Commissioner of Australian Federal Police v Xin; Tara Global Pty Ltd v The Official Trustee in Bankruptcy

[2024] NSWSC 851

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of Australian Federal Police v Xin; Tara Global Pty Ltd v The Official Trustee in Bankruptcy [2024] NSWSC 851

Hearing dates:

28 February 2024

Date of orders:

12 July 2024

Decision date:

12 July 2024

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) The notice of motion brought by Tara Global Pty Ltd on 3 July 2023 and amended on 15 October 2023 in proceedings 2023/32255 is stayed on the following conditions:

(a) Tara Global Pty Ltd shall have leave to amend its statement of claim in proceedings 2023/263865 in accordance with this judgment including (but not limited to) by adding the Commissioner of the Australian Federal Police as a defendant to those proceedings.

(b) The stay of the proceedings does not prevent Tara Global Pty Ltd from seeking injunctive relief in accordance with its notice of motion but should do so in proceedings 2023/263865.

(c) Such stay to remain in force until resolution of proceedings 2023/32255 and 2023/263865.

(2) The application to stay proceedings 2023/263865 is dismissed.

(3) Any amendment to the statement of claim in proceedings 2023/263865 is to be filed and served on or before Friday 9 August 2024.

(4) Proceedings 2023/263865 shall be joined with proceedings 2023/32255 and are to be heard together.

(5) Each of those proceedings is adjourned for mention and case management before the Registrar on 12 August 2024.

(6) The parties will have 14 days to argue that some other costs order should be made, otherwise, costs on each of the notices of motion are reserved to the trial Judge.

Catchwords:

CIVIL LAW – proceeds of crime – restraining orders against 20 defendants – one defendant brings a motion alleging negligence by the Official Trustee in the management of restrained real property – failure to make mortgage repayments – default in mortgage – penalties charged – where mortgagee seeks to exercise right of sale – separate negligence proceedings – motions to stay or adjourn negligence proceedings and negligence motion – whether duplication of proceedings – where Judge ordered or suggested proceedings should be brought by separate proceedings – whether cause of action proceeds of crime – whether any damages for negligence would inevitably be subject of restraining orders – where forfeiture orders to be determined in the future – where Judge who made ex parte restraining orders allocated motion to stay proceedings – unfortunate happenstance

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Civil Liability Act 2002 (NSW), Pt 5

Civil Procedure Act 2005 (NSW), ss 5(1), 56, 56(1), 58, 59, 66, 67

International Covenant on Civil and Political Rights, art 14(1)

Proceeds of Crime Act 2002 (Cth), ss 18, 18(2)(c), 19, 21, 29, 31, 38, 39, 276, 290, 319, 319(1), 319(2), 319(6), 329, 330

Real Property Act 1900 (NSW), ss 57(2)(b), 58(1)

Cases Cited:

Application by the Commissioner of the Australian Federal Police; In the matter of Xin & Ors [2023] NSWSC 46

Application by the Commissioner of the Australian Federal Police; In the matter of Xin & Ors (No 2) [2023] NSWSC 64

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27

Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1

Gao v Zhang (2005) 14 VR 380; [2005] VSCA 200

General Steel Industries Inc v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125; [1964] HCA 69

GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857

Gore v Van der Lann [1967] 2 QB 31; [1967] 1 All ER 360

Habib v Radio2UE Sydney Pty Ltd [2009] NSWCA 231

Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46

Johnson v Gore Wood & Co [2002] 2 AC 1; [2001] 1 All ER 481

Kermani v Westpac Banking Corporation (2012) 36 VR 130; [2012] VSCA 42

Lidden v Composite Buyers Ltd (1996) 67 FCR 560; (1996) 139 ALR 549

Livingstone v Mitchell [2020] NSWSC 1464

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Moore and Others v Inglis (1976) 9 ALR 509; (1976) 50 ALJR 589

Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50

New South Wales Bar Association v Stevens [2003] NSWCA 95

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32

Onley v Commissioner of Australian Federal Police [2019] NSWCA 101; (2019) 277 A Crim R 200

PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384

Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393

Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42

Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23

Ruzehaji v Commissioner of the Australian Federal Police (2015) 124 SASR 355; [2015] SASCFC 182

Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841

Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246; (1985) 54 LGRA 232

Thirteenth Corp Pty Ltd v State and Others [2006] FCA 979; (2006) 232 ALR 491

Toben v Nationwide News Pty Ltd (2016) 93 NSWLR 639; [2016] NSWCA 296

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Wigmans v AMP Ltd (2021) 270 CLR 623; [2021] HCA 7

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited:

International Covenant on Civil and Political Rights, art 14(1)

Category:

Principal judgment

Parties:

Australian Federal Police (Applicant)
The Official Trustee in Bankruptcy (Applicant)
Tara Global Pty Ltd (Respondent)
Perpetual Corporate Trust Limited (Interested party)

Representation:

Counsel:
A Moses and W Liu (Applicants)
M Young (Respondent)
M Collins (Interested party)

Solicitors:
Maddocks (Applicant Official Trustee)
Dixon Holmes Lawyers (Respondent)
Gavin Parsons & Associates (Interested party)

File Number(s):

2023/0032255; 2023/263865

Publication restriction:

Nil

JUDGMENT

1. This interlocutory judgment relates to two factually related notices of motion by which the Commissioner of the Australian Federal Police and the Official Trustee in Bankruptcy seek orders staying or, in the alternative, adjourning a notice of motion and a statement of claim, each of which was brought by Tara Global Pty Ltd, the owner of certain real property located at 119 King Street, Sydney. I will refer to those parties as “the Commissioner”, “the Official Trustee” and “Tara Global”.

2. The present controversy arises out of proceedings (2023/32255) brought by the Commissioner by summons dated 30 January 2023 against 20 defendants under the Proceeds of Crime Act 2002 (Cth) (“POC Act”): Application by the Commissioner of the Australian Federal Police; In the matter of Xin & Ors [2023] NSWSC 46 (“AFP v Xin”) at [2]. Tara Global was the fifth defendant to those proceedings to which I will refer as the “POCA proceedings”. On the first return date, many ex parte orders were made against the defendants and property said to be owned by them or, speaking generally and without unnecessary reference to the precise terms of the POC Act, suspected to be the proceeds of crime. Without descending into the detail, the suspected criminal activity involved an alleged international money laundering scheme involving, amongst other things, the use of various forms of crypto currency and multiple transfers of currency around the world.

3. The King Street property was subject to a restraining order and control and management of the property was placed in the hands of the Official Trustee. Tara Global asserts that the Official Trustee has been negligent in its management of the property, specifically by failing to make mortgage payments to the mortgagee, Perpetual Corporate Trust Ltd (“Perpetual”). Perpetual has issued notices under s 57(2)(b) of the Real Property Act 1900 (NSW) (“RPA”) resulting from the default in mortgage payments.

4. On 3 July 2023 Tara Global filed a notice of motion in the POCA proceedings, which was amended on 15 October 2023. The motion alleges negligence on the part of the Official Trustee and seeks a variety of orders including declaratory relief and the return of control over the King Street property to Tara Global. The notice of motion also sought an order restraining Perpetual from taking steps to enforce its rights under the mortgage. I will refer to this as “the amended negligence motion”.

5. By statement of claim filed on 18 August 2023, and amended on 6 November 2023, Tara Global commenced separate proceedings (2023/263865) against the Official Trustee and Perpetual (“the negligence proceedings”). The amended statement of claim alleges negligence by the Official Trustee in its management of the King Street property and breach of contract on the part of Perpetual.

6. At this stage, the Court must determine a notice of motion filed by the Commissioner on 15 November 2023. The motion seeks a temporary stay of the amended negligence motion or alternatively an adjournment of that motion. The Court must also determine a notice of motion filed by the Official Trustee on 15 November 2023, seeking similar orders with respect to the negligence proceedings. I will presently set out in full the relief sought in each of these notices of motion.

7. The substance of the amended negligence motion and the negligence proceedings raise similar factual and legal issues. The present notices of motion were heard together without demur from the parties and the parties agree that the amended negligence motion and the negligence proceedings “can only sensibly be heard and determined together.”[1] However, the parties are in dispute as to the timing of that hearing. The Commissioner and the Official Trustee submit that the determination of these issues should occur after the POCA proceedings are resolved either by forfeiture of the King Street property or upon an order vacating the orders by which the Official Trustee is in possession and control of the property. Tara Global contends that the interests of justice require prompt resolution of the issues raised and that some of the relief sought would be rendered nugatory if the negligence action (or notice of motion) is delayed until the final hearing of the POCA proceedings.

