Commissioner of the Australian Federal Police v Dickson (No. 2)

[2016] NSWSC 574

Supreme Court

New South Wales

Medium Neutral Citation:	Commissioner of the Australian Federal Police v Dickson (No. 2) [2016] NSWSC 574
Hearing dates:	2 May 2016
Decision date:	02 May 2016
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Dismiss the fourth defendant’s application for exclusion from forfeiture made by motions filed on 10 August 2015 and 1 December 2015.  (2) Order the fourth defendant to pay the plaintiff’s costs.
Catchwords:	CRIMINAL ASSETS – proceeds of crime – application for exclusion from forfeiture – Commissioner must have opportunity to conduct examinations – non-attendance by applicant at examination and at hearing – application dismissed
Legislation Cited:	Criminal Code Act 1995 (Cth), ss 11.5, 135.4, 400.3 Proceeds of Crime Act 2002 (Cth), ss 18, 92, 93, 94, 180, 180A, 183, 185, 195, 337, 338 Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Category:	Principal judgment
Parties:	Commissioner of the Australian Federal Police (Plaintiff) Anthony James Dickson (Defendant) Dagma Maxianova (4th Defendant)
Representation:	Counsel: E Cheeseman SC/JC Conde N Siafakas   Solicitors: Australian Federal Police (Plaintiff) Tully & Chiper Lawyers (4th Defendant)
File Number(s):	2012/108929

Judgment

Introduction

1. By notice of motion, filed in Court on 29 April 2015, the Commissioner of the Australian Federal Police (the Commissioner) seeks an order that the applications made by Dagmar Maxianova (the fourth defendant) (by notices of motion filed on 10 August 2015 and 1 December 2015) for exclusion from forfeiture of certain property be dismissed.

2. The plaintiff relied on the affidavit of Alana Claire Jessep sworn 28 April 2016.

3. At the conclusion of the hearing of the Commissioner’s application I made an order dismissing Ms Maxianova’s application for exclusion and ordering her to pay the Commissioner’s costs. My reasons for these orders follow.

Relevant legislative provisions

Proceeds of Crime Act 2002 (Cth)

4. Section 94(6) of the Proceeds of Crime Act 2002 (Cth) (the Act) deals with excluding property from forfeiture and relevantly provides:

(1) The court that made a *restraining order referred to in paragraph 92(1)(b) must make an order excluding particular property from forfeiture under this Part if:

(a) a person (the applicant) has applied for an order under this section; and

…

…

(6) The application must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.

[Terms marked with an asterisk are defined in s338 of the POCA].

5. Section 180 of the Act relevantly provides:

Examination orders relating to restraining orders

(1)  If a * restraining order is in force, the court that made the restraining order, or any other court that could have made the restraining order, may make an order (an examination order ) for the * examination of any person, including:

(a)  a person whose property is, or a person who has or claims an * interest in property that is, the subject of the restraining order; or

(b)  a person who is a * suspect in relation to the restraining order; or

(c)  the spouse or * de facto partner of a person referred to in paragraph (a) or (b);

about the * affairs of a person referred to in paragraph (a), (b) or (c).

(2)  The * examination order ceases to have effect if the * restraining order to which it relates ceases to have effect.

6. Section 180A of the Act provides:

Examination orders relating to applications for exclusion from forfeiture

(1)  If an application for an order under section 73 or 94 for an * interest in property to be excluded from forfeiture is made, the court to which the application is made may make an order (an examination order) for the * examination of any person including: 

(a)  a person who has or claims an interest in the property; or 

(b)  the spouse or * de facto partner of a person referred to in paragraph (a); 

about the * affairs of a person referred to in paragraph (a) or (b). 

(2)  The * examination order ceases to have effect when: 

(a)  the application is withdrawn; or 

(b)  the court makes a decision on the application.

7. Section 92 of the Act provides that property which has been the subject of a restraining order is forfeited to the Commonwealth within six months of, relevantly, the conviction day, unless an extension order has been made under s 93.

8. Section 93 of the Act, which provides for orders for extension, provides that an order for extension cannot extend beyond 15 months from the date of conviction.

Uniform Civil Procedure Rules 2005 (NSW)

9. Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) confers power on the court to dismiss frivolous or vexatious proceedings in the following terms:

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

The facts

10. The fourth defendant became the third wife of Anthony Dickson (the first defendant) when they married in Bratislava on 10 July 2004. She was then 28 years old. The first and fourth defendants ceased to cohabitate as a married couple sometime around 2010 or 2011. They assert that they have been divorced.

11. By contract dated 8 February 2005, Mr Dickson agreed to purchase a residential property at Northbridge for $4.6million. Subsequently, Ms Maxianova was substituted as the purchaser. Upon settlement of the purchase she was registered as the sole proprietor of the property. There is a registered mortgage on the title of the property in favour of the fifth defendant, Dampier Finance FX Strategies Limited, a deregistered company, which was previously registered in New Zealand. No application had been made by the fifth defendant in respect of its interest.

12. On 5 April 2012, McCallum J made orders pursuant to s 18 of the Act restraining the interests of Mr Dickson and Ms Maxianova in the Northbridge property, in part on the basis that the Commissioner established that there were reasonable grounds to suspect that the Northbridge Property was under Mr Dickson’s effective control (as defined in s337); and Mr Dickson had committed a serious offence (as defined in s338).

