Commissioner of the Australian Federal Police v Ruzehaji (No 1) - [2014] SADC 60

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v RUZEHAJI & ANOR (No 1)
[2014] SADC 60
Decision of His Honour Chief Judge Muecke
24 April 2014
PROCEDURE
Restraining Order (including an examination order in respect of the first defendant) made ex parte on 28 November 2012 under the Proceeds of Crime Act 2002 (Cth) against defendants. Order varied from time to time. Application by plaintiff on 3 September 2013 for examination orders in respect of other people. Application by first defendant on 19 September 2013 to set aside the examination order in respect of him and to stay proceedings until criminal proceedings against him are determined. Appeal to Full Court of Supreme Court on 14 October 2013 against the orders of 28 November 2012. Applications by plaintiff for the publication of reasons for those orders, and by defendants to adjourn the hearing of the September applications until appeal heard and determined.
Held:
Application to publish reasons granted.
Application to adjourn the September applications refused.
Proceeds of Crime Act 2002 (Cth) s180 , referred to.
Lee v New South Wales Crime Commission [2013] HCA 39, considered.

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v RUZEHAJI & ANOR (No 1)
[2014] SADC 60

On 28 November 2012 I made restraining orders in respect of property said to belong to, or to be under the control of, the first defendant (“Mr Ruzehaji”) and the second defendant (“Ruzehaji Enterprises”) (“the restraining orders”).. These orders were sought by the plaintiff Commissioner of the Australian Federal Police (“the Commissioner”). I also made other orders
My orders included giving liberty to all parties to apply, and fixing a return date of Wednesday 19 December 2012.
The matter came back on before me at 9.39am on Wednesday 19 December 2012. (The transcript erroneously records the date as Thursday 19 December 2013.) The same lawyer from the Australian Government Solicitor (AGS) as had attended at the ex parte hearing on 28 November 2012 appeared for the Commissioner. Mr Michael Dadds, solicitor, appeared for both Mr Ruzehaji and Ruzehaji Enterprises.
Whilst the transcript of that hearing speaks for itself, I was informed that the parties had agreed some variations to the orders I made the previous month, and that they were still discussing other possible variations which they contemplated I might deal with administratively in the few days to follow. I was told that they were discussing some bank accounts and whether funds could be released to pay various home loans to avoid default. I was also told that an order by consent was requested as to paragraph 6 of my orders. That order dealt with when a statement on oath of assets and liabilities was to be provided. I was told that it was agreed that that would be by 31 January 2013, to give it a precise date (rather than “within” a number of days), and to identify the person to whom the sworn statement was to be given (that was Federal Agent Shaun Milligan). Order 6 was one of two orders I made ex parte which were not initially sought by the Commissioner to be so made (“the statement on oath order”).
I was also asked to fix a new return date of not before 5 April 2013. I was asked to do that because that would “allow sufficient time to pass for the examination to occur”. I assumed that reference to be a reference to the examination of Mr Ruzehaji referred to in paragraph 7 of the orders I made on 28 November 2013. I offered Thursday 11 April 2013 and that suited both parties. Order 7 was the other of the two orders I made ex parte which were not initially sought by the Commissioner to be so made (“the examination order”).
I signed the consent minutes which varied 0rder 6 of my orders of 28 November 2012 and fixed the next directions hearing for Thursday 11 April 2013 at 9am. I ordered that costs be in the cause and gave liberty to apply.
I was not asked by Mr Dadds to revoke any of the orders I had made on 28 November 2012 or to vary any of those orders other than in the manner that I did vary them, by consent.
On 18 March 2013 a Master of this court made a number of orders by Electronic Non-Contentious Application and Minutes filed on behalf of the Commissioner. Those orders further varied the orders I made on 28 November 2012. Those orders varied my orders, inter alia, to allow for Mr Ruzehaji’s reasonable living expenses; to allow the Official Trustee to take custody and control of certain property; to provide for the avoidance of doubt as to the fact that a lease existing at the time is not affected by my restraining order; for Mr Ruzehaji to provide the Official Trustee with certain documents; to allow Mr Ruzehaji to enter into a new lease of certain investment properties; and to make provision in respect of a number of bank accounts for funds to be applied for certain purposes. The order gave liberty to the parties, the Official Trustee, Westpac Banking Corporation Limited and any tenants of the controlled investment properties to apply for directions or variation of the orders made on 18 March 2013.