   1. Commissioner’s written submissions at paragraph [3.12] Tara Global’s written submissions at [7].

The relief sought by the parties

8. To understand the conclusions I have reached, it is necessary to consider more closely the relief sought by the parties.

Tara Global

9. In its amended negligence motion, Tara Global seeks the following orders:

“1. Declare that the Official Trustee in Bankruptcy (“Official Trustee”) has been ‘guilty of negligence’, within the meaning of s 290 of the Proceeds of Crime Act 2002 (Cth) (“Act”), in its management of the property the subject of Schedule Sixteen (“Property”) between the period 31 January 2023 to 23 June 2023, by reason of its failure to make payments to Perpetual Corporate Trust Limited (“Perpetual”) in respect of the applicant’s loan secured by registered mortgage AS437510 (“Late Payment Event”).

2. Order that the Official Trustee pay to Perpetual all accrued interest, fees, charges, costs and disbursements (“Damages”) arising from the Late Payment Event, as have been charged by Perpetual to the applicant or against the applicant’s loan account with Perpetual, as continuing until paid.

3. Further, or in the alternative to order 2 above, order that the Commissioner of the Australian Federal Police (“Commissioner”), in accordance with its general undertaking as to damages, pay to Perpetual all Damages arising from the Late Payment Event, as have been charged by Perpetual to the applicant or against the applicant’s loan account with Perpetual, as continuing until paid.

4. Order that the Official Trustee return control over the Property to the applicant, subject to the following orders and undertakings:

a. An undertaking by the first, second and fifth defendants that…they will not deal with the Property in any way that diminishes the fifth defendant’s interest in the Property, including by any disposal or assignment, or further encumbering the Property.

5. Order that Perpetual be restrained from taking any steps to enforce the Notice issued by it on the applicant under s 57(2)(b) of the Real Property Act 1900 (NSW) on 1 March 2023, or any such further Notice as may be issued by Perpetual in respect of the Property on the basis of:

i. A change in ownership or control of the applicant; and

ii. The Official Trustee taking control over the Property…”

10. The relief sought in the separate negligence proceedings is identified as follows in the amended statement of claim:

“1. Damages as against the First Defendant [the Official Trustee] for negligence.

2. Damages as against the Second Defendant [Perpetual] for breach of contract.

3. A declaration that the ‘late payment fee’ in the loan agreement entered into between the Plaintiff [Tara Global] and the Second Defendant [Perpetual] is void as a penalty.

4. An order that the Second Defendant [Perpetual] forthwith credit the Plaintiff’s [Tara Global’s] loan account with the entirety of the late payment fees the Second Defendant has charged to that account, together with any interest charged upon those late payment fees.

5. Interest pursuant to s 100 of the Civil Procedure Act.

6. Costs; and

7. Interest on costs.”

The Commissioner and the Official Trustee

11. By notice of motion filed on 15 November 2023 in the POCA proceedings the Commissioner sought the following orders:

“1. Pursuant to section 319 of the Proceeds of Crime Act 2002 (Cth), the notice of motion filed by Tara Global Pty Ltd on 3 July 2023 and amended on 15 October 2023 (Amended Negligence Motion) be stayed until after either:

(a) forfeiture orders are made pursuant to Part 2-2 of the Proceeds of Crime Act 2002 (Cth); or

(b) forfeiture occurs pursuant to Part 2-3 of the Proceeds of Crime Act 2002 (Cth); or

(c) Orders 23 and 77 of the restraining orders made by Justice Hamill on 31 January 2023 are vacated (Restraining Orders),

in relation to the real property located at 119 King Street, Sydney NSW (King Street Property) being Schedule 16 to the Restraining Orders.

2. In the alternative to order 1, pursuant to section 66 of the Civil Procedure Act 2005 (NSW) and/or the Court’s inherent jurisdiction, the Amended Negligence Motion be adjourned until after the occurrence of an event outlined in order 1(a), 1(b) or 1(c) above.

3. In the further alternative to orders 1 and 2:

(a) pursuant to section 66 of the Civil Procedure Act 2005 (NSW) and/or the Court’s inherent jurisdiction, the determination of the Amended Negligence Motion be adjourned until after the issues set out at paragraphs 54 and 55 of the Amended Statement of Claim filed in proceeding number 2023/00263865 on 6 November 2023 (Penalty Issue) are determined by way of a separate question in that proceeding.”

12. By the notice of motion filed on 15 November 2023 in the negligence proceedings the Official Trustee sought the following orders:

“1. Pursuant to section 67 of the Civil Procedure Act 2005 (NSW) and/or the Court’s inherent jurisdiction, the proceeding be stayed until after either:

(a) forfeiture orders are made pursuant to Part 2-2 of the Proceeds of Crime Act 2002 (Cth); or

(b) forfeiture occurs pursuant to Part 2-3 of the Proceeds of Crime Act 2002 (Cth); or

(c) Orders 23 and 77 of the restraining orders made by Justice Hamill on 31 January 2023 are vacated,

in relation to the real property located at 119 King Street, Sydney NSW (King Street Property) in the related proceeding NSWSC 2023/00032255.

2. In the alternative to order 1, pursuant to section 66 of the Civil Procedure Act 2005 (NSW) and/or the Court’s inherent jurisdiction, the proceeding be adjourned until after the occurrence of an event outlined in order 1(a), 1(b) or 1(c) in the related proceeding NSWSC 2023/00032255.

3. In the further alternative to orders 1 and 2:

(a) the issues set out at paragraphs 54 and 55 of the Amended Statement of Claim filed in this proceeding on 6 November 2023 (Penalty Issue) be determined by way of a separate question; and

(b) pursuant to section 66 of the Civil Procedure Act 2005 (NSW) and/or the Court’s inherent jurisdiction, the balance of the proceeding be adjourned until after the determination of that separate question.”

13. At the hearing Senior Counsel for the Commissioner and the Official Trustee confirmed that the notices of motion did not seek summary dismissal of the amended negligence motion (or, I infer, the negligence proceedings) even though there was a substantial duplication or overlap in both the cause of action and the relief sought. However, the parties had discussed such a resolution in brief discussions prior to the hearing. [2]

    2. Tcpt (28/2/24) p 9.

The evidence and submissions

14. There was an indexed and paginated Court Book comprising 172 pages which included the notices of motion, pleadings and particulars, affidavit evidence and written submissions. The affidavits were read without objection and marked as MFI 2. Loan activity statements for Tara Global were tendered and marked as Exhibit 1. Senior Counsel for the Commissioner and the Official Trustee provided a folder containing the summons, and my previous orders and judgment and this was marked as MFI 1.

15. The Commissioner’s written submissions were filed on 8 December 2023. The same counsel appeared for the Official Trustee and the arguments made on its behalf were the same. The Commissioner and the Official Trustee relied on affidavits of their respective solicitors. Tara Global filed written submissions dated 12 December 2023 and read an affidavit of its solicitor. Counsel for Perpetual filed written submissions dated 11 December 2023.

16. At the risk of oversimplifying its careful and extensive arguments, the Commissioner made four fundamental submissions:

1. The first is that, until any forfeiture application is heard and determined, it is not possible to ascertain what, if any, loss has been occasioned (or by whom) as a result of any defaults in the mortgage repayments. Determination of such loss is fundamental to resolving the amended negligence motion and negligence proceedings, and to attempt to determine Tara Global’s claims at this stage would be premature.

2. The second argument is that there is no evidence, or even a serious contention, that staying the amended negligence motion and negligence proceedings would occasion any prejudice to Tara Global (or any related defendant to the POCA proceedings). In circumstances where both the King Street property and the mortgage repayments to Perpetual have been restrained by virtue of the orders made on 31 January 2023, Tara Global has not suffered any direct loss as a result of fees and charges accruing. This will remain the case while the restraining orders continue to have effect. Further, it is submitted that any action Tara Global may have against the Official Trustee for any purported loss or damage arising from the restraining orders could still be pursued after forfeiture occurs, assuming that to be the ultimate outcome of the POCA proceedings.

3. The third submission is that, if the first submission is correct – that is, it would be premature to determine the amended negligence motion and the negligence proceedings prior to resolution of the application for forfeiture – it would be contrary to the interests of justice and the overriding purpose in s 56(1) of the Civil Procedure Act 2005 (NSW) (“CPA”) to refuse to stay or adjourn the matters. To do so would undermine the parties’ ability to devote the necessary time and resources to resolving the primary POCA proceedings expeditiously and would almost certainly lead to unnecessary costs being incurred.

