SUPREME COURT OF QUEENSLAND
CITATION:
Commissioner of the Australian Federal Police v Phan (No 3) [2024] QSC 312
PARTIES:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
(applicant)
v
NGOC TANG PHAN(first respondent)
THI LE TRAN
(second respondent)
PETER THONG VAN PHAM
(third respondent)
TOMMY DUONG
(fourth respondent)
MEN EN QUACH
(fifth respondent)
CU VAN TRAN
(sixth respondent)
YILIANG CHEN
(seventh respondent)
FILE NO:
6937 of 2020
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
11 December 2024
DELIVERED AT:
Brisbane
HEARING DATE:
Determined without oral argument pursuant to orders made on 5 November 2024
JUDGE:
Davis J
ORDER:
The question of costs as between the applicant and the fifth respondent of the application is reserved.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the applicant brought proceedings under the Proceeds of Crime Act 2002 (Cth) (POCA) against various parties including the fifth respondent – where the applicant sought orders that various persons be examined – where the applicant sought to examine the fifth respondent, the fifth respondent’s mother, the fifth respondent’s daughter and the fifth respondent’s wife – where the fifth respondent conceded examination orders against him and his wife – where he opposed orders for examination being made against his mother and his daughter – where the applicant sought orders for the examination of other respondents – where on the day of the hearing of the application the applicant sought not to pursue the application against the fifth respondent’s mother – where the dispute was for examination of the fifth respondent’s daughter – where the applicant accepted that it had to identify some relevant line of inquiry – where the applicant proposed illogical and misconceived avenues of inquiry – where there were unexplained deposits to a bank account apparently controlled by the fifth respondent’s daughter – where that was held to be sufficient to justify an examination order – where the applicant proposed that the costs of the application should be reserved – where the fifth respondent proposed that the costs of the application should be costs in the cause
Proceeds of Crime Act 2002 (Cth), s 180
Commissioner of the Australian Federal Police v Phan (No 2) [2024] QSC 264, related
Hanson v Goomboorian Transport Pty Ltd (2019) 3 Qd R 375; [2019] QCA 41, cited
SOLICITORS:
The Commissioner of the Australian Federal Police Criminal Assets Litigation Section for the applicant
Morgan Mac Lawyers for the fifth respondent and Joanne QuachBackground
The applicant has brought proceedings under the Proceeds of Crime Act 2002 (Cth) (POCA) against the first respondent, Ngoc Tang Phan, and various other respondents. Ngoc Tang Phan was convicted of trafficking in dangerous drugs on a large scale. It is alleged by the applicant that he received the proceeds of that criminal activity and that the other respondents have dealt with those proceeds and are therefore within the grasp of the POCA.
Application was made for orders that the respondents and other people be examined pursuant to s 180 of the POCA.
As regards the case against the fifth respondent the applicant sought to examine:
(a)the fifth respondent;
(b)his wife, Thi Cam Yen Phan;
(c)his mother, Thi La Tran; and
(d)his daughter, Joanne Quach.
The fifth respondent did not oppose orders for his examination and the examination of Thi Cam Yen Phan. He opposed orders for the examination of Thi La Tran and Joanne Quach.
On the morning of the hearing of the application, the applicant indicated that he would not seek an order for the examination of Thi La Tran, but proceeded with the application to have Joanne Quach examined.
An order for the examination of Joanne Quach was made.[1]
The applicant says that the costs of the application as between him and the fifth respondent should be reserved.
The fifth respondent submits that the costs should be costs in the cause.
Consideration
In my view, the costs should be reserved.
