Act was set out as follows:
The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which a court may stay proceedings under this Act that are not criminal proceedings.
The Commissioner does not contend that that section is a bar to me exercising a discretion to stay proceedings commenced under the Act. I may, and I may take into account a number of matters in exercising that discretion. I may have regard to the existence of criminal proceedings as part of the exercise of my discretion. Section 319 of the Act does, however, prevent me from staying proceedings solely on the ground of the existence of criminal proceedings.
The Commissioner contended that I should adopt the approach to s319 of the Act as set out by Keane and Gageler JJ in Lee’s case at [326]. The following references were set out:
3.9 Properly understood, s319:
[I]s a statutory abrogation of the rule in Smith v Selwyn. Stated simply, the rule in Smith v Selwyn was that a civil action for damages, which could not succeed except by proof of a felony, should be stayed for so long as the defendant has not been prosecuted for that felony, unless a reasonable excuse has been shown for his not having been prosecuted.
...
Reflecting common law developments, ... [it’s effect] is that a person charged with an offence is not entitled, as a matter of right, to have the civil proceedings stayed because of pending criminal proceedings.
3.10 Further s319 provides:
[U]nequivocal confirmation that the ... Act has adverted to the possibility of concurrence between [examination] proceedings ... and criminal proceedings against the examinee.
3.11 The purpose of s319:
[I]s not avoided by arguing that the real ground is the risk of prejudice to a criminal proceeding, rather than the fact that such a proceeding is on foot. The latter should be understood to encompass the former and any variation of it.
3.12 Section 319 reflects a deliberate policy decision taken by the legislature to address competing policies:
(a)     The desirability of allowing confiscation proceedings to run in parallel to criminal proceedings, thus reducing the risk of dissipation of assets prior to forfeiture; and
(b)     The need to ensure that an accused is only convicted following a fair trial.
3.13 Applying s319, the Court may nevertheless stay proceedings under the Act, if to allow their continuance:
(a)     “will result in an unfair trial”. For a Court to form the view that such a consequence ‘will’ follow, the defendant must adduce cogent evidence of it; or
(b)     poses at least ‘a real risk, as opposed to a remote possibility of ... an interference’ with the administration of justice. (footnotes omitted)
The Commissioner submitted that I may stay these proceedings if to allow their continuance will result in an unfair trial or that it will pose at least “a real risk as opposed to a remote possibility of ... an interference” with the administration of justice. It was submitted that Mr Ruzehaji has adduced no evidence, and advanced no contention, in support of his application to stay these proceedings, other than to allude to the mere fact that he has been charged.
The Commissioner submitted that I cannot refuse to order the examination of a person for reasons only that criminal proceedings against that person have been commenced but are not completed and that the subject-matter of the examination will overlap with the subject-matter of those proceedings. The Commissioner here cites Gageler and Keane JJ at [269] in Lee’s case.
As to the Commissioner’s application for further examination orders the Commissioner relies, in the outline, upon the affidavit of Federal Agent Johnson sworn on 2 September 2013. It is submitted that that affidavit provides the factual basis for a finding that the six persons named in that application can give evidence about the affairs of relevant people for the purposes of s180 of the Act. It is submitted that the suggestion that the list in s180(1)(a), (b) and (c) is exhaustive lacks any proper foundation and is without substance. It is submitted that those contentions ignore the fact that the provision makes clear that the court may make an order for the examination of “any person”, including those persons identified. Reference is made to the Explanatory Memorandum of the Act where this appears: The person to be examined may also include lawyers, accountants, bankers and other advisers of any of the persons referred to in paragraphs 180(1)(a)-(c). It was submitted that such an approach to s180 of the Act is consistent with that of Beech-Jones J in Commissioner AFP v Hull [2013] NSWSC 1350.
The Commissioner submitted that the affidavit of Federal Agent Johnson demonstrates that Mr Ruzehaji himself has sworn as to matters that demonstrate that there is a sufficient and proper basis for the court to make the orders sought pursuant to s180 of the Act.
I summarize things as they stood before I came to hear submissions on 6 November 2013.
I had before me two Interlocutory Applications.
The first was an application by the Commissioner filed 3 September 2013. By that application the Commissioner sought examination orders in respect of six persons, none of whom was Mr Ruzehaji. Mr Ruzehaji had been examined on 25 March 2013 and was due to be further examined pursuant to the Act. Those examinations were authorized by an examination order I had made on 28 November 2012. Section 180 of the Act provides that I can only make those orders for examination of those six persons if there exists a restraining order or orders. The orders to examine those six people sought by the Commissioner are based partly on what Mr Ruzehaji said during his examination on 25 March 2013.