4. The fourth fundamental submission is that determining the negligence issue while the King Street property remains restrained would not lead to the outcome sought by Tara Global, even if it succeeds on the negligence issue. It was submitted that the payment of damages in the POCA proceedings would be contrary to both the legislative principal objects and the confiscation scheme of the POC Act. The Commissioner submits that, even if an award of damages was made, payment could not occur until after forfeiture, or until final resolution of the forfeiture proceedings. Such a payment would involve a significant risk that Tara Global, or those who control that company, may attempt to dissipate the money, thereby circumventing the purpose of the restraining orders.

17. In addition to those four primary submissions, the Commissioner also contends that any cause of action Tara Global has against the Official Trustee falls within the meaning of “proceeds” of an offence pursuant to s 329 and/or s 330 of the POC Act and would be subject to similar restraining orders under the POC Act.

18. Finally, the Commissioner points to the undertaking made when the restraining orders were made. This undertaking will, according to the Commissioner, cover any loss caused by the negligence alleged. I assume this undertaking would encompass the potential substantial loss that would be occasioned if the mortgagee exercises any right it may have to sell the property in the event of a default.

19. Again at the risk of oversimplification of its position, Tara Global submits:

1. Section 319 of the POC Act does not assist the Commissioner’s case. If the amended negligence motion and negligence proceedings constitute “proceedings under the Act” (s 319(1)), the section circumscribes the Commissioner’s right to obtain a stay; the overall tone of the section restricts substantially the grounds upon which a stay can be granted. If they are not “proceedings under the Act”, s 319 is irrelevant.

2. A stay is not in the interests of justice. The relief sought in the amended negligence motion would be rendered nugatory if its determination is stayed until after forfeiture of the King Street property. To stay an application to review an interlocutory holding regime until that regime comes to an end is, in effect, a complete denial of the ability to bring the application.

3. The causes of action being pursued by Tara Global are not restrained or subject to the custody or control of the Official Trustee pursuant to the orders made on 31 January 2023. However, even if the Commissioner was to successfully claim such causes of action as proceeds of crime and obtain restraining orders, this does not mean there would be no benefit to Tara Global from an award of damages. Some of the monies could be applied to partially satisfy its obligations to Perpetual.

4. Forfeiture orders have not yet been made and the King Street property still presently belongs to Tara Global who has suffered loss. The cause of action is thus fully constituted at present. Further, even if the King Street property is eventually forfeited, a ruling on the relative responsibility of the Official Trustee and Perpetual for such losses would be of financial benefit to the Commonwealth and thus would not be wasted.

20. Before considering the issues raised by these submissions, it is necessary to set out in more detail the chronology, factual background and procedural history of the litigation.

The history of the two proceedings

The factual background and orders made ex parte by the duty judge

21. The Australian Federal Police (“AFP”) is conducting an investigation into what is suspected to be – and in some instances is established to be – a large-scale international money laundering scheme: AFP v Xin at [6]. The scheme involved assets estimated to amount to approximately $240 million dollars: AFP v Xin at [6]. Without delving into the complexities of the scheme, the detail relevant to the current proceedings concerns the purchase of the King Street property for $21 million dollars by Tara Global, an entity said to be in the effective control of Mr Steven Hoitou Xin and Ms Yi Ming Wang (“Mr Xin” and “Ms Wang”) at all relevant times. Mr Xin and Ms Wang are two of the named defendants in the POCA proceedings. The King Street property was (and remains) subject to a mortgage in favour of Perpetual in the sum of about $11 million dollars.

22. The Commissioner asserts that the King Street property is the proceeds or instrument of one or more offences because it was partly paid for by funds from a bank account which are suspected to be the proceeds of crime and that Mr Xin and Ms Wang allegedly provided false information to the bank in procuring finance to fund the purchase of the property.

23. On 30 January 2023, in the capacity of the Common Law Duty Judge, I received informally the Commissioner’s summons which sought, in circumstances of urgency and secrecy, a raft of orders under the POC Act against 20 named defendants, including Tara Global, Mr Xin and Ms Wang. The summons, dated 30 January 2023, was filed in court with leave when the matter came before the Court the following day: AFP v Xin at [2].

24. The summons sought some 248 orders pursuant to the provisions of the POC Act: AFP v Xin at [2]. However, the urgent and ex parte application made on 31 January 2023 was restricted to the first 158 orders, with an additional order added which was protective of the interests of the defendants. A lengthy affidavit of AFP Officer Scott Matthews was read in support of the application. The short minutes of order are on the court file. In essence, the Commissioner sought and obtained restraining orders pursuant to ss 18 and 19 of the POC Act (orders 4-100) orders allowing the Official Trustee to deal with the property subject to the restraining orders (orders 101-151) and a number of orders requiring particular defendants to disclose information pertinent to their financial affairs (orders 152-158). The final order (159) prohibited disclosure of information obtained pursuant to the disclosure orders to State, Commonwealth and foreign investigative agencies.

25. Relevantly, the orders made on 31 January 2023 included orders restraining the King Street property pursuant to ss 18(2)(c) and 19 of the POC Act and orders placing the property into the custody and control of the Official Trustee pursuant to s 38 of the POC Act. At the time those orders were made Mr Xin was in custody on remand and Ms Wang had been charged and was at liberty on bail.

26. The following day, 1 February 2023, the Commissioner returned to the duty court seeking further orders under the POC Act. These orders related to a “Huobi exchange account” which was identified during a search warrant executed at premises in Epping shortly after the initial orders were made on 31 January 2023. I made those additional orders: Application by the Commissioner of the Australian Federal Police; In the matter of Xin & Ors (No 2) [2023] NSWSC 64.

The litigation since the restraining orders were made

27. The relevant history of the litigation since I made the orders on 31 January 2023 and 1 February 2023 is as follows: [3]

    3. This history is derived from affidavits of Caitlin Julia Muddle, a solicitor in the employ of the AFP and Donald Junn, the solicitor for Tara Global. There are perhaps minor inconsistencies as to the history and these are not capable of resolution on the evidence before the Court. However, they are not of significance to the present issues.

• On 16 March 2023, Perpetual filed a notice of motion seeking orders excluding its interest in the King Street property (POC Act, ss 29 and 31) along with facilitative orders to enable Perpetual to deal with the property and effect its sale (“the Perpetual motion”). The Perpetual motion came before Rothman J on 24 and 27 April 2023 and 4 and 18 May 2023 and his Honour made various case management orders relating to that motion. The matter was adjourned until 15 June 2023 to enable interested parties to liaise with a view to reaching agreement as to the sale of the property.

• Between 11 May and 13 June 2023 the Commissioner’s lawyers sent correspondence to Tara Global’s solicitor regarding Tara Global’s intention to seek an order peustant s 39 of the POC Act to vary the restraining orders to permit funds held in a NAB bank account to be used to make the mortgage repayments.

• On 22 June 2023 Tara Global filed a notice of motion dated 21 June 2023 seeking such a variation as well as an order that the Official Trustee take reasonable steps to ensure all mortgage repayments were made and an alternative order that the King Street property purchase debt (including the mortgage) be met from the NAB account.

• On 23 June 2023 the orders sought in Tara Global’s motion were substantially granted by consent. [4]

  4. Affidavit of Donald Junn, at [7].

• On 3 July 2023 Tara Global filed a notice of motion alleging negligence on the part of the Official Trustee, which was amended on 15 October 2023.

• On 20 July 2023 the parties came before Rothman J again. The JusticeLink orders included that: “any proceedings by the 5th defendant and/or Tara Global against parties that include the Official Trustee be commenced within 21 days of the date hereof”. During the hearing before me on 28 February 2024, Senior Counsel for the Commissioner indicated to me that “his Honour determined that if Tara Global were to commence proceedings against the Official Trustee in negligence it ought do so by way of separate proceedings”. [5]

  5. Tcpt 28/2/24 p 6.

• On 18 August 2023 Tara Global filed a statement of claim alleging negligence on the part of the Official Trustee and alleging negligence and breach of contract on the part of Perpetual. This was amended on 6 November 2023 in relation to the claims against Perpetual.

• On 14 September 2023 Perpetual filed its defence to the negligence proceedings.

• On 21 September 2023 the Official Trustee filed a defence in the negligence proceedings.

• On 16 October 2023, and based on records on Justice Link, Rothman J heard and reserved judgment on the Perpetual motion.

• On 15 November 2023, the Commissioner and the Official Trustee filed their respective notices of motion seeking the orders with which the Court is presently concerned.

