Commissioner of the Australian Federal Police v Fu

Case •

[2015] NSWSC 686

•

02 June 2015

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Commissioner of the Australian Federal Police v Fu [2015] NSWSC 686
Hearing dates:2 June 2015
Date of orders: 02 June 2015
Decision date: 02 June 2015
Jurisdiction:Common Law
Before: Davies J
Decision:

1. I extend time to 7 July 2015 for the filing and serving by the Defendant and the Interested Party of affidavits containing identical evidence to the following affidavits: Michael Albert Mundt sworn 25 May 2015; Jing Gao Fu affirmed 14 May 2015; Ya Chun Shi affirmed 15 May 2015, Qiong Fu affirmed 28 April 2014, Qiong Fu affirmed 12 May 2015 and Ya Qing Shi affirmed 11 May 2015; but corrected to comply with the Rules as to translation and execution.
2. Any such Affidavits not filed and served by 7 July 2015 cannot be relied upon without leave from a judge of the Court.
3. Defendant and Interested party Ya Qing Shi to pay Plaintiff’s costs of the Motions.

Catchwords: PROCEDURE – application by Defendant and Interested Party to extend time to file and serve affidavits – prior guillotine order not complied with – no active opposition to extension of time by Plaintiff – adequate explanation for non-compliance – no prejudice to Plaintiff – significant formal defects in affidavits now sought to be filed – time extended with further guillotine order
Category:Procedural and other rulings
Parties: Commissioner of the Australian Federal Police (Plaintiff)
Qiong Fu (Defendant)
Ya Qing Shi – Interested Party
Representation:

Counsel:
L Booth (Plaintiff)
G Jones (Defendant)
J Lee (Ya Qing Shi – Interested Party)

Solicitors:
Australian Federal Police (Proceeds of
Crime Litigation)
AKN & Associates (Defendant)
Ren Zhou Lawyers (Ya Qing Shi – interested party)
File Number(s):2013/272463

Judgment

  1. I have two Motions before me in similar terms seeking leave by the Defendant and by an interested party to be permitted to rely on affidavits which were served outside the time limited by the registrar on 24 March and which included a guillotine order. It was by virtue of the guillotine order that it was necessary for these Motions to be filed. The Motions are not actively opposed by the Plaintiff.

  2. The Plaintiff in correspondence has identified a number of matters going to form of the affidavits now sought to be filed beyond the time appointed by the registrar. Although they are matters of form they are significant matters of form, in most cases concerning the translation of affidavits and the proper form of attesting by the interpreter and the witnesses to the affidavits.    

  3. The reasons that the affidavits were filed and/or served late have been adequately explained. One of the deponents was a forensic accountant. That affidavit was attempted to be filed on the last day required but the registry had closed by the time the affidavit was sought to be filed. There were difficulties complying in relation to some other deponents who live in the People's Republic of China at a location some distance away from the nearest Australian Consulate office.

  4. The Notice of Motion to which all of these affidavits are directed has not yet been given a date for hearing. I am informed that it is unlikely to be listed before either the end of this year or early next year.

  5. The formal defects pointed out by the AFP in its correspondence mean practically that the affidavits which are now sought to be filed and served late need to be re-sworn in the correct fashion. The result is that the Notices of Motion have this morning been amended without opposition from the Plaintiff in effect to enable that to happen.

  6. I consider that time should be extended for the filing and service of all of these affidavits to 7 July. I consider it is also appropriate to put in place again a guillotine order in respect of all of these affidavits. The Registrar saw fit to do that on 24 March by repeated failures previously of the Defendant and the interested party to have its evidence served in accordance with directions.

  7. I am informed that the affidavits which will now be re-sworn, filed and served will not differ in substance from the affidavits already made available to the Plaintiff. In those circumstances the Plaintiff does not suffer any prejudice by the delay between now and 7 July in having those affidavits correctly sworn, filed and served.

  8. Accordingly I make these orders:

1. I extend time to 7 July 2015 for the filing and serving by the Defendant and the Interested Party of affidavits containing identical evidence to the following affidavits: Michael Albert Mundt sworn 25 May 2015; Jing Gao Fu affirmed 14 May 2015; Ya Chun Shi affirmed 15 May 2015, Qiong Fu affirmed 28 April 2014, Qiong Fu affirmed 12 May 2015 and Ya Qing Shi affirmed 11 May 2015; but corrected to comply with the Rules as to translation and execution.

2. Any such Affidavits not filed and served by 7 July 2015 cannot be relied upon without leave from a judge of the Court.

3. Defendant and Interested party Ya Qing Shi to pay Plaintiff’s costs of the Motions.

  1. I stand the matter over to the Registrar's list at 9am on 9 July for further directions.

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Decision last updated: 03 June 2015

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