The Commissioner had submitted that a restraining order was in place. There existed, from Mr Ruzehaji himself, a sufficient and proper basis for the court to make orders for the examination of those six persons and Mr Ruzehaji does not seek an order by application filed in this court to revoke or set aside the restraining order. The only order I made on 28 November 2012 which Mr Ruzehaji seeks to set aside is the examination order in respect of himself.
Mr Ruzehaji had submitted that I should revoke the Restraining Order that I made on 28 November 2012 and the examination order I made on that day. Mr Ruzehaji had filed no application in this court that the Restraining Order be revoked. He submitted that I should revoke the Restraining Order as that would remove the statutory basis for making examination orders in respect of the six persons the Commissioner sought orders to examine.
Mr Ruzehaji submitted that I cannot make orders for the examination of those six persons because they do not fall within sub-paragraphs (a), (b) or (c) of s180 of the Act, which is an exhaustive list of persons to whom examination orders may be directed.
The second application before me was an application by Mr Ruzehaji filed on 19 September 2013. In that application Mr Ruzehaji sought two orders. First that I set aside the examination order as to himself that I made on 28 November 2012, and that I set it aside nunc pro tunc from 19 December 2012. The second order he sought was that the proceedings in this court be stayed pending determination of criminal proceedings against himself.
As indicated above it seemed that Mr Ruzehaji was submitting that I should set aside all the orders I made on 28 November 2012, not just the examination order of himself.
Mr Ruzehaji submitted that all my orders should be set aside, or alternatively stayed, as an abuse of process pursuant to this court’s inherent power. In addition, Mr Ruzehaji submitted that I should do so because I should be satisfied there was material non-disclosure by the Commissioner at the time I made the orders on 28 November 2012.
As to the second order sought by Mr Ruzehaji it was submitted that there is a real prospect of substantial prejudice to Mr Ruzehaji in criminal proceedings instituted against him if the proceedings in this court be not stayed. He submitted that the contention does not give rise to a constitutional argument by virtue of s319 of the Act. He submitted that that section does not limit the inherent power of the court to protect its own processes and to grant a stay if there is an abuse of process.
As to the first order sought by Mr Ruzehaji the Commissioner submitted that there were seven reasons why I should not set aside all the orders I made on 28 November 2012. The Commissioner submitted that Mr Ruzehaji had not made out a case for this court to exercise its discretion to set aside the examination order of Mr Ruzehaji made on 28 November 2012.

The Commissioner submitted that Mr Ruzehaji had not made out any case in respect of any alleged material non-disclosure by the Commissioner on 28 November 2012.
As to the second order sought by Mr Ruzehaji the Commissioner submitted that whilst I may exercise a discretion to stay these proceedings, s319 of the Act prevents me from staying them solely on the ground of the existence of criminal proceedings. The Commissioner submitted that I may stay these proceedings if to allow their continuance will result in an unfair trial or that it will pose a real risk, as opposed to a remote possibility, of interference with the administration of justice. It was submitted that Mr Ruzehaji had not shown that. He had done no more than alluding to the mere fact that he has been charged with criminal offences.
The first thing that happened on the morning of 6 November 2013 was that Mr Abbott informed me that he intended to make an application to me to adjourn the hearing set for that day. But first he asked me if I had considered the propriety of my sitting that day. I replied “Yes”. He said: “In circumstances where one of the orders we seek to have made by this court is to set aside the order that you made on 28 November 2012 in respect of the examination order, which was order No. 7 you made”. Mr Abbott said that if I was going to proceed to sit on the matter and hear his clients’ application then his first application was that I adjourn these proceedings until his clients’ appeals had been heard.
Mr Abbott then informed me that the day before this day his clients had instituted an appeal against the orders I made on 28 October 2013. They were orders that I had made on the Commissioner’s application that I provide reasons concerning the orders I made on 28 November 2012, and on the application by Mr Ruzehaji and Ruzehaji Enterprises to adjourn the hearing set for this day, 6 November 2013, because of the Notice of Appeal to the Full Court of the Supreme Court against my Orders 1 to 7 of 28 November 2012 filed on 14 October 2013. I had indicated on 28 October 2013 that I would give reasons, or further reasons, as soon as possible and I would give reasons for giving reasons, or further reasons, as soon as possible. I had refused the application on behalf of Mr Ruzehaji and Ruzehaji Enterprises to adjourn the hearing set for this day, 6 November 2013.