• On 28 February 2024, by an unfortunate happenstance, the matter came back before me for determination of these motions.

The Court’s jurisdiction to order a stay or alternatively an adjournment

28. The written submissions of the Commissioner and the Official Trustee, which are in effectively the same terms, relay in helpful detail the Court’s powers and jurisdiction to grant the relief sought. In the circumstances prevailing here, there is no question that the Court has the power to order a stay, or to adjourn the proceedings. The power derives from s 319 of the POC Act, from ss 66 or 67 of the CPA, or is based in the Court’s inherent jurisdiction. [6]

    6. See, for example, New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83] per Spigelman CJ (Meagher and Sheller JJA agreeing). The Court’s inherent jurisdiction is expressly preserved by s 5(1) of the Civil Procedure Act 2005 (NSW).

29. Section 319 of the POC Act provides:

Stay of proceedings

(1) A court may stay proceedings (the POCA proceedings) under this Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so.

(2) The court must not stay the POCA proceedings on any or all of the following grounds:

(a) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person subject to the POCA proceedings;

(b) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against another person in respect of matters relating to the subject matter of the POCA proceedings;

(c) on the ground that:

(i) a person may consider it necessary to give evidence, or to call evidence from another person, in the POCA proceedings; and

(ii) the evidence is or may be relevant (to whatever extent) to a matter that is, or may be, at issue in criminal proceedings that have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person or any other person;

(d) on the ground that POCA proceedings in relation to another person have been, are to be or may be stayed.

…

(6) In considering whether a stay of the POCA proceedings is in the interests of justice, the court must have regard to the following matters:

(a) that the POCA proceedings, and any criminal proceedings of a kind referred to in paragraph (2)(a) or (b), should proceed as expeditiously as possible;

(b) the cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds;

(c) the risk of a *proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed;

(d) whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings;

(e) any orders (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed.

30. Section 66 of the CPA provides:

66 Adjournment of proceedings

(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.

(2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time.

31. Section 67 of the CPA provides:

67 Stay of proceedings

Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.

32. Section 5(1) of the CPA provides:

5 Jurisdiction of courts

(1) Nothing in this Act or the uniform rules limits the jurisdiction of the Supreme Court.

33. The Commissioner and the Official Trustee cited Ruzehaji v Commissioner of the Australian Federal Police (2015) 124 SASR 355; [2015] SASCFC 182 (“Ruzehaji”) and Onley v Commissioner of Australian Federal Police [2019] NSWCA 101; (2019) 277 A Crim R 200 in support of the proposition that s 319 does not impede the grant of a stay of proceedings under the POC Act to prevent an abuse of process. [7] The High Court provided guidance as to the construction of s 319 in Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 which was cited in Ruzehaji at [88]:

“Section 319, which is set out above, clearly contemplates that where criminal proceedings are brought with respect to an offence related to civil proceedings for restraining orders or forfeiture orders, an application for a stay may be brought. Its terms suggest that a person charged with an offence which is relevant to forfeiture or other civil proceedings brought under the POC Act must do more than point to the existence of criminal proceedings in order to obtain a stay of the civil proceedings.”[8]

…

“Section 319 impliedly acknowledges what is in any case true: that the courts have the power to control their proceedings and to order a stay in an appropriate case. It will be appropriate to do so where the interests of justice require such an order. Section 319 is not expressed to refer specifically to a circumstance where the issues in the forfeiture proceedings and the criminal proceedings are substantially identical. The POC Act does not presume to say what a court should do in such a circumstance.”[9]

7. Ruzehaji v Commissioner of the Australian Federal Police (2015) 124 SASR 355; [2015] SASCFC 182 at [19], [56]-[59] per Gray J (Peek and Nicholson JJ agreeing) and Onley v Commissioner of Australian Federal Police [2019] NSWCA 101; (2019) 277 A Crim R 200 at [333], [339], [342]-[345] and [348] per Basten JA (Meagher JA agreeing).

8. Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 at [30] per French CJ, Hayne, Kiefel, Bell and Keane JJ.

9. Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 at [36] per French CJ, Hayne, Kiefel, Bell and Keane JJ.

34. While the jurisdiction of the Court is not in dispute, the key issue for determination is whether the power to grant the relief sought should be exercised in the circumstances of the case. A further and related question concerns whether allowing both the amended negligence motion and the negligence proceedings to continue, duplicates the issue or whether there are relevant legal or factual differences between the claims that warrant the maintenance of both.

Defaults in the mortgage payments and Tara Global’s allegations of negligence against the Official Trustee

35. There appears to be at least an arguable case that the Official Trustee was negligent in failing to maintain the mortgage repayments and thus defaulting on the mortgage.

36. Extracted below are the relevant orders made on 31 January 2023. Schedule Sixteen identifies the King Street property and Schedule Fifteen refers to the NAB bank account which was directly debited by Perpetual for the monthly mortgage repayments.

“21. Pursuant to section 18(2)(c) of the Act, the property specified in Schedule Fifteen, being property of Tara Global Pty Ltd that is subject to the effective control of Steven Hoitou Xin, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

22. Pursuant to section 18(2)(c) of the Act, the property specified in Schedule Fifteen, being property of Tara Global Pty Ltd that is subject to the effective control of Yi Ming Wang, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

23. Pursuant to section 18(2)(c) of the Act, the property specified in Schedule Sixteen, being property of Tara Global Pty Ltd that is subject to the effective control of Steven Hoitou Xin, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

24. Pursuant to section 18(2)(c) of the Act, the property specified in Schedule Sixteen, being property of Tara Global Pty Ltd that is subject to the effective control of Yi Ming Wang, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

…

115. Pursuant to section 38 of the Act, the Official Trustee is to take custody and control of the property specified in Schedule Fifteen.

116. Pursuant to section 38 of the Act, the Official Trustee is to take custody and control of the property specified in Schedule Sixteen.

…

149. Without limiting any other of the powers or duties of the Official Trustee, pursuant to section 39(1) of the Act, the Official Trustee is permitted, to the extent reasonably necessary, to do any or all of the following with respect to any of the property specified in Schedules Nine, Thirteen, Sixteen, Nineteen, Twenty-Two, Thirty-Six, Thirty-Eight, Forty-Two, and Forty-Five (Controlled Real Property):

(a) gain access to and inspect the Controlled Real Property with 48 hours’ notice;

(b) secure the Controlled Real Property;

(c) insure any building on the Controlled Real Property as and when required;

(d) lease the Controlled Real Property, including doing all things necessary in relation to any existing leases or enter into new leases;

(e) collect any rental monies payable in connection with the Controlled Real Property; and

(f) apply any rental income received from the Controlled Real Property to meet any costs or expenses relating to the said property including management fees and commissions incurred in the ordinary course of business, maintenance costs, insurance, rates, land tax, municipal or statutory charges, and scheduled mortgage repayments.”

The four defaults alleged in the Amended Statement of Claim

37. The amended statement of claim alleges that there were four defaults between January and May 2023:

• On 31 January 2023, when the King Street property came into the custody and control of the Official Trustee, the balance of the loan from Perpetual was $11,010,112.54.

• On or around 21 February 2023 a mortgage repayment became due and payable in the amount of $76,508. The payment was not made resulting in the first default.

• On 28 February 2023 Perpetual charged Tara Global a late payment fee of $42,506.65 as a result of the first default.

• On or around 21 March 2023 a mortgage repayment became due and payable in the amount of $78,830. The payment was not made resulting in the second default.

• On 31 March 2023 Perpetual charged Tara Global a late payment fee of $47,597.42 as a result of the second default.

• On or around 21 April 2023 a mortgage repayment became due and payable in the amount of $82,006. The payment was not made resulting in the third default.

• On 30 April 2023 Perpetual charged Tara Global a late payment fee of $46,597.95 and on 8 May 2023 charged $15,587.04 for associated legal costs.

• On 9 May 2023 Perpetual advised the Official Trustee that loan repayments were being made via direct debit from the NAB account into the La Trobe Financial account.

• On 18 May 2023 the Official Trustee incorrectly directed payment of $82,006 to the NAB account instead of Perpetual as required, resulting in the payment failing. This resulted in the fourth default on or around 23 May 2023.

• On 6 June 2023 Perpetual charged Tara Global $4,971.25 for associated legal costs.

• As at 6 June 2023 the loan balance was $11,543,536.42.

Defaults since May 2023

38. The amended statement of c laim particularises four defaults from February to May 2023. Whilst the Official Trustee began to make some repayments from June 2023 onwards, it appears from Tara Global’s loan activity statement that further defaults occurred since the proceedings were instituted.