On 11 April 2013, when the matter came back on before me on its return date, I made an order, by consent, that five motor vehicles the subject of one of my restraining orders made on 28 November 2012 be released from that order. At the hearing on 11 April 2013 the Commissioner appeared by counsel and Mr Ruzehaji and Ruzehaji Enterprises appeared by Mr Michael Dadds. That order is FDN 12 in this action.
The next document filed in this court in this action is FDN 13. It was filed on 3 September 2013, nearly four months after FDN 12. It is an affidavit of Jamie Paul Johnson, a Federal Agent who is a member of the Australian Federal Police (AFP) stationed at Perth. That affidavit was one of two affidavits in support of an interlocutory application filed by the Commissioner for examination orders pursuant to s 180 of the Proceeds of Crime Act 2002(Cth) (“the Act”). The other affidavit is of Edward Greaves the then legal case officer within the AFP who then had carriage of this matter on behalf of the Commissioner. This was also filed on 3 September 2013.
It appears from Mr Johnson’s affidavit that Mr Ruzehaji made a statement dated 5 February 2013 pursuant to s39 of the Act. Presumably that was a statement sworn on oath setting out all assets in property, and liabilities, of himself and Ruzehaji Enterprises pursuant to the statement on oath order I made as part of the orders I made on 28 November 2012, as varied on 19 December 2012. Further, it appears that an examination of Mr Ruzehaji was conducted pursuant to s180 of the Act before an approved examiner and AAT senior member. That apparently occurred on 25 March 2013 and a transcript of that examination was taken. This presumably occurred pursuant to the examination order I made on 28 November 2012. It later appeared that Mr Ruzehaji was represented at that examination by Mr David Edwardson QC and Mr Dadds.
Mr Johnson swears that the 5 February 2013 s39 statement and the transcript of 25 March 2013 record evidence that Mr Ruzehaji was compelled to give, and which at least touch upon matters pertaining to pending criminal charges against him. He swears that he had been informed by Mr Greaves that the AFP had provided copies of the s39 statement and the 25 March 2013 transcript to Dadds Jandy, the solicitors for “the respondent” (which I assume to mean either Mr Ruzehaji or Ruzehaji Enterprises or more likely both, but at least Mr Ruzehaji).
Federal Agent Johnson swears that in his 5 February 2013 s39 statement and in his 25 March 2013 examination Mr Ruzehaji stated the names of people whom he said had an interest in some of the restrained property.
The Interlocutory Application filed by the Commissioner which these two affidavits supported was also filed on 3 September 2013. In it the Commissioner sought orders, pursuant to s180 of the Act, that six of these people be examined about the affairs of Mr Ruzehaji and Ruzehaji Enterprises, and in addition in the case of two of them, about their own affairs.
It appears that in correspondence between Mr Greaves and Mr Dadds regarding the Commissioner’s wish to seek to examine these persons and to further examine Mr Ruzehaji, at least in late August Mr Dadds indicated that his client Mr Ruzehaji wished “to be represented at the hearing of the proposed examinations of other parties” on the basis that he did not consent to the making of examination orders in respect of them, and would oppose such orders.
In his affidavit filed on 3 September 2013 Mr Greaves swears that Mr Ruzehaji was due to be examined, pursuant to s180 of the Act, before an approved examiner on 9 October 2013 in Adelaide. He indicated that he would be travelling to Adelaide to conduct that examination as counsel for the Commissioner. He indicated that he had made enquiries with the examiner and understood that she was able to conduct other examinations in this matter on 9 October 2013. He indicated that the Commissioner wished to have further examination orders made well prior to 9 October 2013 so that the examiner’s availability can be fully used. He indicated that he had spoken to Mr Dadds, the solicitor for Mr Ruzehaji and Ruzehaji Enterprises, and he understood that Mr Dadds was available to have an application listed for one hour before a judge of this court on certain dates, all of which were before 9 October 2013.
Judge Muscat, who was then the Short Notice List Judge, listed the Interlocutory Application for hearing before himself on 20 September 2013.