Mr Abbott then said: “On the basis that your Honour is continuing to sit and hear this matter, our first application is to adjourn these proceedings either because of the appeals (that are) on foot or unless and until your Honour has delivered your reasons”. Mr Abbott was there referring to the fact that I had not yet delivered reasons as I had indicated at the conclusion of the hearing on 28 October 2013 that I would deliver.
Although the transcript of the proceedings before me, which proceeded throughout the day, speaks for itself, there are some matters I refer to now.
First, it was established that Mr Ruzehaji did not seek to raise the question that I heard the Commissioner’s application ex parte on 28 November 2012 in his application to set aside my Order 7 of that date, nor was it raised in the affidavit in support of that application filed 19 September 2013.
Secondly, as Mr Abbott developed his submission that I should adjourn until his clients’ two appeals had been heard and determined by the Supreme Court Mr Moses, of Senior Counsel for the Commissioner, informed me that my order refusing to grant the application by Mr Abbott to adjourn the hearing set for this day, 6 November 2013, was the subject of an urgent hearing before Stanley J the day before, 15 November 2013, at which an order was sought from the Supreme Court directing me, in effect, to adjourn these proceedings. I was informed that Stanley J declined that application and found that there would be no prejudice to Mr Ruzehaji if the matter were to proceed before me, and even if I were to make the orders the Commissioner sought pursuant to s180 of the Act.
Thirdly, following that, Mr Abbott submitted that he made it clear that his client sought an adjournment either until I give reasons for what I did on 28 November 2012 or, alternatively, until the appeals are heard.
As to the first matter, Mr Abbott submitted that absent my reasons, which he apprehended would impinge on the arguments he wished to ventilate this day, he was being forced to proceed to make his arguments in a vacuum. That would impinge upon his clients obtaining a fair hearing. He asked me, on this application, to take into account the Outline of Argument filed in respect to his application for an adjournment that was heard on 28 October 2013.
When Mr Abbott finished his submissions on his application for the court to adjourn I called upon Mr Moses.   Mr Abbott then said:
MR ABBOTT:    Sorry, there is one other matter before my learned friend starts. I understand there are some three people in court. It may be that they wish to be heard on an adjournment of proceedings this morning or not. I haven’t spoken to them. I understand that some or the other six, so that may be a relevant consideration or not.
HIS HONOUR:    Can you tell me who they are?
MR ABBOTT:    No. I can go and ask them.
HIS HONOUR:    No. They have heard what you said. If they want to say anything they can say something.
Mr Moses then made submissions opposing the application to adjourn.
Mr Moses submitted that it had never been asserted on behalf of Mr Ruzehaji or Ruzehaji Enterprises that the applications listed for hearing on this day could not be dealt with in the absence of my reasons for what I did on 28 November 2012. He submitted the relief sought on behalf of Mr Ruzehaji in his application listed for hearing did not logically connect with the delivery of any such reasons. He referred to the written Outline of Argument and Amended Outline of Argument filed on behalf of Mr Ruzehaji and Ruzehaji Enterprises for today’s hearing. The matters referred to there, he submitted, have nothing to do with my reasons for what I did on 28 November 2012. Rather, Mr Ruzehaji relied on what the lawyer acting for the Commissioner allegedly failed to disclose to me, and that I was functus officio and could not now give reasons.
Mr Moses informed me that Mr Abbott’s clients had sought an order the day before from a Supreme Court judge seeking to restrain me from giving reasons. Now it was being said that I need to give reasons in order that Mr Abbott’s clients could proceed with an application they had filed on 19 September 2013.
After Mr Moses concluded his submissions and before I called upon Mr Abbott in reply, I said that there were three people in the back row of the court who may be interested in the proceedings or may have an interest in them. I asked if anyone wished to apply to speak. When no one did I called on Mr Abbott.
Mr Abbott then asked me to read out the names of the six people in respect of whom the Commissioner sought examination orders be made. I indicated that I assumed that they had been given notice that such orders were being sought in respect of them. I was then told by Mr Moses that affidavits of service, which he then sought leave to file, indicated that each of the six individuals were informed through correspondence that the application for an examination order in respect of each would be heard before this court this day at 10.00am. He told me that there had been previous notifications to them when the matter was before Judge Muscat and one of the persons appeared on 20 September 2013 when this day’s date was fixed.
