Commissioner of the Australian Federal Police v Tradieh

[2022] NSWSC 727

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Commissioner of the Australian Federal Police v Tradieh [2022] NSWSC 727

Hearing dates:

3 June 2022

Date of orders:

3 June 2022

Decision date:

03 June 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Upon the plaintiff providing, on behalf of the Commonwealth, the usual undertaking as to costs and damages the Court orders that:

Preliminary orders

1. Pursuant to rule 6.15 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the Summons dated 30 May 2022 (Summons) be made returnable immediately.

2. Pursuant to section 26(4) of the Proceeds of Crime Act (Cth) (Act) and UCPR 18.2(2), the application for relief in prayers 1 to 13 of the Summons be heard and determined without notice.

Section 17 Restraining Orders

3. Pursuant to section 17(2)(a) of the Act, the property specified in Schedule One, being property of Ammar Assaad Tradieh, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

4. Pursuant to section 17(2)(a) of the Act, the property specified in Schedule Two, being property of Ammar Assaad Tradieh, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

5. Pursuant to section 17(2)(a) of the Act, the property specified in Schedule Three, being property of Ammar Assaad Tradieh, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

6. Pursuant to section 17(2)(b) of the Act, all property of Ammar Assaad Tradieh with a value of AUD5,000 or more, other than the property specified in Schedule One, Schedule Two and Schedule Three to these orders, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

Section 19 Restraining Orders

7. Pursuant to section 19 of the Act, the property specified in Schedule One must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified.

8. Pursuant to section 19 of the Act, the property specified in Schedule Two must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified.

9. Pursuant to section 19 of the Act, the property specified in Schedule Three must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified.

Sworn statement orders

10. Pursuant to section 39(1) of the Act, Ammar Assaad Tradieh is directed to give to the Plaintiff within 14 days of the date of service of these orders a sworn statement in the form set out in Schedule Four setting out all of his:

(a) Interests in property (within the meaning of the Act) worldwide, not including any asset or interest in property with a value of less than AUD5,000 as at the date of these orders; and

(b) Liabilities, worldwide, not including any liability with a value of less than AUD5,000 as at the date of these orders.

11. Pursuant to section 39(1) of the Act, Ammar Assaad Tradieh is directed to give to the Plaintiff within 14 days of the date of service of these orders a sworn statement in the form set out in Schedule Five setting out particulars of, or dealings with, the property in Schedule One, Schedule Two and Schedule Three and all property covered by order 6.

Custody and control order

12. Pursuant to section 38 of the Act, the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the property specified in Schedule One.

13. Without limiting any other of the powers or duties of the Official Trustee, pursuant to section 39(1) of the Act, the Official Trustee is permitted, to the extent reasonably necessary, to do any or all of the following with respect to the property specified in Schedule One (Controlled Real Property):

(a) gain access to and inspect the Controlled Real Property with 48 hours’ notice;

(b) secure the Controlled Real Property;

(c) insure any building on the Controlled Real Property as and when required;

(d) lease the Controlled Real Property, including doing all things necessary in relation to any existing leases or enter into new leases;

(e) collect any rental monies payable in connection with the Controlled Real Property; and

(f) apply any rental income received from the Controlled Real Property to meet any costs or expenses relating to the said property including management fees and commissions incurred in the ordinary course of business, maintenance costs, insurance, rates, land tax or municipal or statutory charges.

Other orders

14. Matter be listed for directions hearing before the Common Law Registrar on 29 July 2022.

15. The parties have liberty to restore the matter on 48 hours’ written notice.

16. These orders be entered forthwith.

SCHEDULE ONE

Real property at 192 The Inlet Road Bulga, NSW, being Lots 521 and 522 of Deposited Plan 1046535.

SCHEDULE TWO

Toyota Hiace motor vehicle bearing Vehicle Identification Number JTFHT02PX00244606.

SCHEDULE THREE

Red Massey Ferguson tractor with a rotary hoe seized by members of the Australian Taxation Office during the execution of a search warrant at 192 The Inlet Road Bulga, NSW on 13 January 2021.

SCHEDULE FOUR

1. Provide full particulars of the nature and extent of your property and, where applicable, the property of any company of which you are a director, including the following particulars in relation to each item of property:

a. Description of the property, including the nature of your interest in it and, where possible, the estimated value, and the location of the property;

b. The approximate date of acquisition of the property; and

c. A full description of any liability in relation to the property, including the amount of the liability and the name of the person or institution to which the liability is owed.