On 19 September 2013 a Notice of Change of Solicitor/Address for Service was filed in this court. By that notice Harry Patsouris indicated that he then acted for Mr Ruzehaji and that Mr Ruzehaji’s address for service was changed to the address where Patsouris and Associates practiced. It later appeared that Mr Dadds’ instructions were terminated on 9 September 2013, six days after the Commissioner’s interlocutory application of 3 September 2013 was filed.
On 19 September 2013, being the same day as Mr Patsouris gave notice he was acting for Mr Ruzehaji, interlocutory application was made on behalf of Mr Ruzehaji for certain orders or directions. The orders or directions sought were that the application be made specially returnable before Judge Muscat; that an order be made pursuant to r242 of the District Court Rules setting aside Order 7 of the orders made be me on 28 November 2012 (the examination order); that pursuant to r 226 the order setting aside Order 7 be made nunc pro tunc effective from 19 December 2012; and pursuant to r192 these proceedings otherwise be stayed pending the determination of the criminal proceedings with which Mr Ruzehaji had been charged. My Order 7 related to the examination of Mr Ruzehaji about his affairs and the affairs of Ruzehaji Enterprises, and 19 December 2012 was the date I varied the orders I made on 28 November 2012, by consent of all parties, including Mr Ruzehaji, fixing the date by which Mr Ruzehaji was to give a sworn statement setting out all interests in property, and liabilities, of himself and Ruzehaji Enterprises.
In an affidavit in support of Mr Ruzehaji’s application a law clerk in the employ of Patsouris and Associates swore an affidavit. That was sworn and filed on 19 September 2013. In that affidavit the deponent indicated that Mr Ruzehaji was arrested on 19 December 2013 and was bailed to appear in court on 1 February 2013. On 17 January 2013 both an Information and a further Information were laid against him charging him with drug offences under the State Controlled Substances Act 1984 and the Commonwealth Criminal Code Act 1995. She indicated that Mr Ruzehaji provided a statement to the AFP pursuant to s39 of the Act on 5 February 2013, and that he was examined pursuant to s180 of the Act on 25 March 2013. The statement and the examination post-dated the arrest of Mr Ruzehaji and the Informations laid against him. She indicated that she was instructed to serve Mr Ruzehaji’s application on the six persons the Commissioner sought orders to examine pursuant to s 180 of the Act.
The matter came on before Judge Muscat the next day, 20 September 2013. On that day Judge Muscat ordered that the examination of Mr Ruzehaji listed for 9 October 2013 (which he vacated although 10 October 2013 is in the orders) be stayed until full argument had been heard in respect of the two applications before him; that Mr Ruzehaji issue a notice under s78B of the Judiciary Act 1903; and that both applications be listed for hearing on 6 November 2013. His Honour made some other orders, including liberty to apply to vary his orders.
At this hearing Mr Greaves appeared as counsel for the Commissioner and Mr M Abbott QC and Dr R Gray appeared as senior counsel and counsel for Mr Ruzehaji.
On 26 September 2013 Harry Patsouris filed a Notice of Acting for Ruzehaji Enterprises. On the same date Mr Patsouris filed a notice which had been given pursuant to s 78A of the Judiciary Act 1903.
The next document filed was an affidavit of Jaye Dana Alderson. It was filed on 28 October 2013 on behalf of the Commissioner. The affidavit indicated that on 14 October 2013 the Commissioner was served with a Notice of Appeal. It was filed in the Supreme Court on the same date. By that Notice Mr Ruzehaji and Ruzehaji Enterprises appealed to the Full Court of the Supreme Court of South Australia against orders 1 to 7 of the orders I made on 28 November 2012. Some of these orders had been varied (some in significant ways by releasing some assets from them), and others had taken effect, in whole or in part.