Mr Abbott then submitted that he did not think it was sufficiently clear to what I was referring when I mentioned orders that might affect each of those six persons. He then raised another matter that he submitted that I should draw to the attention of anyone in court, being “the issue of whether or not they have sought legal advice and whether or not they might now wish to seek legal advice”. He submitted:
In my submission, given the complexities of POCA, this is not a matter that could easily be handled by a non-informed litigant and particularly an unrepresented litigant, and if they did have in mind that they did want to somehow resist the orders that the plaintiff seeks in these matters then they certainly ought to do something about getting legal advice and, I respectfully submit, it is incumbent upon your Honour to at least advise them of that possibility.
I then asked Mr Abbott if he wished to reply to Mr Moses’ submissions. In doing so he informed me that Stanley J had found there was a serious issue to be tried in relation to the appeals but found that, “on the balance of convenience, it was not appropriate to make the orders that were sought which would have the effect of delaying” me from giving reasons for the orders I made on 28 November 2013. Mr Abbott then made further submissions in reply.
Before he finished speaking Mr Abbott said:
And I still am of the view that for the purposes of the transcript your Honour ought to have identified who is in court in relation to this matter insofar as not curious spectators of course but, if they are any persons who are the subject of the examination orders sought by my learned friends, those persons should be identified for the purposes of the transcript so we know who is here. I’ve been told from my learned junior, asking who is here, that there is a Mr Frank Sergi, who is presumably one of those persons and a Ms Francesca Pegoleto – sorry Mr Pegoleto, again who is the subject of examination orders and your Honour, in my submission, they ought to be informed of their right to have legal advice and be given the opportunity to obtain it.
When I asked again whether there was anyone in court who wished to say anything in respect of Mr Abbott’s application to adjourn these matters, a Mr Sergi spoke. He said that he had received a letter in the mail just in the last week of which he didn’t understand too much. He said he would like to get some legal advice. He referred to himself and Alison and Frank who wished to get legal advice. He told me that the three of them had received letters in the past. He said he could not remember whether he got a notice that there was a hearing in this court on 20 September 2013.
Then, a Mr Pegoleto said he could not recall getting a notice but if it was sent it was probably at home. He told me that he was not aware that “we had to seek legal advice”. He told me that the federal police had interviewed him and he had given them the information he could give them at the time. He had been told that they would be in contact if they needed any more. He handed me the notice that he had received. It was dated 29 October 2013. He said that he did not understand the letter and he did not understand criminal matters. He said he did not know that he needed legal advice, and that now that he did he would go and seek legal advice. When I asked how he knew that he needed legal advice he answered: “What’s so urgent I have to contact them?” I then raised with Mr Pegoleto that the letter he had given me referred to correspondence from the Commissioner dated 6 September 2013. He told me that he could not recall that correspondence and he did not have that letter with him. He possibly could have it at home.
When I asked Mr Pegoleto what he wanted to say about Mr Abbott’s application to adjourn these proceedings he replied that he needed time. He said: “If they are saying they have to examine me they are welcome to examine me but I still need legal advice on it so I would prefer to get legal advice”. I said that if an order was made that they examine him that will not prevent him from getting legal advice. He said he could not tell me anything more than what he had already told the federal police. He said he had already given an affidavit to the federal police.
When Mr Abbott said that a letter dated 26 September 2013 had not been exhibited, Mr Moses interrupted Mr Abbott. Mr Moses said that it had. He said that that indicated that the six persons in respect of whom examination orders were sought, three of whom were in court this day, could make an application to me to adjourn if they wished. He referred to what he submitted was authority for the fact that applications for examination orders were ordinarily not heard with notice being given to the persons concerned. He submitted that if I were to make examination orders I could give leave to the persons against whom they were made to make application, after receiving legal advice, to set aside my order within seven days should they be so advised. Any such application would need to be supported by affidavit. He submitted that this should not, however, be deployed on Mr Abbott’s application to adjourn proceedings. He submitted that the six persons had been on notice for some time as to the Commissioner’s application. He said that Mr Abbott did not represent them.
I then indicated to Mr Sergi that I would allow him to say whatever he wished to say about Mr Abbott’s application to adjourn. He indicated that he did not understand everything that was going on in court. He said he did not know that he needed a lawyer.
I then spoke to a Ms Wilson. She said that she did not wish to say anything.
I then indicated that Mr Abbott’s application to adjourn was refused. I said that I would publish reasons when I got a chance to. I do so now.
The basis upon which Mr Abbott made his application to adjourn was that I had not then given reasons for what I did on 28 November 2012. Alternatively, it was put on the basis that I adjourn until the two appeals are heard. He submitted that if I did not adjourn before I gave my reasons his client would be less likely to obtain a fair hearing on the applications. He relied on his earlier Outline of Argument for the adjournment I heard on 28 October 2013.