Even if the fifth respondent is not successful in his defence of the principal application, there are various factors which might militate against a costs order being made against him in relation to the examination application including:
(i)while the applicant pressed for examination orders against Joanne Quach he was unable, through his counsel, to clearly articulate a line of inquiry that he wished to pursue by the examination;
(ii)Federal Agent Lancashire proposed that Joanne Quach was part of a conspiracy to defeat the creditors of her grandfather who had nominated her as a beneficiary to a life policy. That seemed illogical and misconceived;
(iii)Mr Handran KC for the applicant proposed that in reliance upon the Court of Appeal’s decision in Hanson v Goomboorian Transport Pty Ltd,[2] the entitlement to the proceeds of the life insurance policy in these circumstances was dependent upon who contributed to the premiums over the life of the policy. That submission was clearly wrong and Hanson v Goomboorian Transport Pty Ltd is not authority for any such proposition;
(iv)the application was successful only because there were some unexplained cash deposits to an account controlled by Joanne Quach;
(v)the applicant pressed for an order for the examination of Thi La Tran, only abandoning that on the morning of the application; and
(vi)on any fair view, most of the material filed on the application by the applicant concerned people and issues irrelevant to Joanne Quach.
[2](2019) 3 Qd R 375.
The impact of those and other features upon the question of costs of the application as between the applicant and fifth respondent will no doubt become clearer as the case continues.
In those circumstances it is appropriate to reserve the costs.
Order
1.I order that the question of costs of this application as between the applicant and the fifth respondent is reserved.
- AGLC
- Commissioner of the Australian Federal Police v Phan (No 3) [2024] QSC 312
- Case
- [2024] QSC 312
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the costs of the application should be reserved or ordered as costs in the cause. The fifth respondent argued that the costs should be costs in the cause, while the Commissioner proposed reserving the costs. The court considered various factors, including the Commissioner’s inability to articulate a clear line of inquiry, the illogical and misconceived proposals made by the Commissioner’s counsel, and the relevance of the material filed on the application. The court concluded that the costs should be reserved due to the unclear and misconceived nature of the application and the potential for factors that might mitigate against a costs order against the fifth respondent.
In its reasoning, the court found that the costs should be reserved because the Commissioner’s application lacked a clear line of inquiry and contained illogical proposals. The unexplained cash deposits to the respondent’s daughter’s account were the only basis for the examination order, and much of the material filed by the Commissioner was irrelevant. The court also noted that the Commissioner abandoned the application for examination of the respondent’s wife on the morning of the hearing. Therefore, the court considered it appropriate to reserve the costs pending further developments in the case.
The court ordered that the question of costs of the application between the Commissioner and the fifth respondent was reserved. This order ensures that the issue of costs remains open until the court can assess the impact of various factors on the costs of the application as the case progresses.
Orders
Orders of the court
The question of costs as between the applicant and the fifth respondent of the application is reserved.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The fifth respondent submits that the costs should be costs in the cause.Consideration In my view, the costs should be reserved. Even if the fifth respondent is not successful in his defence of the principal application, there are various factors which might militate against a costs order being made against him in relation to the examination application including:(i)while the applicant pressed for examination orders against Joanne Quach he was unable, through his counsel, to clearly articulate a line of inquiry that he wished to pursue by the examination;(ii)Federal Agent Lancashire proposed that Joanne Quach was part of a conspiracy to defeat the creditors of her grandfather who had nominated her as a beneficiary to a life policy. That seemed illogical and misconceived;(iii)Mr Handran KC for the applicant proposed that in reliance upon the Court of Appeal’s decision in Hanson v Goomboorian Transport Pty Ltd,[2] the entitlement to the proceeds of the life insurance policy in these circumstances was dependent upon who contributed to the premiums over the life of the policy. That submission was clearly wrong and Hanson v Goomboorian Transport Pty Ltd is not authority for any such proposition;(iv)the application was successful only because there were some unexplained cash deposits to an account controlled by Joanne Quach;(v)the applicant pressed for an order for the examination of Thi La Tran, only abandoning that on the morning of the application; and(vi)on any fair view, most of the material filed on the application by the applicant concerned people and issues irrelevant to Joanne Quach.[2](2019) 3 Qd R 375. The impact of those and other features upon the question of costs of the application as between the applicant and fifth respondent will no doubt become clearer as the case continues. In those circumstances it is appropriate to reserve the costs.Order1.I order that the question of costs of this application as between the applicant and the fifth respondent is reserved.