• On or around 21 June 2023 a mortgage repayment became due and payable in the amount of $84,342 but was dishonoured.

• On 29 June 2023 the Official Trustee made a repayment of $177,858.46.

• On 30 June 2023 the Official Trustee made a second repayment of $180,458.38.

• On 6 July 2023 the Official Trustee made a third repayment of $69,253.57.

• On or around 21 July 2023 a mortgage repayment became due and payable in the amount of $87,607 but was dishonoured.

• On 11 August 2023 the Official Trustee made a repayment of $69,069.89.

• On 14 August 2023 Perpetual charged Tara Global $24,347.85 in associated legal costs.

• On or around 22 August 2023 a mortgage repayment became due and payable in the amount of $87,607 but was dishonoured.

• On 31 August 2023 Perpetual charged Tara Global a late payment fee of $48,171.08.

• On 8 September 2023 the Official Trustee made a repayment of $52,325.78.

• On or around 21 September 2023 a mortgage repayment became due and payable in the amount of $87,607 but was dishonoured.

• On 30 September 2023 Perpetual charged Tara Global a late payment fee of $46,966.43.

• On 5 October 2023 the Official Trustee made a repayment of $75,310.34.

• On or around 23 October 2023 a mortgage repayment became due and payable in the amount of $87,607 but was dishonoured.

• On 31 October 2023 Perpetual charged Tara Global a late payment fee of $48,804.64.

• On 10 November 2023 the Official Trustee made a repayment of $71,073.90.

• On 16 November 2023 Perpetual charged Tara Global $29,080.78 in associated legal costs.

• On or around 21 November 2023 a mortgage repayment became due and payable in the amount of $87,607 but was dishonoured.

• On 30 November 2023 Perpetual charged Tara Global a late payment fee of $47,635.32.

• On 7 December 2023 the Official Trustee made a repayment of $66,048.39.

• On or around 21 December 2023 a mortgage repayment became due and payable in the amount of $90,056 but was dishonoured.

• On 29 December 2023 the Official Trustee attempted to make a repayment of $90,071 but this was dishonoured on 2 January 2024.

• On 31 December 2023 Perpetual charged Tara Global a late payment fee of $49,171.70.

• On 5 January 2024 the Official Trustee attempted to make a repayment of $90,086 but this was dishonoured on 8 January 2024.

• On 15 January 2024 the Official Trustee made a repayment of $71,353.79.

• On 22 January 2024 Perpetual charged Tara Global $20,027.47 in associated legal costs.

• On or around 23 January 2024 a mortgage repayment became due and payable in the amount of $90,056 but was dishonoured.

• On 31 January 2024 Perpetual charged Tara Global a late payment fee of $49,820.93.

• On 9 February 2024 the Official Trustee made a repayment of $71,089.84.

• On or around 21 February 2024 a mortgage repayment became due and payable in the amount of $90,056 but was dishonoured.

• As at the date of hearing (28 February 2024), the loan balance was $11,742,937.32, that being $732,824.78 more than the day on which the King Street property came into the custody and control of the Official Trustee.

The substance of the allegation that the Official Trustee was negligent in its management of the King Street property

39. Tara Global alleges that there were no defaults on the mortgage repayments up until the King Street property and NAB account came under the custody and control of the Official Trustee. A review of Tara Global’s loan activity statement suggests that there was one prior default on 21 September 2022. However, the repayment was made a week later, on 27 September 2022. That late payment is of little or no significance. The key issue in the negligence proceedings is whether the defaults which occurred while the King Street property and the NAB account were in the custody and control of the Official Trustee reflected a breach of the Official Trustee’s duties and, if so, whether the breach resulted in loss or damage to Tara Global.

40. Tara Global contends that from the making of the restraining orders on 31 January 2023, the Official Trustee owed a duty of care to Tara Global to not be “guilty of negligence in respect of taking custody and control” of the King Street property (POC Act, s 290). Additionally, Tara Global argues that the Official Trustee had a duty of care under both statute, as a public authority within the meaning of Part 5 of the Civil Liability Act 2002 (NSW), which was subject to various duties under the Bankruptcy Act 1966 (Cth), and under the general law. It submits that this duty included an obligation to act promptly and diligently in taking custody and control of the assets, obtaining necessary financial information, and doing all things necessary to make the scheduled mortgage repayments in a timely fashion whilst mitigating any losses. Tara Global alleges that the Official Trustee was in breach of this duty, and that this caused damage to Tara Global.

41. There seems to be no contest that, from the time of the orders on 31 January 2023, both the King Street property and the NAB account were in the custody and control of the Official Trustee and that Tara Global (and its owners and directors) were restrained from dealing with those assets.

42. Tara Global will seek to establish that between 31 January 2023 and 12 April 2023 the Official Trustee did not request information from Perpetual regarding the amount, frequency and due date for the mortgage repayments, or the account details into which the repayments were to be directed and that this resulted in defaults on the mortgage, a threat of foreclosure, and two late payment fees being charged.

43. Tara Global’s allegations are contested. In its defence filed on 21 September 2023, the Official Trustee particularises a number of emails, the first sent on 2 February 2023 by an employee of the Australian Financial Security Authority (which has delegated authority from the Official Trustee) to the Proper Officer at Perpetual. Assuming that these email records are produced, and that they demonstrate the Official Trustee’s efforts to obtain the relevant information to facilitate the mortgage repayments, it may undermine or defeat Tara Global’s allegation of delay and/or negligence.

44. Those are matters for determination at the hearing of the negligence proceedings and it will be open to Tara Global to argue that the Official Trustee could have done more “for the purpose of preserving the controlled property” (POC Act, s 276). For example, after the first email was sent on 2 February 2023 no further follow-up emails were sent until a reply was received more than a month later on 9 March 2023. There seems to be no evidence of any other attempts at making contact with Perpetual such as by ‘phone, which may have allowed the Official Trustee to obtain the necessary information more swiftly.

45. Leaving aside the issue of when the Official Trustee could have obtained the requisite information to begin making the mortgage repayments, there is also a question as to whether there were sufficient funds to make the repayments. The Official Trustee will argue that no rental income (or insufficient rental income which was incapable of meeting the obligations under the mortgage) was received from February to May 2023, and that under restraining order 149, the Official Trustee was only authorised to apply rental income to the mortgage repayments.

46. Against that, Tara Global contends that restraining order 149 should not be read down such as to prohibit the Official Trustee from satisfying the mortgage repayments from other sources such as the funds in the NAB account (which totalled approximately $179,425.81 as at 3 May 2023). Senior Counsel for Tara Global submitted at the hearing:

“Now the Official Trustee seems to [be] saying, oh well, I had no choice about paying the mortgage because the way the order is phrased that didn’t expressly give me the power to pay the mortgage or at least to pay the mortgage from the bank account that it was also holding. But the orders that your Honour made, I submit, do not cut down in any way the statutory power of the Official Trustee. There was an order made at 149, at page 14 of the orders, without limiting any other of the powers or duties of the Official Trustee. Then there is expressed some permission, some granted, including at (f), ‘Apply any rental income received from the controlled real property to meet any costs or expenses.’ Reading down into scheduled mortgage payments.

The Official Trustee seems to have read that as meaning, oh, you can’t pay the mortgage unless it is paid out of rental income. Of course, the scheme of the Proceeds of Crime Act gives a general power for the Official Trustee to preserve controlled property, this is under section 276 of the Act, ‘The Official Trustee may do anything that is reasonably necessary for the purpose of preserving controlled property.’ So it was reasonably necessary to preserve the land that was subject to a mortgage to actually pay the mortgage. The Official Trustee didn’t do that.” [10]

10. Tcpt (28/2/24) pp 13-14.

47. Even if the Official Trustee was confined to applying only rental income to the mortgage, Tara Global submits it could have acted more quickly in seeking to vary the restraining orders to permit the direct debit of the NAB account. Orders to that effect were not made until 23 June 2023 but partial payments could have been made in the interim from as early as April 2023. Tara Global also points to the further defaults since the period of February to May 2023 and the increase of $732,824.78 in the debt since the account came under the control of the Official Trustee. While there was no evidence of the rental income in the evidence on the interlocutory application, the oral submissions suggested that the rent is insufficient to satisfy the mortgage repayments in full and the money in the NAB account is now “expended”. [11] Senior Counsel for Tara Global submitted that it may have been possible for the Official Trustee, in doing everything necessary “for the purpose of preserving the controlled property” (POC Act, s 276), to have found alternative sources of funds to satisfy the repayments or at least reduce the losses caused:

“Of course, as my friend, Mr Moses correctly says, the trustee is not obliged just to take money from anywhere and pay the mortgage of one of the companies that it’s got custody over its property. But of course if we can find some other money that can be used to pay the mortgage, that’s another matter.” [12]

11. Tcpt (28/2/24) p 33.

12. Tcpt (28/2/24) pp 33-34.

Tentative assessment of negligence claim

48. As I have said, there is no application for summary dismissal of the negligence claim (whether it be prosecuted on the amended notice of motion in the substantive POCA proceedings or by the separate statement of claim). Tara Global appears to have an arguable case. That case is not without complications, is subject to dispute and the defence notified is not untenable. All that needs to be said for the present purposes is that Tara Global’s case alleging negligence is arguable despite its complications. It is not for me to determine the matter on the question of negligence, particularly in the absence of all of the evidence, but it seems that there is at least a genuine litigable question which Tara Global is entitled to pursue against the Official Trustee.

