Commissioner of the Australian Federal Police v Zhao and Anor

[2014] HCATrans 161

[2014] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M65 of 2014

B e t w e e n -

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Applicant

and

QING ZHAO

First Respondent

XING JIN

Second Respondent

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 11 AUGUST 2014, AT 10.00 AM

Copyright in the High Court of Australia

MR D.J. NEAL, SC:   I appear with my learned friend, MR P. KULEVSKI, on behalf of the applicant, your Honour.  (instructed by Australian Federal Police – Proceeds of Crime Litigation)

MR T.D. BEST:   If it please the Court, your Honour, I appear on behalf of the respondents.  (instructed by Chiodo & Madafferi)

HER HONOUR:   Yes, Mr Neal.  This is your application for expediting an application for special leave?

MR NEAL:   That is correct, your Honour, it is.  Your Honour, can I confirm that you received an affidavit sworn on Friday the 8th from Dino Skoblar?

HER HONOUR:   Yes.

MR NEAL:   Which updates the position in relation to a case in the South Australian Full Court of Ruzehaji and confirms that the South Australian Full Court has now reserved its decision in that case pending the outcome of the special leave application.

HER HONOUR:   Now, that renders otiose, does it not, paragraph 20 of Mr Gray’s affidavit in the light of an objection to the reading of paragraphs 19 to 21?

MR NEAL:   It does.  It effectively updates the position that was stated there and it now is determined by the South Australian court.

HER HONOUR:   So in the context of receiving Mr Gray’s affidavit, paragraph 20 should not be read.

MR NEAL:   We accept that, your Honour.

HER HONOUR:   Thank you.  Yes.

MR NEAL:   Your Honour, we say that this case has considerable public importance and wide implications, not only for the administration of the Proceeds of Crime – the Commonwealth Act, but also for the similar State‑based legislative schemes.  The test that has been ‑ ‑ ‑

HER HONOUR:   So that public importance is not confined to the Commonwealth legislation.

MR NEAL:   It is not, your Honour.  It is like Lee’s Case itself which concerned the Criminal Assets Recovery Act (NSW) that the principles at

stake here apply variously depending on the State‑based legislation.  So the principles applicable to stay and the ability to have civil forfeiture proceedings go on, notwithstanding an upcoming criminal trial.  That issue is live for some of those legislative schemes as well as this one.

HER HONOUR:   In any event, you rely on your written material.  I might be assisted if I were to hear from Mr Best, who I understand is opposing the application.

MR NEAL:   Yes, your Honour.

HER HONOUR:   Thank you, Mr Neal.  Yes, Mr Best, I have read your written submissions.

MR BEST:   Yes, your Honour.  Your Honour, the main affidavit filed late Friday afternoon further material in support of the applicant’s summons.  Your Honour, there is concern that this application is premature, that it is presumptive of the applicant to write to the Court of Appeal South Australia, to write and to say reserve the position until special leave is heard.  It is presumptive to say that in ‑ ‑ ‑

HER HONOUR:   Well, whether it is or it is not, the only concern today is whether or not an order should be made on the summons for an expedited hearing in relation to the application.

MR BEST:   Yes, your Honour.

HER HONOUR:   It might assist you if I were to indicate to you that I have had inquiries made.  There is room in the special leave list in Sydney in September and no other applicant for special leave will be displaced by adding this application to that list which can be heard by video link to Melbourne.

MR BEST:   Yes, your Honour, I ‑ ‑ ‑

HER HONOUR:   I mention those matters for your assistance, Mr Best.

MR BEST:   Yes, that is appreciated, your Honour, and that certainly makes things clearer.  The concern I have, my clients have had their assets frozen under the Act.  There are restraining orders in place.  They remain in place, notwithstanding the decision of the Court of Appeal.  My client is not really in a position to be able to be attending a Registry hearing in Sydney.  Now, I hear your Honour say, well, there is video link available but it is, in my 10 years at the Bar, your Honour, I have never placed great stock in appearing by video link.  It is always important to appear in person before the Bench.

HER HONOUR:   I am bound to say, Mr Best, we commonly have special leave applications done by video link because it saves costs to the parties involved.

