Commissioner of the Australian Federal Police v P
[2018] WASC 314
•18 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -v- P [2018] WASC 314
CORAM: SMITH J
HEARD: 25 SEPTEMBER 2018
DELIVERED : 18 OCTOBER 2018
FILE NO/S: CIV 1350 of 2017
BETWEEN: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant
AND
P
First Respondent
N
Second Respondent
Catchwords:
Proceeds of Crime Act 2002 (Cth) - Whether power of the court to make examination orders enforcing a failure to attend an examination and requiring persons to attend an examination pursuant to s 39(1) - Power to make ancillary orders following a restraining order - Anthony Horden principle considered - Orders sought beyond power of court to make
Legislation:
Acts Interpretation Act 1901 (Cth), s 28A, s 29
Criminal Code 1995 (Cth), s 135.1
Proceeds of Crime Act 1987 (Cth), s 48(1)
Proceeds of Crime Act 2002 (Cth), s 5(ba), s 5(e), s 6, s 17(2)(a), s 20A, s 24, s 24(1), s 24(2)(ca), s 38, s 39, s 39(1), s 39(1)(ca), s 179B, s 179E, s 180, s 183, s 185, s 186, s 187, s 188, s 189, s 190, s 191, s 192, s 193, s 194, s 195
Result:
Custody and control orders made
Application for orders dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr C P Shanahan SC |
| First Respondent | : | Mr S Vandongen SC |
| Second Respondent | : | Mr S Vandongen SC |
Solicitors:
| Applicant | : | Australian Federal Police - Proceeds of Crime Litigation |
| First Respondent | : | Hager Grubb & Partners Lawyers |
| Second Respondent | : | Hager Grubb & Partners Lawyers |
Case(s) referred to in decision(s):
Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1
Commonwealth Director of Public Prosecutions v Bowerman [2006] NSWSC 1309; (2006) 67 NSWLR 695
Dainford Ltd v Smith [1985] HCA 23; (1985) 155 CLR 342
Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672
Minister for Immigration and Citizenship v Szkti [2009] HCA 30; (2009) 238 CLR 489
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566
Woodcroft v Director of Public Prosecutions [2000] NSWCA 128; (2000) 174 ALR 60
SMITH J:
The application for orders sought by the Commissioner of the Australian Federal Police following an unexplained wealth restraining order
On 8 March 2017, Banks‑Smith J made:
(a)unexplained wealth restraining orders against the first and second respondents, pursuant to s 20A of the Proceeds of Crime Act 2002 (Cth) (the 2002 Act) (orders 1 to 6);
(b)custody and control orders of specified property, pursuant to s 38 of the 2002 Act (order 9);
(c)an order, pursuant to s 39(1)(ca), directing the first and second respondents to give a Federal agent a sworn statement within a specified period setting out his or her interests in property, and his or her liabilities for the period from 1 January 2010 to 8 March 2017 (order 11);
(d)a preliminary unexplained wealth order, pursuant to s 179B of the 2002 Act, against the first and second respondents requiring the first and second respondents to appear before the court, on a date to be fixed, for the purpose of enabling the court to decide whether or not to make an unexplained wealth order against the first and second respondents pursuant to s 179E of the 2002 Act (order 12); and
(e)examination orders, pursuant to s 180 of the 2002 Act, against a number of persons including the first and second respondents (order 13).
In a chamber summons filed on 27 July 2018, the Commissioner of the Australian Federal Police (the applicant) applies for:
(a)custody and control orders, pursuant to s 38 of the 2002 Act, in respect of specified property listed in sch A, B, C and D of the chamber summons; and
(b)ancillary orders pursuant to s 39(1) of the 2002 Act.
The custody and control orders sought in this application, which relate to the property listed in sch A and B of the chamber summons, are not opposed by the first and second respondents. The applicant also seeks a custody and control order in relation to property listed in sch C and D of the chamber summons. At the time of the hearing of this matter, the applicant reserved his position to press these orders. In these circumstances, in determining this application, it is not necessary to deal with any of the orders sought which relate to the property described in sch C and D.
The remaining orders sought in the chamber summons (proposed orders 1 to 3) are as follows:
1.Each of the Respondents remedy their on-going failure to attend an examination under Part 3-1 of the Proceeds of Crime Act 2002 (Cth) (the Act), in breach of the examination order by Banks-Smith J on 8 March 2017, by attending an examination within 56 days of the date of this order.