The application for a stay of proceedings

49. A party who or which invokes the jurisdiction of a court has a prima facie right to insist that the court exercise its jurisdiction to hear and determine the matter. [13] However, there is a statutory power for all courts to stay any proceedings before the court, either permanently or until a specified day: CPA s 67. This Court also has inherent power to stay proceedings which are an abuse of process: Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 (“Walton”); Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46. [14]

    13. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 241 per Deane J; [1988] HCA 32; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554 per Mason CJ, Deane, Dawson and Gaudron JJ; [1990] HCA 55; Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23 at [10] per Kiefel CJ and Bell J.

    14. See also Gore v Van der Lann [1967] 2 QB 31; [1967] 1 All ER 360 and Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 at [10] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

50. Presently, the Commissioner seeks a stay of the proceedings brought by the amended negligence motion until forfeiture orders are made or the POCA proceedings are otherwise resolved. The Official Trustee seeks a similar order with respect to the negligence proceedings.

51. There are two bases upon which these orders are sought, and I am here paraphrasing, if not recasting and simplifying, the arguments. First, it is submitted that making orders in the negligence proceedings would be futile until there is a resolution of the application for forfeiture of the King Street property. Secondly, it is submitted that to maintain both sets of negligence proceedings is an abuse of process in the sense that there is a duplication of both the particulars of the allegation of negligence and the relief sought.

Abuse of process and the general right of litigants to access the courts for resolution of its claim

52. The notion of an “abuse of process” is applied in a variety of circumstances and there is no exhaustive definition because the categories of abuse of process is not closed. At a basic level, an abuse of process occurs when a court’s process is used for an improper purpose or in circumstances where it is not capable of achieving the purpose it was intended to serve, that is, where processes which exist to “administer justice with fairness and impartiality” are converted into “instruments of injustice or unfairness”: Walton at 393 per Mason CJ, Deane and Dawson JJ.

53. In Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, McHugh J summarised the categories of abuse as follows (at 286):

“Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court’s process.”

54. This analysis has been approved and adopted on many occasions: see, for example, Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [89] per Gummow ACJ, Hayne, Crennan and Bell JJ; Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 (“Batistatos”) at [15] per Gleeson CJ, Gummow, Hayne and Crennan JJ; PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384 at [3] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.

55. In GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (“GLJ”), the High Court held that to enliven the power to grant a permanent stay requires a degree of “exceptionality”. As Deane J explained in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 at 399, there is “a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is ‘amenable to the jurisdiction’ of the courts”.

56. In GLJ, Kiefel CJ, Gageler and Jagot JJ said at [17]-[18]:

“The extreme step of the grant of a permanent stay of proceedings demands recognition that the questions whether a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process each admit of but one uniquely right answer. As Leeming JA observed in Moubarak by his tutor Coorey v Holt, while the ‘distinction between a trial being necessarily unfair and a trial which is so unfairly and unjustifiably oppressive as to constitute an abuse of process is no doubt a fine one’, the distinction exists and was the ratio in Walton v Gardiner and the extant test for abuse of process when s 6A of the Limitation Act was enacted. Every case in which a fair trial cannot be held will also involve such unfairness to or oppression of a defendant as to constitute an abuse of process. But such unfairness to or oppression of a defendant as to constitute an abuse of process may exist even if a fair trial can be held. In both cases, while the answer to each question involves an evaluative process, the law tolerates but one correct answer.

…

A trial which will be necessarily unfair or which acts as an instrument of unfairness and oppression to a defendant cannot yield a legitimate verdict within that system and thereby the holding of the trial and rendering of a verdict will bring the administration of justice into disrepute. The doctrine of abuse of process is one element in a court’s armoury to protect the administration of justice, but it is to be understood as a measure of last resort to be exercised only in exceptional circumstances.”

57. The common law defends the right of all persons to enjoy access to the courts. [15] To deny a person this right, and to deny the opportunity of recourse to a court to have their case heard and determined is an extreme remedy and a court must be satisfied that there are exceptional circumstances warranting the grant of a stay or summary dismissal. [16] In Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 Dixon J said (at 91):

“A case must be very clear indeed to justify the summary intervention of the court … [O]nce it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

15. See, for example, Johnson v Gore Wood & Co [2002] 2 AC 1; [2001] 1 All ER 481 cited with approval in Livingstone v Mitchell [2020] NSWSC 1464 at [68] per Adamson J.

16. Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at 392 per Mason CJ, Deane and Dawson JJ; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [79] per McColl JA (Giles and Campbell JJA agreeing); Toben v Nationwide News Pty Ltd (2016) 93 NSWLR 639; [2016] NSWCA 296 at [97] per Ward JA (Payne and Meagher JJA agreeing) citing Williams v Spautz (1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ; [1992] HCA 34.

58. In General Steel Industries Inc v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125; [1964] HCA 69 Barwick CJ said at 130:

“[G]reat care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.”

59. See also the comments of Kirby J (dissenting in the outcome) in Batistatos at [160]-[162].

60. Even so, the power of a court to stay proceedings, permanently or conditionally, is one of long standing. However, in exercising that power it is necessary to have regard to the consequences of such an order and to recognise that such orders have the capacity to “[shut] a party out of court”: Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23 at [72] per Gordon and Edelman JJ, citing Gao v Zhang (2005) 14 VR 380; [2005] VSCA 200 at [12].

Duplication of proceedings and the regulation and control of the Court’s process

61. However, granting a stay of proceedings is not confined to the kind of abuse of process that warrants an order for a permanent stay of proceedings. Section 67 of the CPA is of sufficient breadth to provide a means by which a court can regulate its own process. As the Commissioner submitted in oral submissions by reference to the decision in GLJ (particularly at [24]):

“It is an instructive judgment, because the High Court has in that judgment given close attention to s 67, reinforcing it as a broad power that your Honour, as a judicial officer, has the discretion to regulate your processes and manage cases before you in accordance with the objects of the Civil Procedure Act.” [17]

17. Tcpt (28/2/24) p 26.

62. The “power to order a stay provided by s 67 of the CPA is available as a tool to resolve the problem presented by multiple proceedings”: Wigmans v AMP Ltd (2021) 270 CLR 623; [2021] HCA 7 (“Wigmans”) at [14] per Kiefel CJ and Keane J. The power overlaps with the Court’s inherent power to stay a proceeding to prevent abuse of its processes, which extends to staying proceedings that are frivolous, vexatious or oppressive: Wigmans at [72] per Gageler, Gordon and Edelman JJ.

63. Kermani v Westpac Banking Corporation (2012) 36 VR 130; [2012] VSCA 42 (“Kermani”) at [97] per Robson AJA (Neave and Harper JJA agreeing) (references and footnotes omitted):

“… (9) It is prima facie vexatious to bring two extant civil actions where one will lie.

(10) This prima facie rule applies whether or not the two proceedings are in separate courts or one.

(11) The prima facie rule applies where the issues overlap or significantly overlap or there is a similarity of subject matters of the proceedings.

(12) The fact that the parties may not be identical, or the relief different, does not necessarily disentitle relief under this principle.

(13) In considering whether the rule should apply, the court should consider whether there was no reasonable justification for the second proceeding based on legitimate considerations of convenience, cost or the like.”