The appellants sought an extension of time within which to appeal. One ground was that it is in the interests of justice that my orders of 28 November 2012 be revoked or set aside. The other reasons were said to be set out in an affidavit of Harry Patsouris filed in the Supreme Court in support of the extension, said to be that there was a delay in Mr Ruzehaji and Ruzehaji Enterprises receiving advice concerning their right to appeal my decision of 28 November 2012. That affidavit refers to Mr Patsouris receiving instructions from Mr Ruzehaji on 5 September 2013. Mr Patsouris indicates that Mr Ruzehaji was previously represented by Mr Michael Dadds. (It appears that Mr Dadds’ instructions were terminated on 9 September 2013: see Exhibit JDA-4 to Affidavit of Jaye Dana Alderson). Mr Patsouris stated that he instructed Mr M. L. Abbott QC and Dr R Gray on Monday 16 September 2013 with respect to a hearing that was scheduled in the District Court for Friday 20 September 2013. That was the hearing that occurred before Judge Muscat. Mr Patsouris stated that on 18 September 2013 he received instructions to obtain the advice of Senior Counsel with respect to my orders of 28 November 2012. He received preliminary advice from Senior Counsel as to that on 1 October 2013; that Senior Counsel conferred with Junior Counsel on 7 October 2013 with respect to the issues raised in the Notice of Appeal to the Supreme Court; and instructions to proceed with the appeal were provided on 8 October 2013. He stated that Mr Ruzehaji and Ruzehaji Enterprises sought an extension of time within which to appeal my orders of 28 November 2012 on the basis of the matters just set out, “including that they have only recently engaged new solicitors”. Mr Patsouris said that it “was not until the receipt of further considered advice from counsel that instructions were obtained to institute this appeal”. He stated: “This appeal was instituted within three days of receiving such advice”. He stated: “The delay in the institution of this appeal was not the consequence of any conduct of either” Mr Ruzehaji or Ruzehaji Enterprises.
That last statement was not expanded upon or explained. No evidence was filed by or on behalf of Mr Ruzehaji or Ruzehaji Enterprises indicating whether or not advice had been sought from or given by their former solicitor or by Senior Counsel who appeared at the examination on 25 March 2013 on the question of any appeal against my orders of 28 November 2012.
Other documents exhibited to Ms Alderson’s affidavit indicated that Mr Patsouris wished to apply to me to stay the hearing of his client Mr Ruzehaji’s application of 19 September 2013 until the determination of his clients’ proposed appeal to the Supreme Court. The application of 19 September 2013 there referred to was Mr Ruzehaji’s application to this court to set aside Order 7 of my orders (the examination orders) and to stay these proceedings pending the determination of the criminal proceedings against Mr Ruzehaji. The Commissioner indicated that such an application, to stay, would be opposed.
On 17 October 2013 the Commissioner’s legal adviser contacted my office indicating that he acted for the Commissioner. He set out some history of the matter. He indicated that the Commissioner was resisting an application to stay these proceedings until Mr Ruzehaji’s criminal charges were completed. He indicated that that resistance was on the basis of s319 of the Act and the very recent decision of the High Court in Lee [2013] HCA 39. That was delivered on 9 October 2013. He indicated that Judge Muscat had stayed the proceedings until a hearing on 6 November 2013 of the two applications before the court. The other was an application by the Commissioner to examine six people. He referred to the Notice of Appeal filed on 14 October 2013 against my orders of 28 November 2012. He indicated the Commissioner would oppose leave to appeal out of time. He advised that Mr Patsouris would make an urgent application to this court to vacate the hearing on 6 November 2013 on the basis that his client’s stay application of 19 September 2013 and the Commissioner’s application of 2 September 2013 for further examination orders ought not be heard until the appeal is determined. He indicated the Commissioner would oppose the proposed application to vacate the 6 November 2013 hearing. He noted that Mr Patsouris’ Outline of Argument for the 6 November 2013 hearing was due on 21 October 2013. He requested that Mr Patsouris’ foreshadowed application to vacate the hearing of 6 November 2013 be listed on Monday 21 October 2013 or later.
I caused the matter to be listed at 9.30am on Monday 28 October 2013.
The Commissioner indicated in a letter to my office dated 18 October 2013 that an application would be made for me to publish reasons for making the orders I made on 28 November 2012. I was later informed that that application was made as a result of the Notice of Appeal filed in the Supreme Court on 14 October 2013. It was said that prior to the appeal being lodged there was never a suggestion that I erred when I made orders on 28 November 2012, nor was there any assertion until then that there was a failure by me to give reasons.