MR BEST:   I understand that, your Honour, but if the matter was heard in the ordinary course and was heard together with various special leave applications here in the Melbourne Registry, we say that would greatly assist the applicants, taking into account their position as a respondent rather with all their assets frozen.

HER HONOUR:   Yes.

MR BEST:   That is, we say, a relevant consideration for this Court in hearing this particular summons.

HER HONOUR:   Yes.

MR BEST:   Your Honour, I filed submissions on Friday.  Your Honour has read those submissions.

HER HONOUR:   I have, thank you for those.

MR BEST:   There were various concerns raised about the affidavit material that had been filed as at that date and as at the time of the filing of these submissions, your Honour, we only had the affidavit from Mr Gray and not the additional material.

HER HONOUR:   Well, your objection to paragraph 20 was well taken and has been acted on this morning.

MR BEST:   Yes, your Honour.  Your Honour, we have difficulty understanding the urgency or the apparent urgency that the applicants say is relevant to the hearing and the expedited hearing.  This is a case where a decision has been made in the Court of Appeal of Victoria.  It has been made with regard to particular facts and particular sections of the federal Act.  What is not stated in the material is to what extent the South Australian case is relevant to the facts of the decision in the Court of Appeal. 

HER HONOUR:   Whether it is or it is not, there may be other applications under Commonwealth legislation, putting aside the South Australian position for the moment, which raise a public interest dimension to the application for special leave.

MR BEST:   Well, there may well be but they have not been identified in any of the material.  The applicant is well funded, the applicant has resources untold.  The applicant can surely put before this Court an affidavit setting out in great detail all the cases that it says are going to be directly relevant to the decision of the Court of Appeal and it simply has not done that.  It has chosen to file an affidavit of Mr Gray which at the last minute it has decided it needs to update.  It has had this summons on foot since July.  Your Honour, we say this application is poorly prepared.  There ought to be submissions filed of the actual special leave application.  They ought to have been filed.  If they want to hear this with expedition, those submissions ought to have been filed and they need to be up on the front foot.  Now, junior to Mr Neal is speaking to me sotto voce and saying that submissions had been filed.

HER HONOUR:   I am just looking and that is my impression also, Mr Best.

MR BEST:   Your Honour, I have not been informed of that and they have not been provided to my instructing solicitor.

HER HONOUR:   My understanding is that there has been a filing of both the draft notice of appeal and the submissions and on the normal timetable submissions from the respondent would be due on Friday next and I would propose not disturbing that timetable so that you will have the usual amount of time in relation to the filing of submissions in response.

MR BEST:   Yes, your Honour.

HER HONOUR:   Anything further, Mr Best?

MR BEST:   No, your Honour.

HER HONOUR:   Anything in reply, Mr Neal?

MR NEAL:   No, your Honour.  In relation to our learned friend’s concern to appear in person, we would not have an objection if it was possible to have a special leave application in October but we understand the calendar for next special leave in Melbourne is actually November and we would rather ‑ ‑ ‑

HER HONOUR:   That is right.

MR NEAL:   We make those points.

HER HONOUR:   Mr Neal, if the timetable in respect of the respondent’s filing of submissions remains undisturbed, there will then be the question of

the application book being prepared – under normal circumstances there would be four weeks, but I would be proposing to direct that you prepare that application book within two weeks.

MR NEAL:   Yes, that can be done, your Honour.

HER HONOUR:   And consideration can be given to any question of reply and it also means that the respondent has plenty of time to consider the application book.

MR NEAL:   No, of course we would comply with all of those things to ensure it ran smoothly.

HER HONOUR:   Thank you, Mr Neal.  I propose to order as follows:

1.Subject to any further order of the Court or a Justice the application for special leave in this matter be fixed for hearing in the list of cases to be heard in Sydney on 12 September 2014, that hearing to occur by video link to Melbourne.

2.The applicant for special leave to file an application book on or before 29 August 2014.

3.The costs of this summons be reserved for consideration of the Full Court that hears the application for special leave to appeal.

Anything further, counsel?

MR BEST:   No, your Honour.

MR NEAL:   No, your Honour.

HER HONOUR:   Adjourn the Court.

AT 10.10 AM THE MATTER WAS ADJOURNED