2.Pursuant to the examination order made by Banks-Smith J on 8 March 2017 the Commissioner apply to an approved examiner to give a further examination notice for the examination of each Respondent in Western Australia under Part 3-1 of the Act returnable within 36 days of the date of this order.
3.In the event that either or both of the Respondents fail to attend an examination under Part 3-1 of the Act within 56 days of the date of this order the matter be listed for a directions hearing for orders programming the matter for a final hearing of the Commissioner's application for unexplained wealth orders against the Respondents under s 179E of the Act.
Proposed orders 1 to 3 are orders which the applicant seeks to remedy what the applicant claims is the failure of the first and second respondents to attend a compulsory examination.
Factual background - examination notices
The relevant part of the examination order made by Banks‑Smith J on 8 March 2017 was in the following terms:
Pursuant to s 180 of the Act, the following persons are to be examined about the affairs of the First and/or the Second Respondent:
a.the First Respondent (P);
b.the Second Respondent (N);
…
The parties are in dispute as to whether two examination notices issued (subsequent to the examination order made by Banks‑Smith J) to the first and second respondents by an approved examiner have been lawfully served.
Pursuant to s 183 of the 2002 Act, an approved examiner issued examination notices to the first and second respondents requiring each to attend an examination in Perth.[1] It is common ground that at the time the examination notices issued, the first and second respondents lived overseas in Vietnam.
[1] The examination notices directed to the first and second respondents were issued on 9 February 2018 and reissued on 17 April 2018.
The examination notices were sent to the first and second respondents' solicitors in Perth who entered appearances on behalf of the respondent in the proceedings before Banks‑Smith J. The examination notice to the first respondent required the first respondent to attend an examination at 10.00 am on Wednesday, 9 May 2018 at a place in Perth.[2] The examination notice to the second respondent required the second respondent to attend an examination at 10.00 am on Monday, 7 May 2018 at a place in Perth.[3]
[2] Affidavit of Simone Demetra Fishbourne sworn on 27 July 2018, Annexure SDF‑10 (Fishbourne affidavit).
[3] Fishbourne affidavit, Annexure SDF‑10.
An approved examiner is vested with the power to direct that an examinee be examined by video‑link.[4] On instructions from the first and second respondents, their solicitors wrote to the approved examiner on 30 April 2018 requesting an examination by video‑link from Vietnam.[5]
[4] 2002 Act s 190.
[5] Fishbourne affidavit, Annexure SDF‑14.
On 3 May 2018, the approved examiner declined to make a direction that the examinations be conducted by video‑link.
On 7 May 2018:
(a)the second respondent did not attend at the time and place specified in the examination notice; and
(b)the solicitors acting for the second respondent made a written submission to the approved examiner requesting to adjourn the examination of the second respondent, which was denied.
After the date scheduled for examination of the second respondent, an email was sent on 8 May 2018 from the first and second respondents' solicitors to Simone Demetra Fishbourne, a solicitor employed by the Australian Federal Police (who has day‑to‑day conduct of this matter on behalf of the applicant) which asserted that the respondents had not been served with an examination notice.[6]
[6] Fishbourne affidavit, Annexure SDF‑23.
On 10 May 2018, the first respondent did not attend at the time and place specified in the examination notice. At a hearing before the approved examiner, counsel appeared on behalf of the first respondent, confirmed he represented the first respondent and made a submission that authorised service under the relevant legislation had not taken place, such that the first and second respondents did not have any lawful obligation to comply with the examination notices.
On 14 June 2018, following an application by the applicant, an approved examiner issued fresh examination notices for the first and second respondents to attend examinations. The second examinations were scheduled to take place in Perth for the first respondent at 10.00 am on 9, 10 and 11 July 2018 and the second respondent at 10.00 am on 19 and 20 July 2018. Each of the examination notices were sent by post to the last known addresses of the respondents in Ho Chi Minh City, Vietnam.
On 6 July 2018, a letter was sent from the first and second respondents' solicitors to the approved examiner in which a submission was put that lawful service of the second examination notices may not been effected.[7] The grounds upon which the submission was made was that sending copies of the notices, by either post or email to the examinees at an address in Vietnam may not constitute lawful service under the 2002 Act (or at all), because:
[7] Fishbourne affidavit, Annexure SDF‑32.