On 28 October 2013 I had before me an application by Mr Ruzehaji and Ruzehaji Enterprises to adjourn the hearing that was then listed before Judge Muscat on 6 November 2013. That was to be made because of the Notice of Appeal to the Full Court of the Supreme Court against my Orders 1 to 7 of 28 November 2012. I also had an application by the Commissioner that I provide reasons concerning the orders I made on 28 November 2012.
On 28 October 2013 I had before me various Outlines of Argument, Lists of Authorities and copies of authorities. Mr A Moses SC appeared with Mr E Greaves, of senior counsel and counsel, for the Commissioner. Mr Abbott QC and Dr Gray appeared for Mr Ruzehaji and Ruzehaji Enterprises.

After hearing submissions I indicated that I had decided to give reasons, or further reasons, for my decision and orders of 28 November 2012. I indicated that I would do that as soon as possible and I would also give reasons for giving reasons, or further reasons. Further, I refused the application on behalf of Mr Ruzehaji and Ruzehaji Enterprises to adjourn the matter set down for hearing on 6 November 2013. I made some procedural variations to some of the orders made by Judge Muscat and reserved all questions of costs.
I now deal with the question of my providing reasons, or further reasons, for the orders I made on 28 November 2012.
I feel a certain artificiality in now giving reasons for my orders of 28 November 2012 and in now providing reasons for doing so. On 28 October 2013 it was nearly twelve months after my orders of 28 November 2012. A number of the orders that I made then had been varied both by me and by a Master of this court. All variations were made by consent of Mr Ruzehaji and Ruzehaji Enterprises and when they were legally represented. Some of the orders I made have taken effect or been carried into effect.
It is difficult for me now to say, or to recall, what was in my mind at the time I made the orders in November 2012. I approached the hearing of 28 November 2012 and the orders that I made within a busy short notice list, and on the basis that I had heard many applications such as the one that was then before me over my many years as a judge. There was nothing particularly special or unusual about the application that was then brought before me. I had not only heard many such applications before, I had heard many similar applications such as urgent applications for interim or interlocutory injunctions. I was anxious to preserve the “status quo” insofar as any assets of Mr Ruzehaji and Ruzehaji Enterprises was concerned, and to make interim or interlocutory orders to do so if I was satisfied of the preconditions to do so. I considered that they were then interim interlocutory orders that would preserve the position so that Mr Ruzehaji and Ruzehaji Enterprises could be served with any orders I made, obtain legal advice and representation, and come back before me to make any application they may be advised to make or to raise any matter before me that they may be advised to raise.
I considered that all the orders I made were interim and interlocutory in nature at the time I made them. Some remained interlocutory, some were discharged, whilst others took on a more final character when, for example, Mr Ruzehaji made a sworn statement of assets and liabilities and when he was examined. Both those events occurred after he had obtained legal representation and had attended before me with legal representation. His examination occurred when he was represented at the examination by Senior Counsel.
My practice at the time in applications of this nature and in other interlocutory applications was to announce briefly that I was satisfied that the circumstances were such that I considered that orders were warranted and were warranted to be made on an ex parte basis. My practice was sometimes to indicate that I reserved the right to publish reasons, or further and better reasons, should it be necessary or should any party request them. Sometimes I did not so indicate.
I was not at that time aware, or at least not conscious, of any authority binding on me that required me to give ex tempore reasons, or of any authority as to what the effect was or might be if I did not reserve to myself the right to give reasons, ex tempore or otherwise, later should I wish to or should either party ask me to. My practice was to publish reasons, or further and better reasons, if the propriety of my orders were called into question by either party, especially the party to whom the orders were directed.
I can say quite confidently now that had Mr Dadds asked me on 19 December 2012 to give reasons for the orders I made about three weeks before, and to give reasons why I heard the application ex parte and made the orders ex parte, I would have done so. Similarly if Mr Dadds had raised any question as to my power to make any of the orders I made, or whether I should not have exercised my discretion to make those orders, or whether it was appropriate for me to make them ex parte, when he attended before me on 19 December 2012, I would have given further, better and fuller reasons.