I was not convinced by any of these arguments. The only relief sought by Mr Ruzehaji on his application as to the orders I had made on 28 November 2012 was for me to set aside his examination order. That was the same position that obtained on 28 October 2013 when I refused the application to adjourn that he made on that day.
Further, on 28 October 2013 there was an appeal already lodged in the Supreme Court against my orders of 28 November 2012. Stanley J had declined to make an order directing me to adjourn these proceedings on the basis of that appeal. I was told that he found that there would be no prejudice to Mr Ruzehaji if the matter were to proceed before me, and even if I were to make the orders the Commission sought pursuant to s180 of the Act.
I did not consider that the further appeal, apparently filed in the Supreme Court on 5 November 2013, changed the situation in any significant way, if it changed it at all.
Further, I had been told that Mr Abbott had sought an order from Stanley J on 5 November 2013 seeking to restrain me from giving reasons. He now sought an adjournment of the proceedings because I had not given reasons.
Finally, the proceedings had already travelled a long and tortuous, or at least an arduous, course. All parties had on a number of occasions prepared submissions as to the two applications that were to be heard on 6 November 2013. It had not been suggested until this day that my failure to give reasons would compromise the hearing of the applications. I considered that justice required that I hear them.
I first heard Mr Ruzehaji’s application filed 19 September 2013. After indicating that he relied upon his outlines, Mr Abbott developed his submission that I should stay the proceedings pending determination of the criminal proceedings against Mr Ruzehaji. He first referred to an email from Mr Greaves to Mr Dadds dated 14 January 2013. That was not a document that was then before me. Mr Abbott tendered it. It became Exhibit D1. Mr Abbott then sought to tender the transcript of Mr Ruzehaji’s examination on 25 March 2013. Mr Moses suggested Mr Abbott reconsider that application. Mr Abbott did and withdrew his application. That was after an adjournment for 17 minutes. When we resumed Mr Abbott told me that the three persons who had been in court wished to make an application to me.
Mr Pegoleto then made an application that I adjourn until he sought legal advice. He told me he wanted me to adjourn that day so that “we can seek legal advice”, and that he had an appointment with a cardiologist at that time. Mr Pegoleto later said that he was just asking for an adjournment to seek legal advice. He could not come back later that day. He had only intended to stay for about half an hour and he had to go back to work.
Later, Mr Sergi indicated that he would like to ask for an adjournment as well. He said he did not understand the proceedings and he indicated that he would like to ask for an adjournment because he did not understand the proceedings. He said he did not know why he was in court that day. He said he had to get back to work as well. He said that he could not be back in court later that day.
I then asked Ms Wilson if she wished to say anything and she said that she would like “the order for us to be examined today” to be adjourned. She wanted to seek legal advice to see what she should do and she would like to oppose an order for her to be examined.
I then indicated that I would adjourn the Commissioner’s application for examination orders to 2.30pm that day, and that I would proceed to hear Mr Ruzehaji’s application.
Mr Abbott resumed his submissions on Mr Ruzehaji’s application. He said that that application was that I stay these proceedings.
Mr Abbott referred to the High Court decision in X7 v Australian Crime Commission & Anor [2013] HCA 29. He submitted that in that case the High Court decided that to.permit a parallel inquisitorial questioning of Mr Ruzehaji by a member of the Executive, being the examiner under the Act, where there are criminal proceedings extant against him could not and should not happen.
Mr Abbott then submitted that the High Court case of Lee v NSW Crime Commission [2013] HCA 39 did not in any way overturn or distinguish the application of X7 to the case before me. Mr Abbott submitted that there was a distinction between an examination which was subject to judicial control and one which was not. He submitted that in the latter case, where there was no judicial control, his client would not get the protection during an examination by a non- judicial person that he would have by a member or officer of a court. He submitted that this case was in the category of the latter case.
Mr Abbott submitted that this case was “an X7 case, not a Lee case” and that I should stay these proceedings.
Mr Abbott then submitted that his client was asking for my examination order to be set aside because of the existence of the concurrent criminal proceedings and because of the fact that he has already been examined. He submitted that the Commissioner cannot say that the examination does not touch upon the concurrent criminal proceedings because it clearly does. He submitted that I could stay the examination of Mr Ruzehaji as distinct from setting aside the examination order. He submitted that he put those as alternatives.
Mr Abbott then submitted that s319 of the Act does not prevent this court from staying proceedings even if it be on the sole ground that there are concurrent criminal proceedings. He submitted that section does not limit in any way the inherent power of the court to protect the integrity of its processes and to grant a stay as an abuse of process.
