Commissioner of the Australian Federal Police v Lee

[2017] NSWSC 1205

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of the Australian Federal Police v Lee [2017] NSWSC 1205

Hearing dates:

28 August 2017

Date of orders:

28 August 2017

Decision date:

28 August 2017

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) I make orders in accordance with prayers 1 to 4 of the notice of motion filed 22 August 2017;

 (2) The costs of today and any costs thrown away by reason of the adjournment are the parties’ costs in the cause.

Catchwords:

CIVIL PROCEDURE – Adjournment – Relevant factors – Adjournment granted

Legislation Cited:

Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth)
Civil Procedure Act 2005 (NSW)
Proceeds of Crime Act 2002 (Cth)

Cases Cited:

City of Sydney Council v Satara [2007] NSWCA 148
Commissioner of the Australian Federal Police; In the matter of s 9 of the Proceeds of Crime Act 2002 (Cth) and the funds standing to the credit of Commonwealth Bank of Australia accounts held in the name of Sanko Lordianto and Indriana Koernia [2017] NSWSC 551

Commissioner of the Australian Federal Police v Kalimuthu (No 3) [2017] WASC 108
Watson v Watson (1968) 70 SR (NSW) 203

Category:

Procedural and other rulings

Parties:

Commission of the Australian Federal Police (Plaintiff)
Fatt Wai Lee (Defendant)

Representation:

Counsel:

 

L. Livingston (Plaintiff)
MacCallum (Defendant)

  Solicitors:

File Number(s):

2015/136406

EX TEMPORE Judgment (REVISED)

1. I am dealing with a motion which seeks an adjournment of what is referred to as an exclusion application under the Proceeds of Crime Act 2002 (Cth).

2. This Court in 2015 made a restraining order and the applicants are seeking to have property excluded from the restraining order. Effectively, I think it is virtually the whole of the property the subject of the orders which relates to sums of money in various bank accounts said to involve a breach of s 142 Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth).

3. The matter was set down for hearing on 10 April 2017. That was before Allanson J of the Supreme Court of Western Australia delivered his judgment in the matter of the Commissioner of the Australian Federal Police v Kalimuthu (No 3) [2017] WASC 108.

4. His Honour interpreted a key provision, being s 330(4)(a) Proceeds of Crime Act in a manner which was favourable to the exclusion applicant in that case.

5. The current exclusion applicants seek to invoke that decision in the current case. The decision of Allanson J has been appealed by the Commissioner and the Court of Appeal of the Supreme Court of Western Australia has sought to have that appeal listed expeditiously because it recognises that the point is one of some importance and practical significance in litigation of this type.

6. However, the court was frustrated in that desire by the unavailability of counsel for the respondent on any of the days the court made available for an early hearing date for the appeal. On the evidence led before me, the earliest date now likely to be available is in either January or February 2018.

7. Mr Livingston of Counsel, who appears for the Commissioner, submits that the court is likely to give the matter expedition in decision and given its understanding of the importance of the point raised, both parties agree that the matter should be adjourned and that no new date should be fixed until the decision of the West Australian court is available.

8. In that regard, Ms Danijela Luzaic, the solicitor for the applicants, in her affidavit sworn 22 August 2017 sets out at para 12 the practical prejudice that her clients may suffer if the matter proceeds prior to a determination of the Western Australian court. This is predicated on the basis that the determination here is likely to be appealed by the losing party to preserve their position pending the outcome in Western Australia. I assume that it is implicit that once this aspect of the law is clarified it may facilitate the resolution of the application without need for a further hearing.

9. As the issue has been explained to me by Mr Livingston, it seems that if the Commissioner’s preferred construction is adopted by the Western Australian court, that decision will bind other Australian courts unless and until overturned by the High Court of Australia. The effect of a decision favourable to the Commissioner will be that the exclusion application may be untenable because the holder of a bank account the subject of the restraining order will not be able to bring himself or herself within the operation of s 330.

10. The amount involved in this case is in excess of $1 million and the exclusion applicants are: (a) content that those funds should remain restrained until the decision in Western Australia; and (b) anxious not to incur the substantial expense and cost of attending the hearing from Malaysia to propound their application lest that expenditure constitutes the throwing of good money after bad.

11. Generally speaking, when parties to the civil litigation are agreed that the matter should be adjourned the Court will be disposed to consider the application benignly. However, the consent of the parties falls a long short of being the sole, or even the central, consideration that the court brings to bear in making that decision having regard to the provisions of ss 56 to 60 Civil Procedure Act 2005 (NSW).

12. A number of competing factors are involved, as discussed by McCallum J in Commissioner of the Australian Federal Police; In the matter of s 9 of the Proceeds of Crime Act 2002 (Cth) and the funds standing to the credit of Commonwealth Bank of Australia accounts held in the name of Sanko Lordianto and Indriana Koernia [2017] NSWSC 551.In that decision her Honour referred to the importance of the principle that the jurisdiction of the court, once properly engaged, should be exercised. In particular her Honour referred to City of Sydney Council v Satara [2007] NSWCA 148 at [31] where the guiding principle was expressed by reference to Watson v Watson (1968) 70 SR (NSW) 203:

“A case which has been specially fixed for hearing at a date some months in the future should proceed to hearing unless to refuse an adjournment would prejudice a party to the point of denying justice”.

The Satara decision sits well with the Civil Procedure Act.

13. Her Honour also recognised that any discretionary issue needs to be determined according to the circumstances of the case at hand. The application before her Honour was made on the basis of the Kalimuthu decision, although the appeal had not then been lodged. Her Honour pointed out at [20](a) that it did not follow “that the jurisprudence must necessarily grind to a halt, to the detriment of individual applicants.”

14. This case is somewhat different inasmuch as the exclusion applicants are seeking to avoid the detriment to which I have previously referred. Moreover, that application was made to her Honour just some days before the hearing date here.

15. The applicants for the adjournment have moved promptly. The hearing date is yet two months away. An important consideration in these matters, however, is the inconvenience to the court in terms of the displacement of limited judicial resources when the hearing date is adjourned and also the inconvenience to other litigants who have been pushed out of the list by a special fixture for five days. Those considerations remain important in this case.

16. If the central question be whether the prejudice to be suffered by both parties, but in particular the exclusion applicants, is to “the point of denying justice”, I think justice must be viewed in essentially practical terms.

17. It seems inevitable that there will be an appeal by one side or the other even if just to protect their position if the matter is heard and determined before Kalimuthu is decided. Another option is the matter could be heard but the trial judge could, in his or her discretion, decide to reserve until Kalimuthu is decided. That may be unsatisfactory because it may require bringing parties back for further submissions once it is decided. Of course, it is just possible that the clarification of the law that the awaited decision provides will require further evidence to be called. In a practical sense, it could be that the costs and expenses of running the hearing in October are wasted.

18. I am also conscious of the fact that there are five other reserved decisions which Kalimuthu affects and that in some of those cases adjournments were refused.

19. This is an unusual situation where both parties accept the case should be adjourned. Given what I regard as the practical injustice, including the real risk of significant waste of costs and expenses, involved in forcing the parties on, I am of the view that I should accede to the application.

20. Every judge, I suppose, has some experience of a case having been forced on in the face of an adjournment application needing to be re-agitated when an anticipated decision is handed down. That experience, of course can indicate that it is often better to permit some delay rather than to insist upon expedition when such an outcome is on the cards.

21. I make orders in accordance with prayers 1 to 4 in the notice of motion filed on 22 August 2017 and I order that the costs of today and any costs thrown away by reason of the adjournment are the parties’ costs in the cause.

**********

Decision last updated: 07 September 2017