64. In Moore and Others v Inglis (1976) 9 ALR 509; (1976) 50 ALJR 589 Mason J (as he then was, and sitting as a single judge of the High Court) stayed proceedings because the plaintiff had already instituted proceedings in another court on the same subject matter. The plaintiff commenced proceedings in the Supreme Court of the Australian Capital Territory seeking damages arising from an alleged conspiracy. While those proceedings were pending, the plaintiff commenced proceedings in the original jurisdiction of the High Court alleging the same conspiracy formulated differently. The two proceedings were extant and neither had been determined. Mason J noted that if a proper case were made out, the Supreme Court proceeding could be amended to add or remove parties. His Honour said (at 515):

“Although I acknowledge that the plaintiff may not secure all the amendments which she desires it is neither just nor fair that she should, after commencing one action which is about to come to issue on the pleadings, bring another action on the same subject matter, making minor alterations only to the substantive allegations and to the parties. She must make up her mind once and for all as to how she is going to present her case.”

65. In Thirteenth Corp Pty Ltd v State and Others [2006] FCA 979; (2006) 232 ALR 491, Jessup J referred in detail to Moore v Inglis and drew from Mason J’s decision the following principle (at [41)]:

“The important, perhaps critical, point was that the court in which the earlier proceeding was commenced had jurisdiction to deal with everything raised in the later proceeding and there was no reasonable justification, based on legitimate considerations of convenience, cost or the like, for commencing the second proceeding rather than seeking to amend the earlier.”

66. The plaintiff does not need to be the same for a court to find there has been an abuse of process based on a multiplicity or duplication of proceedings. In Kermani it was said by Robson AJA at [112]-[113] (Neave and Harper JJA agreeing):

“In considering abuse of process where second proceedings are taken raising the same or similar issues, it is not necessary that the plaintiffs or claimants be the same, if they are otherwise connected. In Johnson v Gore Wood & Co, Lord Bingham said:

‘Two subsidiary arguments were advanced … in the courts below and rejected by each. The first was that the rule in Henderson v Henderson … did not apply to Mr Johnson since he had not been the plaintiff in the first action…In my judgment this argument was rightly rejected. A formulaic approach to application of the rule would be mistaken. [The company] was the corporate embodiment of Mr Johnson. He made decisions and gave instructions on its behalf. If he had wished to include his personal claim in the company’s action, or to issue proceedings in tandem with those of the company, he had power to do so.’

This principle was cited with approval by Handley AJA in Champerslife Pty Ltd v Manojlovski. Handley AJA went on to say:

‘That decision is hardly surprising. Earlier proceedings by one litigant could not make later proceedings by another an abuse of process unless there was a relevant connection between the litigants. Since the issue was abuse of process realities must be relevant.’”

67. In Lidden v Composite Buyers Ltd (1996) 139 ALR 549, Finn J said at 559:

“It is the case that, where proceedings have been started in one court, it is an abuse of process to duplicate proceedings in another court when a complete remedy is available in the first court. It likewise seems the case that where proceedings are pending in a court, a separate action in the same court should at least by stayed where both actions involve the same parties and the same subject matter and where the hearing of the first will effectively dispose of the need for the hearing of the second.” (Emphasis added)[18]

18. The reported judgment (1996) 67 FCR 560 does not include the quoted paragraph.

The power to stay under the POC Act

68. The Commissioner relies on s 319 of the POC Act which provides in sub-s (1):

“A court may stay proceedings (the POCA proceedings) under this Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so.”

69. For the sake of the argument, and based on the authorities cited by the Commissioner, I accept that the section is broad enough to encompass the amended negligence motion. However, based on a consideration of the terms of the section and the surrounding sections, it is primarily concerned with the primary POCA proceedings, that is the proceedings commenced by the Commissioner seeking (ultimately) forfeiture of the identified property.

70. None of the matters referred to in sub-s 319(2), which prohibits the granting of a stay in certain circumstances, arise in the present case.

71. In determining whether a stay of the POCA proceedings is in the interests of justice, the Court must have regard to the following matters set out in s 319(6):

1. The POCA proceedings should proceed as expeditiously as possible;

2. The cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds;

3. The risk of a proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed;

4. Whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings; and

5. Any order (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed.

72. The Commissioner submitted, and I accept, that s 319 does not preclude the Court from considering other matters that the Court considers to be relevant and does not otherwise interfere with the power of the Court to stay the POCA proceedings so as to prevent an abuse of process.

73. During the hearing Senior Counsel for Tara Global accepted that s 319:

“… gives the power but the scheme of 319 is to make it more difficult than normal to stay anything in POCA proceedings. So normally it would be Tara Global or Mr Xin or someone like that seeking to stay where all the injunctions will work against him, but in this unusual instance where it’s the Commissioner seeking a stay, then the same presumption against granting a stay applies to the Commissioner as it applies to anybody else, mandatory considerations.” [19]

19. Tcpt (28/2/24) p 36.

74. In the circumstances of the present case, it is not necessary to determine the correctness of or limitations that should be placed on this submission. In the end, it is not and cannot be disputed that the Court has the power to stay or adjourn the amended negligence motion or to make other orders calculated to control its own processes.

Determination of the application for a stay in the present case

75. I do not accept that the amended negligence motion, or the negligence proceedings, should be subject to a conditional stay of proceedings based on the argument that any such proceedings (or any award of damages arising therefrom) might ultimately be, or is, subject to restraining orders. I accept that this is a possible outcome, but I do not accept the premise (to say the quiet part of the submission out loud) that forfeiture is inevitable. I have insufficient evidence to come to such a conclusion. Staying the proceedings on this basis has a capacity to prejudice Tara Global (and the other defendants who may be impacted) because it will put those proceedings on hold while the primary POCA proceedings make their way towards the final hearing as to forfeiture.

76. However, there is little or no utility in allowing the amended negligence motion or the negligence proceedings to be determined in advance of the substantive proceedings while there is a real prospect that any such cause of action, or any damages that may flow, may be subject to forfeiture.

77. The conclusion stated in the last paragraph is subject to an exception concerning the orders sought in relation to possible action by Perpetual to exercise its right to sale under the mortgage.

78. On the other hand, I accept the Commissioner’s submission that “[t]here is substantial overlap between the Amended Negligence motion and the Negligence Proceeding both in terms of the allegations made against the Official Trustee and in the relief sought.” While the Commissioner does not go so far as to argue that the maintenance of two sets of proceedings is an abuse of process, that does not determine the appropriateness of a stay of proceedings based on such duplication. I am satisfied that, subject to appropriate orders designed to protect Tara Global’s position by allowing it to amend its statement of claim, the amended negligence motion should be stayed pending the outcome of both the substantive POCA proceedings and the substantive negligence proceedings.

79. Accordingly, subject to fashioning orders that protect Tara Global’s position, and based on the duplication of the proceedings, I will make an order staying the proceedings on the amended negligence motion.

80. Conversely, I do not accept that it is in the interests of justice to make any order staying the proceedings brought by the separate negligence proceedings. However, I generally accept the Commissioner’s submission that those proceedings should not proceed in advance of the substantive POCA proceedings and determination of the question of forfeiture. Even so, Tara Global should be permitted to continue to prepare its negligence case for hearing and take such interlocutory steps as may be appropriate to ensure its cause of action is determined as expeditiously as possible.

Adjournment and ordering that the proceedings be heard together.

81. In the alternative to a temporary or conditional stay, the Commissioner and the Official Trustee sought an order adjourning the amended negligence motion and/or the negligence proceedings until the forfeiture hearing.

82. The Court has both an inherent power and a specific statutory power to adjourn the hearing of proceedings if it is appropriate to do so “in order to do justice between the parties”. [20] The exercise of such a power must accord with the overarching purpose of the CPA (s 56) to facilitate the just, quick and cheap resolution of the real issues, in line with the dictates of justice (s 58) and the need to eliminate delays (s 59).

    20. See, for example, Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 252; 54 LGRA 232 per Kirby P and the Civil Procedure Act 2005 (NSW), s 66.

83. In Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841, the majority of the High Court observed at 844:

“In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties … What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.”

84. I am satisfied in the circumstances of the present case that it is appropriate to order that the negligence proceedings be heard together with the substantive POCA (forfeiture) proceedings and that the proceedings be adjourned to allow that to occur. However, there will be a potential carve out of that part of the proceedings whereby Tara Global may seek injunctive relief to prevent the sale of the property by Perpetual. At this stage, while Perpetual’s application for its interest in the King Street property to be excluded from the restraining orders is outstanding, that is a moot point. However, any orders I make at this stage must acknowledge, and preserve, Tara Global’s interest and right to bring such a motion and to do so before the final resolution of the substantive proceedings.

Differences between the amended negligence motion and the negligence proceedings and orders calculated to protect the interests of Tara Global

85. I have already indicated my conclusion that it is not in the interests of justice that both the amended negligence motion and the negligence proceedings remain on foot, and that a conditional stay of the former is appropriate. However, in deference to the submissions made on behalf of Tara Global, I should set out the extent to which the proceedings overlap and the differences that exist between them. That analysis will inform any orders that should be made to protect Tara Global’s interests.