Mr Abbott then proceeded to make his submissions on “the issue of material non-disclosure”. He concentrated on that part of the material that had been put before me on 28 November 2012 where it was said that it was expected by the AFP that Mr Ruzehaji was “going to be arrested in due course”. Mr Abbott submitted that I was not told that “in due course” meant in the next week or two. He submitted that that was a material non-disclosure of fact. He submitted that when Mr Milligan swore that it was “possible that (Mr Ruzehaji) will be charged with the offences or similar offences in due course”, that was plainly wrong. That was established by the fact that Mr Ruzehaji was charged two weeks later. He submitted that another material non-disclosure of fact was that the Commissioner was saying to me on 28 November 2012 that “It must be done today because it’s urgent” when in fact that was quite wrong because there was no urgency demonstrated before me.

Mr Moses then developed his submissions on Mr Ruzehaji’s application of 19 September 2013. He said that the starting point was s319 of the Act. He submitted that that section meant that I may take into account a number of matters in exercising my discretion, including the existence of criminal proceedings. He relied on the observations made by the High Court in Lee’s case. He submitted that Mr Ruzehaji had adduced no cogent evidence that an examination of him would result in an unfair trial. He submitted there were only assertions being made from the Bar table.
Mr Moses drew my attention to the fact that there was no dispute here that the examiner of Mr Ruzehaji had already given a direction pursuant to s193(1) of the Act which provides power to the examiner to limit the use to which his answers in the course of the examination could be put. He referred also to an undertaking that had been given on behalf of the Commissioner by Mr Greaves that the Commissioner will not disseminate evidence of any examination of Mr Ruzehaji to a person involved in the criminal investigation or prosecution of him, without giving him seven days’ notice of his intention to do so (see Outline of Argument dated 20 September 2013, para 12(b)).
Mr Moses submitted that in essence Mr Abbott’s submission was that s319 of the Act was invalid because it does not provide the court with the power to exercise its discretion to stay proceedings on the sole basis that there are criminal proceedings on foot. He submitted that that was not part of the s78B notice given in this matter under the Judiciary Act.
Mr Moses submitted that the X7 case does not apply to the matter before me. Lee’s case, on the other hand, does, and the majority in that case held that s319 of the Act did not impugn the integrity of Chapter 3 courts, and there was no basis for undermining the constitutional validity of the legislation in question here, and in particular of s319 of the Act.
As to Mr Ruzehaji’s application to stay these proceedings Mr Moses made three points:
There is no evidence put and no issue raised why I should exercise my discretion to stay the proceedings.
The X7 case does not support the application. It does not relate to the issue as to discretion but to validity.
The Lee case upholds the validity of a provision in similar terms to s319 of the Act and Mr Ruzehaji has put nothing that would undermine the effect of that decision.
Mr Moses then made submissions regarding the issue of material non-disclosure raised by Mr Ruzehaji.
First, Mr Moses submitted that there was sufficient evidence before me on 28 November 2012 that Mr Ruzehaji might dissipate assets if he was not restrained by a court. Secondly, he submitted that the submission that the federal agent who swore that Mr Ruzehaji was about to be charged must have known at the time he swore that that Mr Ruzehaji was going to be charged and should have disclosed that should not have been made. Thirdly, he submitted that the submission that I should have been told that I should give reasons is not only inconsistent with one view that I did give reasons, but it also does not meet the relevant test of material non-disclosure.
Mr Moses then referred to the fact that Mr Ruzehaji’s primary application that I set aside the orders that I made on 28 November 2012 was not pressed by Mr Ruzehaji because he put a positive submission that I was functus officio in respect of the restraining order. He submitted that s42 of the Act is the only basis upon which the restraining orders could be set aside. An application pursuant to that section was never made.
I then heard the Commissioner’s application for examination orders to be made against six persons.
Mr Moses informed me that in addition to the orders in the application, his client sought an order that the six persons have leave to apply to the court within 14 days from the date of any order I make to show cause why the order should be set aside. A further order sought was that any orders I make be stayed for a period of 14 days so that each of those six persons may seek, if they so chose, to make an application within that period to set aside the order.
Mr Moses noted that the three persons who were in court earlier were not present in court at that time. The names of Alice Wilson, Frank Sergi and Frank Pegoleto were then called three times outside the courtroom. There was no appearance of any of them.
Mr Moses then submitted that the words of s180 of the Act clearly and unambiguously provide that an examination order can be made for the examination for any person. He referred to and relied upon the affidavit material in support of his client’s application.