(a)Australia is a member of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (Hague Convention);
(b)the notices are, self‑evidently, either judicial or extrajudicial in nature;
(c)The Hague Convention relevantly provides, inter alia:
Article 1
The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extra judicial document for service abroad.
Article 10
Provided the State of destination does not object, the present Convention shall not interfere with -
a)the freedom to send judicial documents, by postal channels, directly to persons abroad,
b)the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
c)the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.
Article 17
Extrajudicial documents emanating from authorities and judicial officers of a Contracting State may be transmitted for the purpose of service in another Contracting State by the methods and under the provisions of the present Convention;
(d)The Hague Convention, in accordance with its Article 28, entered into force for Vietnam on 1 October 2016 and Declaration 4 of Vietnam relevantly states (in respect of Article 10 of the Hague Convention):
Declarations
4.The Socialist Republic of Viet Nam does not oppose to the service of documents through postal channels mentioned in paragraph a of Article 10 of the Convention if the documents forwarded via postal channels are sent via registered mail with acknowledgement of receipt. (Emphasis added)
(e)In respect of the notices, there did not appear to be requisite compliance with Declaration 4 of Vietnam, by reason that the notices were apparently neither sent by registered mail, nor acknowledged as received by the examinees in Vietnam.
The examinations did not occur at the time and place as specified in the second examination notices.
Ancillary orders sought pursuant to s 39(1) of the 2002 Act
Proposed orders 1 to 3 of the applicant's chamber summons seek to address what the applicant claims is a failure of the first and second respondents to attend a compulsory examination, despite the examination orders made by Banks‑Smith J, and two separate opportunities the first and second respondents have been afforded to do so by service of the first and second examination notices.
The applicant claims that the power to make proposed orders 1 to 3 is conferred by the power to make ancillary orders, following a restraining order, pursuant to s 39(1) of the 2002 Act.
Legislative scheme
The power conferred on the court by s 180 of the 2002 Act to make an examination order is discretionary, and is subject only to the precondition that the court must first make a restraining order.
Section 180 of the 2002 Act provides as follows:
180 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.
It is a principal object of the 2002 Act (among others) to deprive persons of unexplained wealth amounts that the person cannot satisfy a court were not derived or realised, or directly or indirectly, from certain offences.[8] It is also a principal object of the 2002 Act to enable law enforcement authorities to effectively trace proceeds, instruments, benefits, literary proceeds and unexplained wealth amounts.[9]
[8] 2002 Act s 5(ba).
[9] 2002 Act s 5(e).
Part 1‑3 of the 2002 Act outlines the provisions of the 2002 Act and the scheme and divides the 2002 Act into six chapters. The principal part of the 2002 Act is to establish a scheme to confiscate the proceeds of crime by setting out in ch 2 the processes by which confiscation can occur and in ch 3 the ways in which Commonwealth law enforcement agencies can obtain information relevant to these processes.[10]
[10] 2002 Act s 6.
The power to make a restraining order prohibiting disposal of or dealing with property is contained in pt 2 of ch 2 of the 2002 Act.
In this matter, an unexplained wealth restraining order was made by Banks‑Smith J pursuant to s 20A of the 2002 Act and an examination order pursuant to s 180. The power to make an examination order is contained in div 1 of pt 3‑1 of the 2002 Act.
After an examination order is made by the court, on application by the responsible authority (in this matter, the applicant) an approved examiner is required by s 183 to 'give' a person who is the subject of an examination order a written notice for the examination of the person.[11] Section 185 specifies the content of an examination notice.
[11] 2002 Act s 183.
Section 183 of the 2002 Act provides as follows:
183Examination notices
(1)An approved examiner may, on application by the responsible authority, give to a person who is the subject of an examination order a written notice (an examination notice) for the examination of the person.
(2)However, the approved examiner must not give the examination notice if:
(a)an application has been made under section 42 for the restraining order to which the notice relates to be revoked; and
(b)the court to which the application is made orders that examinations are not to proceed.
(3)The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) does not prevent the approved examiner giving the examination notice.
Approved examiners
(4)An approved examiner is a person who holds an appointment under this section.
(5)The Minister may appoint as an approved examiner:
(a)a person who holds an office, or is included in a class of people, specified in the regulations; or
(b)a person who:
(i)is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory; and
(ii)has been so enrolled for at least 5 years; and
(iii)has indicated to the Minister that the person is willing to be appointed.