86. It was Tara Global’s position, as conveyed by Senior Counsel for the Commissioner and the Official Trustee at the hearing, that Tara Global seeks to maintain both sets of proceedings because different relief is sought in each. That is conveyed in the following exchange:

“HIS HONOUR: You will have to forgive me if I ask questions that might be considered naive, but is the substance of the notice of motion for declarations of negligence, in essence, the same at least factually, if not legally, as the statement of claim in negligence? That is the failure to, if you like, maintain the property by making interest payments?

MOSES: We submit, it is. It is a matter that our friends from Perpetual have raised in their submissions. I have raised briefly with my friend this morning the utility of that motion in light of the statement of claim that has been filed… to answer your Honour’s question directly, it is the same factual assertions underpinning--

HIS HONOUR: It is more complicated than failing to maintain the mortgage repayments?

MOSES: That’s correct, that is the essence of the allegation.” [21]

21. Tcpt (28/2/24) p 4.

87. The amended negligence motion seeks two additional orders beyond an award of damages. The motion seeks an order preventing Perpetual from selling the King Street property and an order that the property be returned to the custody and control of Tara Global (although this contention is made with certain caveats and seems on its face an optimistic application in the circumstances). The restraining order is extremely significant for Tara Global because, as it was put by Senior Counsel, if “[i]t loses its property, it can never get that back, it’s just gone.” [22]

    22. Tcpt (28/2/24) p 38.

88. Any orders made should give Tara Global the opportunity to amend the statement of claim in the negligence proceedings to seek such additional relief.

89. Both the statement of claim in the negligence proceedings and the amended negligence motion allege that the Official Trustee has been “guilty of negligence” within the meaning of s 290 of the POC Act and Tara Global is entitled to relief in the form of damages. The amended negligence motion specifically seeks an order for damages from the Official Trustee and, in the alternative, from the Commissioner (on the basis of the Commissioner’s “usual undertaking” when the restraining orders were made).

90. However, the amended statement of claim does not name the Commissioner as a defendant. While any award of damage would no doubt fall within the Commissioner’s undertaking as to damages while it remains extant, it may be that, if the amended negligence motion is stayed, Tara Global would seek to add the Commissioner as a defendant in the negligence proceedings.

91. The amended statement of claim also brings a claim for breach of contract against Perpetual which, presumably, would require Perpetual to pay damages. No such order for damages from Perpetual is contained in the amended negligence motion. Staying the amended negligence motion will not deprive Tara Global from pursuing an action for damages based on the asserted breach of contract on the part of Perpetual.

The application by Tara Global for injunctive relief against Perpetual

92. An important issue for Tara Global (and those with an interest in that company) is its application for injunctive relief against Perpetual. That application is raised in Prayer 5 of the amended negligence motion and seeks to restrain Perpetual from selling the King Street property.

93. On 1 March 2023 Perpetual issued a notice on Tara Global under s 57(2)(b) of the RPA which provides:

57 Procedure on default

…

(2) A registered mortgagee, chargee or covenant chargee may, subject to this Act, exercise the powers conferred by section 58 if—

…

b) where—

(i) the default relates to that payment, or

(ii) in the case of a mortgage, the default does not relate to that payment and notice or lapse of time has not been dispensed with under section 58A,

a written notice that complies with subsection (3) has been served on the mortgagor, charger or covenant charger in the manner authorised by section 170 of the Conveyancing Act 1919.

94. Section 58(1) of the RPA confers the power to sell land subject to a mortgage, or any part thereof, “where a mortgagee, chargee or covenant chargee is authorised by s 57(2) to exercise the powers conferred by this section”.

95. The amended negligence motion seeks to restrain Perpetual from taking any steps to enforce the notice issued under s 57(2)(b) or any future notices it may issue. However, as I have said, no such order is sought in the amended statement of claim. This results in the potential for injustice if the amended negligence motion is stayed. However, I can see no reason why an amendment could not be made to the initiating process or, alternatively, that urgent injunctive relief could not be sought by notice of motion in the negligence proceedings.

96. Accordingly, to prevent prejudice to Tara Global – who I understand brought the separate proceedings after comments or orders made by another Judge of this Division – the stay will be conditional upon it having leave to amend its statement of claim or to bring an application for injunctive relief of the kind sought in the amended negligence motion.

97. Whether Tara Global would be likely to succeed in obtaining emergency injunctive relief will depend upon whether it could establish that:

1. There is a serious question to be tried as to their entitlement to relief;

2. They are likely to suffer injury for which damages would not be an adequate remedy; and

3. The balance of convenience favours the granting of an injunction. [23]

   23. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [19] per Gleeson CJ and Crennan J agreeing with the explanation of the organising principles in the reasons of Gummow and Hayne JJ at [65]-[72].

98. While judgment on the exclusion application by Perpetual remains reserved before Rothman J, any application for emergency injunctive relief would seem to be premature at this stage. Further, in relation to the second point listed above, it may be that the Commissioner’s undertaking as to damages, given in accordance with s 21 of the POC Act when the matter came before me on 31 January 2023, [24] would be an adequate remedy. That may become a matter for consideration of the Judge who hears any application for injunctive relief and I note that Senior Counsel for Tara Global resisted forcefully that damages would be an adequate remedy. [25]

    24. Tcpt (31/1/23) p 4.

    25. Tcpt (28/2/24) p 16.

Delays in the proceedings

99. The restraining and control orders were made in January and February of 2023. One of the mandatory considerations under s 319 of the POC Act is that the proceedings be dealt with as expeditiously as possible. From what I was told at the hearing, there is no suggestion on Tara Global’s part of any “dragging [of the] heels” on the part of the Commissioner and “multiple examinations” have been conducted in accordance with the orders made last year and under the POC Act.

100. However, while not directly contradicting the Commissioner’s submissions, Senior Counsel for Tara Global did express concerns at the hearing that the POCA proceedings may take “many years … for all these examinations to take place” and noted that the Commissioner had explained “how slow things are going and how they’re going to be slow and are necessarily slow”.

101. There has been some delay in the delivery of this judgment, although I note Senior Counsel on behalf of the Commissioner indicated “there is no, for our part, urgency”. [26] I also understand that judgment on Perpetual’s application that its interest in the King Street property be excluded from the restraining order has been reserved for some time. While delay is perhaps inevitable when dealing with proceedings as complex as the present, which concerns 20 named defendants and assets valued at over $200 million, I will simply note my expectation that the proceedings will be conducted expeditiously in order to resolve the property rights of those impacted by the restraining orders. I make no formal orders in this regard but simply put my thoughts on the record lest it becomes an issue between the parties as the matter progresses.

     26. Tcpt (28/2/24) p 48.

Orders

102. For the forgoing reasons, I make the following orders:

1. The notice of motion brought by Tara Global Pty Ltd on 3 July 2023 and amended on 15 October 2023 in proceedings 2023/32255 is stayed on the following conditions:

1. Tara Global Pty Ltd shall have leave to amend its statement of claim in proceedings 2023/263865 in accordance with this judgment including (but not limited to) by adding the Commissioner of the Australian Federal Police as a defendant to those proceedings.

2. The staying of the proceedings does not prevent Tara Global Pty Ltd from seeking injunctive relief in accordance with its notice of motion but should do so in proceedings 2023/263865.

3. Such stay to remain in force until resolution of proceedings 2023/32255 and 2023/263865.

2. The application to stay proceedings 2023/263865 is dismissed.

3. Any amendment to the statement of claim in proceedings 2023/263865 is to be filed and served on or before Friday 9 August 2024.

4. Proceedings 2023/263865 shall be joined with proceedings 2023/32255 and are to be heard together.

5. Each of those proceedings is adjourned for mention and case management before the Registrar on Monday 12 August 2024.

6. Costs of each of the notices of motion are reserved to the trial Judge.

Costs

103. I have not heard argument as to the appropriate costs order. However, each party has had some success and I have not accepted the Commissioner’s principal submission that both sets of negligence proceedings should be stayed until the forfeiture proceedings are finalised or its assertion that Tara Global was engaging in an exercise of “Alice in Wonderland statutory construction.” [27]

     27. Tcpt (28/2/24) p 45.

104. The parties will have 14 days to approach my Associate if they seek to argue that some other costs order should be made. Otherwise, the order will be as per order (6) above.

**********

Endnotes

Decision last updated: 12 July 2024