Dr Gray made submissions in opposition to my making orders on the Commissioner’s application. She developed the submission that on a proper construction of s180 of the Act the persons to whom an examination order could be directed were confined to those referred to in sub-paras (a), (b) and (c) of the section. The second matter she addressed concerned the factual matters upon which the Commissioner relied, whilst the third was the exercise of my discretion.
Mr Moses made submissions in reply. At the end of his reply he indicated that the Commissioner would concede that I should not make orders in the precise terms sought in orders 1 and 2. He conceded that no orders should be made that Rayhana El Ashal (nee Ruzehaji) be examined about her affairs, or that Wajdy Jamal be examined about his affairs.
I then varied one of Judge Muscat’s orders of 20 September 2013 to preserve the position until I delivered my decision, and I then reserved my decision.
I first consider Mr Ruzehaji’s application filed 19 September 2013 by which he sought that two orders be made by me.
The first order he sought is that I set aside the examination order I made in respect of him on 28 November 2012 nunc pro tunc from 19 December 2012.
I was never entirely certain whether Mr Ruzehaji was pursuing this order. On 28 October 2013 Mr Abbott said, as to this order, “obviously that’s not going to be pursued in this court”. He explained that was because it was being pursued before the Supreme Court. Later, in his outlines and in submissions on 6 November 2013 it appeared that not only was Mr Ruzehaji pursuing an order to set aside the examination order but he sought from this court an order setting aside all of the orders I made on 28 November 2012. Further still, the grounds upon which he sought to set aside all of the orders expanded to include material non-disclosure and the justice of the case.
Mr Ruzehaji also submitted that all the orders I made on 28 November 2012 should be stayed as an abuse of process, pursuant to the court’s inherent powers.
All the issues raised by Mr Rusehaji on 6 November 2013 were fully argued before me, although Mr Moses submitted that Mr Ruzehaji’s application should be confined to a consideration by me of setting aside the examination order, not any of the other orders I made. I deal with Mr Ruzehaji’s application in its widest form, not just the order for which he applied to set aside the examination order.
As to the relief sought by Mr Ruzehaji I find the submissions of Mr Moses to be completely compelling and entirely convincing. I am referring here to the last six points Mr Moses made in paragraph 3.4 of his outline.
I am satisfied that s42 of the Act provides the only power to this court to set aside the Restraining Order I made on 28 November 2012. I also consider that it is important in the exercise of my discretion that Mr Ruzehaji did not avail himself of the steps that were open to him in s42 of the Act in relation to the Restraining Order. No evidence has been provided to me as to why this was not done, despite Mr Ruzehaji and Ruzehaji Enterprises being informed of this right on 13 December 2012 and both having legal representation during the 28 days available to revoke the order. There is also no probative evidence put before me by Mr Ruzehaji for the delay in his seeking to set aside the examination order in respect of himself. In fact, he was examined pursuant to the order I made that he now seeks to set aside and he was represented by Senior Counsel when that examination took place.
I agree with Mr Moses’ submission that the discretion in s180 of the Act to order examinations “must be exercised consistently with the general scheme of the ... Act” (Lee at [338]), and that that occurred on 28 November 2012. The objects of the Act, set out in s5 of it, are important public policy objectives for legislation such as the Act with which we are here concerned, and I consider that the orders I made on 28 November 2012 were an orthodox application of the provisions in the Act so as to achieve those objects, whilst ensuring that anyone who may be charged is only convicted following a fair trial and that proceedings such as the proceeding before this court will not be stayed unless there is a real risk, as opposed to a remote possibility, of ... an interference with the administration of justice (Lee at [320]) .
I also agree with Mr Moses’ submissions regarding Mr Ruzehaji’s submissions as to alleged material non-disclosures. I consider that a passage from a judgment of Slade L.J. in Brink’s Mat Ltd v. Elcombe & ors [1988] WLR 1350, 1359 is particularly apposite here. This was said:
Nevertheless, the nature of the principle, as I see it, is essentially penal and in its application the practical realities of any case before the court cannot be overlooked. By their very nature, ex parte applications usually necessitate the giving and taking of instructions and the preparation of the requisite drafts in some haste. Particularly, in heavy commercial cases, the borderline between material facts and non-material facts may be a somewhat uncertain one. While in no way discounting the heavy duty of candour and care which falls on persons making ex parte applications, I do not think the application of the principle should be carried to extreme lengths. In one or two other recent cases coming before this court, I have suspected signs of a growing tendency on the part of some litigants against whom ex parte injunctions have been granted, or of their legal advisers, to rush to the Rex v. Kensington Income Tax Commissioners [1917] 1 K.B. 486 principle as a tabula in naufragio, alleging material non-disclosure on sometimes rather slender grounds, as representing substantially the only hope of obtaining the discharge of injunctions in cases where there is little hope of doing so on the substantial merits of the case or on the balance of convenience.