(6)An approved examiner may resign his or her appointment by giving the Minister a written resignation. The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
(7)The Minister may revoke an appointment of an approved examiner.
Section 185 of the 2002 Act provides as follows:
185Form and content of examination notices
(1)The examination notice:
(a)must be in the prescribed form; and
(b)must require the person to attend the examination; and
(c)must specify the time and place of the examination; and
(d)must specify such further information as the regulations require.
(2)The examination notice may require the person to produce at the examination the documents specified in the notice.
Once an examination notice is given, an examination is required to be conducted in accordance with the procedure prescribed in div 3 of pt 3-1 of ch 3 of the 2002 Act.[12]
[12] 2002 Act s 186 ‑ 194.
The power to make orders that are ancillary to a restraining order is set out in s 39 which is contained in div 5 of pt 2‑1 of the 2002 Act. Section 39(1) provides:
39Ancillary orders
(1)The court that made a restraining order, or any other court that could have made the restraining order, may make any ancillary orders that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders:
(a)an order varying the property covered by the restraining order;
(b)an order varying a condition to which the restraining order is subject;
(c)an order relating to an undertaking required under section 21;
(ca)an order directing the suspect in relation to the restraining order to give a sworn statement to a specified person, within a specified period, setting out all of his or her interests in property, and his or her liabilities;
(d)an order directing the owner or a previous owner of the property (including, if the owner or previous owner is a body corporate, a specified director of the body corporate) to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property;
(da)if the court is satisfied that there are reasonable grounds to suspect that a person (other than the owner or a previous owner) has information relevant to identifying, locating or quantifying the property‑an order directing the person to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property;
(e)if the Official Trustee is ordered under section 38 to take custody and control of property:
(i)an order regulating the manner in which the Official Trustee may exercise its powers or perform its duties under the restraining order; or
(ii)an order determining any question relating to the property, including a question relating to the liabilities of the owner or the exercise of powers or the performance of duties of the Official Trustee; or
(iii)an order directing any person to do anything necessary or convenient to enable the Official Trustee to take custody and control of the property;
(f)an order giving directions about the operation of the restraining order and any one or more of the following:
(i)a forfeiture order that covers the same property as the restraining order;
(ii)a pecuniary penalty order or a literary proceeds order that relates to the same offence as the restraining order;
(g)an order requiring a person whose property is covered by a restraining order, or who has effective control of property covered by a restraining order, to do anything necessary or convenient to bring the property within the jurisdiction.
Note 1:If there is a pecuniary penalty order that relates to the same offence as a restraining order, the court may also order the Official Trustee to pay an amount equal to the relevant pecuniary penalty out of property covered by the restraining order: see section 282.
Note 2:If there is an unexplained wealth order that relates to a restraining order under section 20A, the court may also order the Official Trustee to pay an amount equal to the unexplained wealth amount out of property covered by the restraining order: see section 282A.
In support of the application for proposed orders 1 to 3, the applicant relies upon an argument that order 13 of the orders made by Banks‑Smith J on 8 March 2017 has been breached by the first and second respondents. It is difficult to see how this argument can be made out. Order 13 does not require either respondents to attend an examination at a specific time or specified place. Nor does order 13 require that such an examination take place or be completed within a specified time.
The applicant contends the text in s 39(1) confers a very broad power to make ancillary orders. Whilst I agree that the power conferred by s 39(1) (without regard to the subparagraphs that follow) confers a broad general discretionary power to make ancillary orders, I do not agree that following the making of an examination order, s 39(1) confers a power to make proposed orders 1 to 3.
Prior to the enactment of the 2002 Act, the Proceeds of Crime Act 1987 (Cth) (the 1987 Act) was in force. By s 48(1) of the 1987 Act, a court, when it had made a restraining order or at any later time, was empowered to make any ancillary orders that the court considered appropriate and, without limiting the generality of this, the court was empowered to make any one or more of the orders that were described in the subparagraphs to s 48(1).[13]
[13] This provision is thus substantially to the same effect as s 39(1) of the 2002 Act.
