Commissioner of the Australian Federal Police v Ng

[2019] WASC 222

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:

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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)

7. 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.

8. 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).

9. 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.

10. 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