I consider that the alleged material non-disclosures here constitute “rather slender grounds” to the point that I consider that, even if any of them constituted a non-disclosure or was material, and I do not consider any do, I would not be satisfied they are such as to cause me to set aside any of the orders I made on 28 November 2012.
I note here, because I think it relevant to the applications before me, that all of my orders are challenged by Mr Ruzehaji and Ruzehaji Enterprises in the Supreme Court. It will be for that court to determine whether I erred in making those orders. If the Supreme Court finds that I did err and sets aside my orders, it may be that that court will consider whether it should make the same orders I made, nunc pro tunc from 28 November 2012. That may be something that court may consider in light of the history of the matter and that Mr Ruzehaji and Ruzehaji Enterprises have had, over the past more than a year, full disclosure and legal representation since, and including, 19 December 2012.
The second order sought by Mr Ruzehaji is that I stay these proceedings pending the determination of the criminal proceedings against him. Again, I find Mr Moses’ submissions compelling and convincing.
I consider that this case is a Lee case and is not an X7 case. I have no doubt that the legislation with which we are concerned here “clearly envisages a situation where forfeiture and exclusion proceedings under the Act can progress whilst criminal proceedings are on foot” (see Qing Zhao & Xing Jin v The Commissioner of the Australian Federal Police [2013] VCC, Ruling 3 December 2013, at para 16).
The passages from Lee that Mr Moses set out in his outline (at paras 3.8-3.13) are compelling. I consider that the question on this part of Mr Ruzehaji’s application is whether, if I were to allow these proceedings to continue, that will likely result in an unfair trial to Mr Ruzehaji or whether it will pose a real risk, as opposed to a remote possibility, of an interference with the administration of justice.
I am firmly of the view that that question should be answered in the negative. I am not satisfied that either of these events or circumstances would result. There is no doubt that Mr Ruzehaji has been charged, but I consider that there is no material, or no sufficient material, upon which I could be satisfied of either of these events or circumstances. These are not matters upon which Mr Ruzehaji can only speculate or guess. He has already been examined pursuant to the order I made on 28 November 2012. He was charged with criminal offences before that examination and I was told that the Informations against him are moving through our Magistrates Court. He would likely know, or at least reasonably suspect, what prejudice, unfairness, or interference with the administration of justice might arise. Yet I have not been told about any. What I was told is that the examiner made some orders under the Act in this regard and the Commissioner has given a certain undertaking in respect of evidence taken from Mr Ruzehaji in any examination.
For these reasons I refuse the order sought in paragraph 2 of Mr Ruzehaji’s application of 19 September 2013.
Finally, I consider the Commissioner’s application filed on 3 September 2013 by which was sought examination orders in respect of six people. For these orders the Commissioner relied on an affidavit of Federal Agent Jamie Johnson sworn on 2 September 2013.
I consider that the submission made on behalf of Mr Ruzehaji and Ruzehaji Enterprises to the effect that s180 of the Act should be construed as being confined to the persons who fall within paragraphs (a), (b) or (c) of it is unmeritorious. I have no doubt that upon a proper construction of s180 of the Act, in conjunction with the other provisions of the Act including its objects in s5, an order can properly and lawfully be made in respect of any person. I can not accept that the Parliament would have used the words “examination of any person, including:” if it meant “examination of any of the following persons:”. I consider that the Explanatory Memorandum in respect of the Act supports the construction contended for by Mr Moses for the Commissioner.
I am satisfied on the basis of the affidavit of Jamie Johnson that each of the six people named in the Commissioner’s application can give evidence about the affairs of relevant people for the purposes of s180 of the Act.
As indicated earlier in these reasons three of those persons attended before me. They asked that I adjourn the proceedings whilst they obtain legal advice. I adjourned the proceedings to that afternoon. Not one of them returned. I do not rely on their non-attendance as some indicated that they could not return. I am satisfied, however, that each of the six persons had early notice of the Commissioner’s application; each received advice from time to time as to the progress of the application; and some had no objection to speaking with federal police.
I consider that the terms of the orders that I propose to make will sufficiently protect the interests of those six people, and, in particular, will allow them to seek and obtain legal advice in respect of the orders I propose to make.
I grant the Commissioner’s application of 3 September 2013 and will make the orders sought by the Commissioner.