In Woodcroft v Director of Public Prosecutions, Giles JA considered the scope and effect of the power to make ancillary orders in s 48(1) of the 1987 Act. His Honour observed:[14]
(a)an ancillary order (by its character) 'must be ancillary to something, here to the restraining order, in that it is incidental or supplemental to it'; and
(b)a narrow view should not be taken when considering what is incidental or supplemental when making an ancillary order pursuant to s 48(1).
[14] Woodcroft v Director of Public Prosecutions [2000] NSWCA 128; (2000) 174 ALR 60 [72] (Meagher & Beazley JJA agreeing).
The introductory text of s 39(1) of the 2002 Act provides that following a restraining order, the court may make any ancillary orders it considers appropriate and, without limiting the generality of this power, the court may make any one or more of the orders that follow in the subparagraphs to s 39(1).
In Leon Fink Holdings Pty Ltd v Australian Film Commission,[15] Mason J considered qualifying words 'without limiting the generality of the foregoing' in the context of legislation that contained one power in general terms followed by a specific power, separated by the qualifying words. The question before the court was whether there was any implied restriction upon a general power to be derived from the presence of a specific power when there was a clause designed to preserve the generality of the unqualified power according to its terms. His Honour found that the qualifying words 'without limiting the generality of the foregoing' was to the effect that the specific power did not restrict the general power. Further, that the use of these words evinced an intention that the general power should be given a construction that accords with the width of the language in which it is expressed and that this construction was not to be restricted by reference to the more specific character of that which follows.
[15] Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672.
When this reasoning is applied to the 2002 Act, it emerges from the opening text in s 39(1) that:
(a)the court is empowered to make any order that is incidental or supplementary to a restraining order; and
(b)when regard is had to the qualifying words that follow ('without limiting the generality of this') the text 'may make any ancillary orders that the court considers appropriate':
(i)constitutes a direction to the court to form the requisite opinion, that is, ancillary orders are appropriate; and
(ii)indicates that such orders are not to be restricted to the specific matters specified in the subparagraphs of s 39(1) of the 2002 Act (which follow the general power conferred by the qualifying words).
However, when this construction is applied, it does not necessarily follow that the court is empowered by the general power in s 39(1) to make the applicant's proposed orders 1 to 3.
It is a rule of statutory construction that a general power to carry out an action cannot be used when a specific power is conferred to take the relevant action in another provision of the Act. This principle of construction is the principle known as the Anthony Hordern principle.[16]
[16] Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1.
It is established that the breadth of a general power to take particular action or make a particular order conferred by the text 'without limiting the generality of any other provision' in a general provision does not displace the Anthony Hordern principle.[17]
[17] Dainford Ltd v Smith [1985] HCA 23; (1985) 155 CLR 342, 361 ‑ 362 (Brennan J). See also Minister for Immigration and Citizenship v Szkti [2009] HCA 30; (2009) 238 CLR 489 [44] (French CJ, Heydon, Crennan, Kiefel & Bell JJ).
In Leon Fink, Mason J explained the Anthony Hordern principle as follows:[18]
… It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power. In Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia Gavan Duffy CJ and Dixon J said:
'Extensive and unfettered as the authority of the Court of Conciliation and Arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when s 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing. When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.'
See also R v Wallis; Ex parte Employers Association of Wool Selling Brokers.
[18] Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672, 678.
The Anthony Hordern principle requires an analysis of whether a general power and a special power is conferred in respect of the same subject matter or whether two powers are to be construed as two special powers (and thus not to encroach on each other).
It may also be the case that a general power is conferred, which is followed by a specific power or powers which may be no more than general expressions or exemplifications of what can be done in the exercise of the general power.[19] Gummow and Hayne JJ explained this point in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom as follows:[20]
Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the 'same power', or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.
[19] Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672, 678 (Mason J).
[20] Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 [59].
Consequently, the question in this matter is whether:
(a)the power to require a person to attend an examination by an approved examiner within a specified period, being the power conferred upon an approved examiner by operation of s 183 of the 2002 Act, cannot be encroached by the power conferred by s 39(1); and
(b)the failure to attend a compulsory examination can only be enforced by charging a person with an offence under s 195 of the 2002 Act[21] which cannot be encroached by the power conferred by s 39(1).
[21] 2002 Act pt 3‑1 div 4 s 195.
