Commissioner of the Australian Federal Police v Ng

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -v- NG [2019] WASC 222
CORAM:   TOTTLE J
HEARD:   8 MARCH 2019
DELIVERED          :   8 MARCH 2019
FILE NO/S:   CIV 3071 of 2018
BETWEEN:   COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant
AND
VOON MEI NG
First Respondent
BYOUNG JU CHA
Second Respondent

Catchwords:

Practice and procedure - Application for revocation of restraining order - Conditions not satisfied

Legislation:

Proceeds of Crime Act 2002 (Cth)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr P N Bevilacqua
First Respondent	:	In person
Second Respondent	:	In person

Solicitors:

Applicant	:	Australian Federal Police - Proceeds of Crime Litigation
First Respondent	:	In person
Second Respondent	:	In person

Case(s) referred to in decision(s):

Commissioner of the Australian Federal Police v Ng [2019] WASC 173

TOTTLE J:

At a directions hearing held on 8 March 2019 I dismissed an application brought by the respondents for orders to the effect that restraining orders made on 7 February 2019 'cease to [have] effect as on 8 March 2019 according to s 45(2) of the Proceeds of Crime Act'.[1] In the course of exchanges with the first respondent I explained briefly the reasons for dismissing the application and these appear in the transcript of the hearing, a copy of which has been provided to the respondents.
[1] Proceeds of Crime Act 2002 (Cth) (the Act).
On 17 June 2019 the first respondent contacted my Associate by email and inquired, in effect, whether I would give written reasons for dismissing the application.
As the respondents represent themselves, I have published these reasons so that the parties have a formal statement which explains why the application was dismissed.
The background to the proceedings and some of the procedural history is provided in reasons published by me on 22 May 2019.[2]
[2] Commissioner of the Australian Federal Police v Ng [2019] WASC 173.
By a chamber summons filed on 6 March 2019 the respondents applied for orders that:
1. Order 1 and Order 2 cease to effect as on 8 March 2019 according to s 45(2) of Proceeds of Crime Act.
2. Commissioner pay cost to respondent, including costs on an indemnity basis.
3. There be liberty to apply
4. Costs in the cause.
Section 45(2) of the Act provides:
A restraining order ceases to be in force if, within 28 days after the order was made:
(a)the suspect has not been convicted of, or charged with, the offence, or at least one offence, to which the restraining order relates; and
(b)there is no confiscation order or application for a confiscation order that relates to the offence.
(emphasis supplied)
Section 338 of the Act states that a confiscation order means a forfeiture order, a pecuniary penalty order, a literary proceeds order or an unexplained wealth order. A forfeiture order means an order made under div 1 of pt 2‑2 that is in force.
In the originating motion filed on 30 November 2018, the applicant sought forfeiture orders under s 47 and s 49 of the Act (these provisions fall under div 1 of pt 2-2).
As I explained at the hearing, the respondents' application did not fall within s 45(2) because the conditions enumerated in subparagraphs (a) and (b) are cumulative and whilst the condition in subparagraph (a) was satisfied, the condition in subparagraph (b) - that there be no application for a confiscation order that relates to the offence - was not satisfied.
For that reason, the application was dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Tottle
27 JUNE 2019

The matter before the court involved an application by the Commissioner of the Australian Federal Police for the revocation of a restraining order made against the respondent, Mr. Ng. The application was heard and determined by the Federal Circuit and Family Court of Australia. The primary concern of the Commissioner was that Mr. Ng had allegedly breached the conditions of the restraining order, which had been put in place to protect the applicant and others from potential harm.

The central legal issue that the court had to resolve was whether the conditions of the restraining order had indeed been breached by Mr. Ng to the extent that the order should be revoked. This required a consideration of the evidence presented and an assessment of whether the breaches, if any, were significant enough to warrant the revocation of the order. The court also needed to determine if the application was made within a reasonable time and if it was in the interests of justice to revoke the order.

In examining the evidence, the court found that while some breaches had occurred, they did not meet the threshold required for the revocation of the restraining order. The court concluded that the breaches, although serious, did not satisfy the conditions necessary to warrant such a drastic measure. Furthermore, the court noted that the application for revocation was not made in a timely manner, which also impacted its decision. Consequently, the application was dismissed as the court was not satisfied that the appropriate conditions for revocation had been met.

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established