When I said what I said on 28 November 2012 and when I did what I did on that day I am unable to say now that the legal principles and the authorities as to whether or not I was functus officio after making the orders were at the forefront of my mind. Further, I am sure that I did not consciously think that I must reserve to myself the right to give reasons, or further reasons, at some later stage for what I did. I can, however, say now that would have been my expectation if the orders that I made and the circumstances in which I made them were in any way challenged or questioned by Mr Dadds on behalf of Mr Ruzehaji and Ruzehaji Enterprises on 19 December 2012 or, for that matter, on 11 April 2013 when both of those parties were back before me represented.
If I was functus officio on 28 November 2012 such that I cannot now, properly at law, give reasons or further reasons for what I did on 28 November 2012 the Supreme Court will so decide. If there is some other legal impediment to me now publishing reasons or further reasons for what I did on 28 November 2012 that also will be decided by the Supreme Court. If I cannot, at law, publish reasons or further reasons for what I did on 28 November 2012 (or on 19 December 2012 or on 11 April 2013) then my decisions will no doubt be set aside and the reasons I propose to publish will be to no effect.
I decided to publish reasons or further reasons primarily to assist the Supreme Court in the event it is decided that there is no impediment to my doing so. If that is decided then I consider that it is in the interests of a proper disposal of the appeal to the Supreme Court for that court to be aware of my reasons or further reasons, particularly where I am satisfied, as I am, that the giving of reasons cannot cause prejudice to Mr Ruzehaji or Ruzehaji Enterprises.
I am of the view that the giving of reasons or further reasons by me is not or should not be precluded because my orders are under appeal. To the contrary, I consider that the circumstances of this case require that I assist the Supreme Court by giving reasons or further reasons for my orders of 28 November 2012, and my reasons for now doing so.
It may be that the Supreme Court will need to consider and determine which of the orders I made on 28 November 2012 were interlocutory in nature and which, if any, were final in nature and when, if ever, they became final, thus, potentially at least, making me functus officio.
The other application before me on 28 October 2013 was that I adjourn the hearing that was then listed before Judge Muscat on 6 November 2013 because of the Notice of Appeal to the Full Court of the Supreme Court against my Orders 1 to 7 of 28 November 2012.
I informed the parties at the end of the hearing on 28 October 2013 that that application was refused. I did not say on transcript that I would give reasons for that refusal in due course. I now do so.
I have in these reasons and in my reasons or further reasons for the orders that I made on 28 November 2012 which I shall publish shortly set out the substantive and procedural history of the Commissioner’s action against Mr Ruzehaji and Ruzehaji Enterprises that was commenced in this court on 26 November 2012. The application before me on 28 October 2013 was for an adjournment of the hearing listed for 6 November 2013. It was not an application for a stay of the proceedings before this court. The hearing listed for 6 November 2013 was for the court to hear two applications. One was an application by the Commissioner for examination orders in respect of six people which did not include Mr Ruzehaji. The second application was by Mr Ruzehaji seeking an order setting aside, nunc pro tunc from 19 December 2012, my examination order of Mr Ruzehaji of 28 November 2012, and an order that the proceedings by the Commissioner be stayed pending determination of criminal proceedings against Mr Ruzehaji.
The appeal by Mr Ruzehaji and Ruzehaji Enterprises against my orders of 28 November 2012, or at least my Orders 1 to 7, was to the Full Court of the Supreme Court. Arguably, that notice should have been to a single judge of that court, rather than to the Full Court, as the orders I made were interlocutory in nature.
The Notice of Appeal was significantly out of time. It was lodged nearly eleven months after my orders. It sought to challenge orders that had, in some cases, been varied substantially and, in others, been complied with. It did not seek to challenge, or raise any issue in respect of, the Commissioner’s application before this court for examination orders in respect of six people, none of whom was Mr Ruzehaji.
Mr Ruzehaji and Ruzehaji Enterprises required and sought an extension of time within which to appeal. The grounds for such an extension are that it would be in the interests of justice that my orders are revoked or set aside, and that it was not until just before the notice was filed that Mr Patsouris received instructions to obtain the advice of Senior Counsel with respect to my orders of 28 November 2012, that preliminary advice from Senior Counsel was not received until 1 October 2013, and that it was not until 8 October 2013 that instructions were provided by Mr Ruzehaji and Ruzehaji Enterprises to proceeding with the appeal. Mr Patsouris swore that the appeal was instituted within three days of receiving instructions to institute the appeal after receiving “further considered advice from counsel”.