The construction of s 39(1) and the scope of the power to make ancillary orders to a restraining order was considered by Hidden J in Commonwealth Director of Public Prosecutions v Bowerman.[22] In that matter, the defendant sought an order under s 39(1) for legal expenses to be paid out of funds ordered to be restrained under the 2002 Act. Prior to the application, a restraining order had been made under s 17(2)(a) of the 2002 Act after the defendant had been convicted of offences of dishonesty under s 135.1 of the Criminal Code 1995 (Cth). By s 24(1) of the 2002 Act, the court is empowered to allow reasonable living expenses, reasonable business expenses or specified debts to be met out of restrained property. However, the court may only make such an order if it is satisfied (among other things) that the expense or debt does not relate to legal costs incurred in connection with proceedings from an offence or proceedings under the Act.[23] An argument was put on behalf of the defendant that s 39 was wide enough to embrace the defendant's application. In particular it was put that s 39(1) enabled the making of any ancillary orders that the court considers appropriate. The plaintiff argued that s 24 was intended to be an exhaustive provision concerning the allowance for expenses out of restrained property and referred to the principle in Anthony Hordern. Hidden J accepted the argument put on behalf of the plaintiff and construed s 39 as a general power. His Honour found that s 24 creates a special power subject to limitations and qualifications, which limitations could not be defeated by the exercise of the general power created by s 39.
[22] Commonwealth Director of Public Prosecutions v Bowerman [2006] NSWSC 1309; (2006) 67 NSWLR 695.
[23] 2002 Act s 24(2)(ca).
Proposed orders 1 to 3, when read together, if made, would have the effect of directing the first and second respondents to attend an examination by an approved examiner within a specified period.
An order requiring a person to attend an examination within a specified period could prima facie be characterised as an ancillary order which could be regarded as an appropriate order by the court if the general power conferred by s 39(1) is not excluded by the operation of the specific power conferred on an approved examiner in s 183 when read with s 185 of the 2002 Act.[24]
[24] Sections 183 and 185 are contained in div 2 of pt 3‑1 of ch 3 of the 2002 Act.
When read with s 185, s 183 creates a special power, conferred not on the court but on an approved examiner to give notice of an examination requiring a person to attend an examination and specifying the time and place of the examination. The qualifications on this special power are that:
(a)an application for an examination notice must be made by the responsible authority; and
(b)the notice is to be given to the person who is the subject of an examination notice. To 'give' an examination notice, within the meaning of s 183, requires that the document must be served in the manner prescribed by s 28A and s 29 of the Acts Interpretation Act 1901 (Cth).
The qualifications in s 183, when read with s 185, cannot be defeated by the exercise of the general power created in s 39(1) by making proposed orders 1 to 3 which would necessarily have the effect of the court specifying the time and place of an examination which would, by the effect of the appearance of the respondents in these proceedings by solicitors and counsel, circumvent the requirement in s 183 for service.
Further, the 2002 Act does not contemplate that the general power conferred by s 39(1) would confer a power to make an order that is in effect an enforcement order. Such an order, if made, would require the respondents to attend an examination within 56 days of the date of the order which would have effect irrespective of whether examination notices specifying the time and place of an examination had been issued by an approved examiner pursuant to s 183.
The scheme provided for in respect of carrying out the process of an examination in the 2002 Act is clear. The court has no power to make an order requiring a person to attend an examination at a time and place or otherwise deal with the enforcement of a person who fails to attend an examination. If a person fails to attend an examination a person commits an offence which carries a term of imprisonment.[25]
[25] 2002 Act s 195.
The orders sought by the applicant under s 39(1) as proposed in orders 1 to 3 cannot be entertained.
As the orders sought by the applicant are beyond the power of the court to make, I do not find it necessary to determine whether either of the respondents have been lawfully served with the first and second examination notices issued by an approved examiner.
As counsel for the respondents point out in their written submissions, if an approved examiner issues an examination notice in accordance with s 183(1) and the respondents fail to attend an examination, it is open to the applicant to apply to the court for orders to program the matter for a final hearing of the applicant's application for unexplained wealth orders under s 179E of the 2002 Act.
Conclusion - orders to be made
A custody and control order will be made in relation to the property listed in sch A and B of the applicant's chamber summons filed on 27 July 2018.
In so far as the applicant seeks orders in the terms proposed in pars 1 to 3 of the chamber summons, the application should be dismissed.
I will hear the parties further as to the orders I should make, and as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
ASSOCIATE TO THE HONOURABLE JUSTICE SMITH18 OCTOBER 2018
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