2. Provide full particulars of your current liabilities or, where applicable, the liabilities of any company of which you are a director, including the following particulars in relation to each liability:

a. Full description of each liability including the nature of the liability and the amount of the liability; and

b. The name of the person or institution to which the liability is owed.

SCHEDULE FIVE

Provide full particulars of any disposition or dealing with property since 1 July 2016 including:

1. Description of the property disposed of or dealt with, including the nature of the disposition or dealing and any proceeds received as a result of the disposition or dealing;

2. The location of the property;

3. The date of the disposition or dealing;

4. The name of the person or institution to which the property was transferred;

5. The amount and date of payments made to discharge any liability in relation to the property; and

6. The source of the payments referred to in paragraph 5 above.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Proceeds of Crime Act 2002 (Cth)

Taxation Administration Act 1953 (Cth)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Commissioner of the Australian Federal Police (Plaintiff)
Ammar Assaad Tradieh (Defendant)

Representation:

Counsel:
M Short - Ex parte (Plaintiff)

Solicitors:
Criminal Assets Litigation, Australian Federal Police (Plaintiff)

File Number(s):

2022/161182

Publication restriction:

Nil

Judgment

1. The plaintiff applies for a restraining order under ss 17 and 19 of the Proceeds of Crime Act 2002 (Cth). The plaintiff also seeks some ancillary orders, including for custody and control of the property sought to be restrained pursuant to s 38 of the Act, and for sworn statement orders pursuant to s 39 of the Act.

2. Sections 17 and 19 contain similar requirements for the making of restraining orders, although they are not identical. Each provides that a Court with proceeds jurisdiction, including this Court, must order that property is not be disposed of or otherwise dealt with by any person if certain requirements are established.

3. The first of those requirements, common to both sections, is that a proceeds of crime authority applies with the order. In this case, that is satisfied because the application is made by the Commissioner of the Australian Federal Police who is a proceeds of crime authority.

4. Under s 17, the second requirement is that a person has been convicted of or has been charged with an indictable offence. The evidence in the present case concerning that matter appears in the affidavit of Michael O'Rourke sworn on 30 May 2022. That affidavit discloses that the defendant has been charged with two offences under the Taxation Administration Act 1953 (Cth) of possessing tobacco, tobacco seed (plant or leaf), of 500 kilograms or above, and also with the offence of manufacturing such product. The defendant has pleaded guilty to the charge of manufacture, and the possession charge has been withdrawn.

5. The third requirement for s 17 is that an affidavit setting out the matters in s 17(3) have been met, and I am satisfied that that is so. There is a similar requirement in s 19 for an affidavit of an authorised officer stating that the authorised officer suspects that the property is the proceeds of the offence, or that the property is an instrument of the offence, and the affidavit of Mr O'Rourke shows those matters.

6. Section 17 requires that the Court be satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds. I have read the affidavit of Mr O'Rourke and I am satisfied that Mr O'Rourke holds the suspicion on reasonable grounds.

7. Section 19 requires that there are reasonable grounds to suspect that the property is, inter alia, an instrument of a serious offence, and that the authorised officer who made the affidavit holds that suspicion in the affidavit on reasonable grounds.

8. The offences are both serious offences as defined, and I am satisfied from    Mr O'Rourke's affidavit that the grounds on which he holds the suspicion, are reasonably held.

9. The applicant seeks that this application be dealt with in the absence of the defendant and without notice to him pursuant to s 26(4) of the Act. I must consider the application without notice having been given if the responsible authority so requests the Court to do so.

10. In the circumstances of the provisions of both s 17(1) and s 19(1) being satisfied, the Court must make the orders under those sections.

11. I am satisfied also that it is appropriate to make the orders sought under s 38 of the Act that the Official Trustee in Bankruptcy should take custody and control of the property specified in Schedule 1 to the summons. I am also satisfied that it is appropriate that orders under s 39 of the Act be made for the provision by the defendant of the sworn statement in the form set out in Schedules 4 and 5 of the summons.

12. I note the undertaking of Mr Short given on behalf of the plaintiff. In those circumstances, I make the orders contained in paragraphs 1-13 of the Short Minutes of Order signed by me.

13. Proceedings are stood over before the Common Law Registrar on 29 July 2022. The parties have liberty to restore the matter on 48 hours written notice and I direct that the orders be entered forthwith.

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Amendments

03 June 2022 - Judgment date amended

Decision last updated: 03 June 2022