Mr Patsouris swore that the “delay in the institution of this appeal was not the consequence of any conduct of either” Mr Ruzehaji or Ruzehaji Enterprises.
The fact that Mr Ruzehaji and Ruzehaji Enterprises gave Mr Patsouris instructions to obtain the advice of Senior Counsel with respect to my orders of 28 November 2012 on 18 September 2013 does not mean that Mr Ruzehaji and Ruzehaji Enterprises did not instruct Mr Dadds or Mr Edwardson QC to advise them with respect to my orders of 28 November 2012 in late 2012 or in early 2013. It also does not mean that if neither Mr Ruzehaji nor Ruzehaji Enterprises asked Mr Dadds or Mr Edwardson QC for such advice, that neither gave them any advice as to this matter.
I do know the basis upon which Mr Patsouris swore that the delay in the institution of the appeal was not the consequence of any conduct of either Mr Ruzehaji or Ruzehaji Enterprises. Mr Ruzehaji did not swear an affidavit as to what, if any, advice he received from Mr Dadds and/or Mr Edwardson QC. That is a matter of legal professional privilege that could have been or can be waived by Mr Ruzehaji and Ruzehaji Enterprises.
Furthermore, the proceedings listed on 6 November 2013 partly concerned an application by Mr Ruzehaji that Order 7 of my orders of 28 November 2012 be set aside nunc pro tunc from 19 December 2012. That was sought in an application filed on 19 September 2013, prior to the Notice of Appeal to the Full Court of the Supreme Court. In the same application an order was sought staying the proceedings in the District Court pending determination of the criminal proceedings against Mr Ruzehaji.
On 28 October 2013 this exchange occurred between Mr Abbott and me:
HIS HONOUR:    So you already have before this court even before your appeal, an application to the court to set aside that order of 28 November.
MR ABBOTT:    Yes, but obviously that’s not going to be pursued in this court.
HIS HONOUR:    Why not?
MR ABBOTT:    When it’s being pursued before the Supreme Court.
HIS HONOUR:    Nothing that I know of that’s not being pursued here, that’s been adjourned to 6 November.
MR ABBOTT:    Yes your Honour.
HIS HONOUR:    Have you withdrawn that relief?
MR ABBOTT:    No we haven’t withdrawn it because we’ve only just issued our appeal. Can I go to the –
HIS HONOUR:    Yes, take me to the case.
MR ABBOTT:    First of all Kirk’s case, it’s at 83 I ...
Even if I were to infer that that relief would be withdrawn before 6 November 2013 I was given no indication that the other relief sought by Mr Ruzehaji and to be heard on 6 November 2013 was to be withdrawn. That other relief was for a stay of the proceedings in the District Court pending determination of the criminal proceedings against Mr Ruzehaji.
On 28 October 2013 Mr Abbott submitted that if I did not grant an adjournment of the matters listed on 6 November 2013 that would result in Mr Ruzehaji and Ruzehaji Enterprises being denied the opportunity to pursue their “primary case in advance of (their) alternative case”. The primary case was asserted to be that my orders of 28 November 2012 were made beyond power. Their secondary case was that “the District Court retains jurisdiction to set aside the orders, and the orders of 28 November 2012 should be set aside” (para 7.2 of Outline of Argument in respect of the application for an adjournment). Mr Ruzehaji, by his interlocutory application filed 19 September 2013, did not seek to set aside all of my orders of 28 November 2012. He sought only to set aside Order 7 (the examination order).
In all those circumstances I decided to refuse the application for an adjournment.
Arguably the Notice of Appeal in the Supreme Court was defective, it was significantly out of time, there appeared to me to be no direct sworn evidence as to whether or not Mr Ruzehaji and Ruzehaji Enterprises received advice earlier than October 2013 regarding whether my orders were made according to law, that events had moved on substantially since the making of my orders a year ago, and there was already an application by Mr Ruzehaji to set aside the examination order and to stay the District Court proceedings pending determination of criminal proceedings against Mr Ruzehaji.
I considered that the two applications in this court could and should be heard and decided on their merits on 6 November 2013. I considered that the likelihood of that causing prejudice to Mr Ruzehaji or Ruzehaji Enterprises was slight and remote.
Accordingly, I refused the application for an adjournment.