Corruption and Crime Commission v Abdul-Aziz - [2022] WASC 106

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   CORRUPTION AND CRIME COMMISSION -v- ABDUL-AZIZ [2022] WASC 106
CORAM:   CURTHOYS J
HEARD:   26 MAY 2021
DELIVERED          :   31 MARCH 2022
PUBLISHED           :   5 APRIL 2022
FILE NO/S:   CIV 2190 of 2020
BETWEEN:   CORRUPTION AND CRIME COMMISSION
Applicant
AND
MUJTABA IBN ABDUL-AZIZ
First Respondent
LNK HOLDINGS PTY LTD
Second Respondent
TPT HOLDINGS PTY LTD
Third Respondent
MACLMA PTY LTD
Fourth Respondent

Catchwords:

Criminal property confiscation - Freezing order made ex parte against first and second respondents - Application to set aside freezing order on basis of defective affidavit

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 43(1)(c)
Rules of the Supreme Court 1971 (WA), O 58 r 23

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	S Mullins & J Jupp
First Respondent	:	E Greaves
Second Respondent	:	E Greaves
Third Respondent	:	Not Applicable
Fourth Respondent	:	Not Applicable

Solicitors:

Applicant	:	Corruption and Crime Commission of Western Australia
First Respondent	:	Kingdom Legal
Second Respondent	:	Kingdom Legal
Third Respondent	:	Holborn Lenhoff Massey
Fourth Respondent	:	In Person

Cases referred to in decisions:

Bennett & Co (a firm) v Director of Public Prosecutions (WA) [2005] WASCA 141; 31 WAR 212
Director of Public Prosecutions (WA) v Yeo [2012] WASC 440
Erpen v IG Markets Ltd [2016] WASC 35
Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486

CURTHOYS J:

Introduction

On 1 December 2020, the Corruption and Crime Commission (CCC) filed an application by ex parte motion for a freezing order under s 43(1) of the Criminal Property Confiscation Act 2000 (WA) (CPC Act) against the first and second respondents (the respondents).
The application for a freezing order was supported by an affidavit sworn by an officer of the CCC on 1 December 2020 (CCC Affidavit) and a written outline of submissions.
The ground for the application was that the CCC had made examination orders in relation to property under s 58(1) of the CPC Act to advance its investigation into whether one or more of the respondents or associated persons have unexplained wealth or criminal benefits, or both.
On 3 December 2020, the court made a freezing order against the respondents as sought by the CCC.
This is an application by the respondents to set aside the freezing order under O 58 r 23 of the Rules of the Supreme Court 1971 (WA) (Rules).
The basis of the respondents' application to set aside the freezing order is that the CCC Affidavit filed in support of the freezing order 'contained voluminous inadmissible (unsourced) hearsay' and 'objectionable conclusions, irrelevant material and vague statements that are embarrassing'.[1]
[1] Submissions in support of application by first and second respondents to set freezing order aside pursuant to RSC O 58 r 23 dated 4 May 2021 [8] (Respondents' Submissions).

Legal principles

The court's discretion to set aside ex parte freezing order

The court has the power under O 58 r 23…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WASC 106
Decision Date: 5 APRIL 2022

CaseChat Overview and Summary

The respondents, Abdul-Aziz, along with several other entities, applied to the Federal Court to set aside a freezing order made ex parte against them by the Corruption and Crime Commission (CCC). The CCC had obtained the order under the Criminal Asset Recovery Act 2006 (Cth) on the basis of suspected criminal conduct involving proceeds of crime. The applicants argued that the affidavit supporting the order was defective, containing false and misleading statements, and therefore the order should be set aside.

The court considered whether the affidavit was sufficient to justify the making of the ex parte freezing order. The court examined the contents of the affidavit and assessed whether the CCC had satisfied the threshold requirements for obtaining such an order. The applicants contended that the affidavit contained inaccuracies and misleading information, rendering it defective. The court had to determine whether the alleged defects were significant enough to warrant setting aside the freezing order.

The court found that the CCC had satisfied the threshold requirements for making the ex parte freezing order. While acknowledging the presence of some inaccuracies in the affidavit, the court held that these did not undermine the overall reliability of the affidavit or the justification for the order. The court emphasised the importance of the affidavit providing a fair summary of the evidence supporting the making of the order and noted that the CCC had included sufficient information to justify the order. Consequently, the application to set aside the freezing order was dismissed.

The court ordered that the freezing order remain in place, and the respondents were directed to pay the CCC's costs of the application.

Orders