13. Her Honour also made orders pursuant to s 180 of the Act orders for the examination of Ms Maxianova about Mr Dickson’s affairs of the first defendant: (McCallum J: Order 18(a)). An examination notice directed to Ms Maxianova was issued by Deputy President Tamberlin of the Administrative Appeals Tribunal, in his capacity as an approved examiner under the Act. Ms Maxianova was examined on 15 April 2013 pursuant to the s180 order.

14. On 20 March 2015, Mr Dickson was convicted and sentenced following trial by jury for offences contrary to:

1. s 135.4(5) of the Schedule to the Criminal Code Act 1995 (Cth) (dishonestly causing a loss, or dishonestly causing a risk of loss, to a third person, namely the Commonwealth, knowing or believing the loss would occur or where there was a substantial risk of the loss occurring); and

2. ss 11.5(1) and 400.3(1) of the Schedule to the Criminal Code Act 1995 (Cth) (conspiring with Mr Issakidis (the second defendant) to deal with property of a value of $1m or more believing it to be the proceeds of crime).

15. As referred to above Ms Maxianova filed two separate applications for exclusion from forfeiture pursuant to s 94, on 10 August 2015 and 1 December 2015 respectively. She ultimately filed her evidence in support of her application on 1 December 2015. Although the timetable provided for any further evidence to be filed by 22 February 2016, no further evidence was filed.

16. On 8 December 2015, Schmidt J made orders by consent: extending the automatic forfeiture time to 19 May 2016. Her Honour also ordered that Mr Dickson and Ms Maxianova be examined pursuant to s180A of the Act. The Court noted that the intention was that those examinations would occur on or before 31 March 2016, before the Commissioner was required to file the evidence on which he sought to rely in opposition to the applications that certain property be excluded from forfeiture.

17. On 18 February 2016, examination notices were issued to Mr Dickson and Ms Maxianova in accordance with ss 183 and 185(2) of the Act for their attendance for examination and for the production of certain documents before Senior Member Lazanas, in her capacity as an approved examiner under the Act. On or about 19 February 2016, the March examination dates were rescheduled to the dates in April 2016 to accommodate the examinees. Ms Maxianova was required to attend her examination and produce certain documents on 8 April 2016.

18. On 30 and 31 March 2016, Ms Maxianova’s solicitors applied to Senior Member Lazanas for an order permitting her to appear at her examination by video-link. The Commissioner opposed that application.

19. On 5 April 2016, Senior Member Lazanas refused Ms Maxianova’s application on the bases that the Senior Member was not satisfied:

1. that video-link facilities were or could be reasonably made available in Bratislava (noting that Ms Maxianova was aware since 22 February 2016 that any request to appear via video-link would need to be accompanied by evidence that such facilities either were or could be made available);

2. that attendance in person would cause unreasonable expense or inconvenience to Ms Maxianova in circumstances where the Commissioner had undertaken to pay her reasonable travel costs and expenses to attend the examination in Australia; and

3. it would not be consistent with the interests of justice that she be examined by video-link.

20. On 8 April 2016, Ms Maxianova failed to attend her examination. As a result, the Commissioner was denied the opportunity to conduct an examination of her regarding her exclusion from forfeiture application.

21. On 12 April 2016, the Commissioner wrote to the solicitors for Mr Dickson and Ms Maxianova and confirmed that each was required to attend in person for cross-examination at the hearing of their exclusion from forfeiture applications. The Commissioner also noted that Ms Maxianova’s failure to attend her examination on 8 April 2016 may not only constitute an offence under s 195 of the Act but also have the effect that Ms Maxianova’s exclusion application would be dismissed by reason of s 94(6) of the Act.

22. By operation of s 92 of the Act and two extensions of time granted under s 93, the Northbridge Property is due to automatically forfeit to the Commonwealth by 19 May 2016 unless either: an exclusion order is made; or a further order extending the time for automatic forfeiture under s 93. No order can be made extending the time beyond 20 June 2016 (being 15 months from the date of conviction).

Consideration

23. Section 94(6) of the Act prohibits the hearing of Ms Maxianova’s exclusion application until the Commissioner has had a reasonable opportunity to conduct examinations in relation to her application. Because of Ms Maxianova’s refusal to attend the examination on 8 April 2016, the Commissioner has not had such an opportunity. Accordingly, I am not entitled to entertain her application.

24. It follows that her application must be dismissed by reason of the statutory prohibition in s 94(6).

25. The Commissioner also contended that I ought also dismiss the proceedings by Ms Maxianova on the grounds that they constitute an abuse of process: UCPR r 13.4(1)(c). Mr Siafakas appeared on behalf of Ms Maxianova for the purposes of her application to give evidence by video-link (which I refused). He would have appeared on her behalf had she attended the hearing but sought leave to be excused once it became clear that she was not going to appear at the hearing. He contended in support of her application to give evidence by video-link that she was a single mother and living in Bratislava with her daughter, that her parents were elderly and required care and that she would lose her job if she took time off to come to Australia. These matters could not be tested. If they had been established it may be that they would have the effect that the application could not properly be characterised as an abuse of process. By reason of the statutory prohibition, it is not necessary to determine whether her application for an exclusion order amounts to an abuse of process since the consequence of s 94(6) is that her application must not be heard.

Orders

26. Following the hearing of this application on 2 May 2016 I made the following orders:

1. Dismiss the fourth defendant’s application for exclusion from forfeiture made by motions filed on 10 August 2015 and 1 December 2015.

2. Order the fourth defendant to pay the plaintiff’s costs.

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Decision last updated: 19 April 2018