Dickson v Commissioner of Australian Federal Police

[2019] NSWSC 1293

Supreme Court

New South Wales

Medium Neutral Citation:	Dickson v Commissioner of the Australian Federal Police [2019] NSWSC 1293
Hearing dates:	17 May 2019
Date of orders:	26 September 2019
Decision date:	26 September 2019
Jurisdiction:	Common Law
Before:	Wright J
Decision:	(1) The plaintiff’s application for leave to institute the proceedings under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) is refused. (2) To the extent necessary, the proceedings are dismissed under r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW). (3)   The plaintiff’s notice of motion filed on 28 January 2019 is dismissed. (4)   The plaintiff is to pay the defendant’s costs of the proceedings, as agreed or assessed.
Catchwords:	CIVIL PROCEDURE – application for summary dismissal – no reasonable cause of action
Legislation Cited:	Civil Procedure Act 2005 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Criminal Code Act 1995 (Cth) Federal Court Act 1976 (Cth) Felons (Civil Proceedings) Act 1981 (NSW) Interpretation Act 1987 (NSW) Proceeds of Crime Act 2002 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	AD v Commissioner of the Australian Federal Police (2018) 97 NSWLR 588; [2018] NSWCA 89 Anthony James Dickson v The Queen [2016] HCATrans 307 Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41 Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5 Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12; 92 ALJR 399 Commissioner of Australian Federal Police v Thirteen Defendants (NSW Supreme Court, 26 April 2012, unrep) Commissioner of the Australian Federal Police v Dickson (No.3) [2016] NSWSC 564 Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 Dickson v Commissioner of the Australian Federal Police [2018] HCASL 5 Dickson v R [2016] NSWCCA 105 Dickson v R (No 2) [2018] NSWCCA 183 Dickson v R (No 3) [2018] NSWCCA 242 Dickson v The Queen [2019] HCASL 187 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Johnson v Gore Wood & Co [2002] 2 AC 1 Jol v State of New South Wales (1998) 45 NSWLR 283 Ke Qin Ren v Hong Jiang [2014] NSWCA 388 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Patch v Ward (1867) 3 LR Ch App 203 Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 R v Anthony James Dickson (No 18) [2015] NSWSC 268 Rippon v Chilcotin (2001) 53 NSWLR 198 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26 SW v State of New South Wales [2010] NSWSC 966 The Ampthill Peerage [1977] AC 547 The Commissioner of the Australian Federal Police v Dickson & Ors [2013] NSWSC 560 The Commissioner of the Australian Federal Police v Q (NSWSC 11 April 2012, unrep) Thomas A Edison Limited v Bullock (1912) 15 CLR 679; [1912] HCA 72 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 UBS AG v Tyne [2018] HCA 45 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Category:	Principal judgment
Parties:	Anthony James Dickson (Plaintiff ) Commissioner of the Australian Federal Police (Defendant)
Representation:	In person (Plaintiff) Counsel: Mr A Moses SC and Mr Anderson (Defendant)   Solicitors Minter Ellison (Defendant)
File Number(s):	2018/000279031

Judgment

Introduction

1. By a statement of claim filed on 11 September 2018, the plaintiff, Mr Dickson, sought the following relief:

“1. A declaration that the s.18 of the Proceeds Of Crime Act 2002 (Cth) (“POCA”) restraining orders granted by McCallam J [sic] of the Supreme Court on 11 April 2012 [sic] are vitiated by the fraud on the court by the defendant and their legal counsel and the s.18 restraining orders are void ab initio.

2. A declaration that the s.18 POCA restraining orders granted by Beech-Jones J of the Supreme Court on 26 April 2012 are vitiated by the fraud on the court by the defendant and their legal counsel and the s.18 restraining orders are void ab initio.

3. A declaration that the s.18 POCA restraining orders granted McCallan J [sic] of the Supreme Court on 11 April 2012 [sic] and by Beech-Jones J of the Supreme Court on 26 April 2016 involved fundamental abuses of process and are void ab initio.

4. An order for exemplary damages against the Commissioner of the Australian Federal police.”

2. On 30 November 2018, the defendant, the Commissioner of the Australian Federal Police, filed a notice of motion seeking:

“1. Pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW), an order that the statement of claim filed by the Plaintiff on 11 September 2018 be struck out.

2. Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), an order that this proceeding be dismissed.

3. An order that the Plaintiff is to pay the Defendant’s costs of the proceeding.”

3. In support, the Commissioner relied upon the affidavit Christine Plevey sworn 30 November 2018 and the exhibits to that affidavit.

4. Mr Dickson also moved the Court on a notice of motion dated 28 January 2019 seeking:

“1. Pursuant to r 13.1(1) and (2) of the Uniform Civil Procedure Rules 2005 (NSW), and the inherent jurisdiction of the Supreme Court of New South Wales an order that the court give judgment for the plaintiff including for exemplary damages claimed by the plaintiff.”

5. In support of his notice of motion, Mr Dickson relied upon his affidavit dated 19 August 2018 and his two affidavits of 3 May 2019.

Felons (Civil Proceedings) Act 1981 (NSW)

6. At this point is important to note that Mr Dickson was found guilty on 22 December 2014 of conspiracy to dishonestly cause a loss, or a risk of loss, to the Commonwealth, knowing or believing there was a substantial risk of the loss occurring, contrary to s 135.4(5) of the Criminal Code Act 1995 (Cth) (the “Code”) and conspiracy to deal with property of a value of $1 million or more believing it to be the proceeds of crime contrary, to s 11.5(1) and s 400.3(1) of the Code. These are both indictable offences carrying a maximum penalty in excess of 5 years’ imprisonment.

7. Mr Dickson was on 11 September 2018, and is currently, in custody serving a term of imprisonment as a result of being convicted of those offences. The applicable sentences were imposed by the Court of Criminal Appeal when resentencing after a successful Crown appeal against sentence: see Dickson v R [2016] NSWCCA 105. It is sufficient to note that the sentences commenced on 22 December 2014, the non-parole period expires on 21 March 2024 and the last sentence expires on 21 December 2028.

8. The Felons (Civil Proceedings) Act 1981 (NSW) (“the Felons Act”) provides in s 4 that:

“A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.”

9. Under s 21 of the Interpretation Act 1987 (NSW), the expression “serious indictable offence” in any Act means “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more”.

10. Accordingly, Mr Dickson required leave of the Court to institute the present proceedings in this Court, to the extent that they are “civil proceedings”. The fact that proceedings for which leave is required are commenced without leave does not render the proceedings a nullity. In such a case, leave under s 4 may be sought and granted nunc pro tunc: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290 (Sheller JA, Beazley JA and Sheppard AJA agreeing); SW v State of New South Wales [2010] NSWSC 966 at [14] and [15] (Johnson J).

11. Section 5 of the Felons Act, however, prohibits the Court from granting leave under s 4:

“unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.”

12. Section 7 of that Act provides that, except with the leave of the Court to which the application is made, neither the applicant nor the person who would be the defendant if the proceedings were instituted, is entitled to appear or be represented at the hearing or determination of the application for leave to institute proceedings.

13. Mr Dickson applied for leave to institute the proceedings, under s 4 of the Felons Act, by a document headed “Plaintiff’s Summary Submissions on Leave” filed on 10 October 2018. (The statement in par 1 of that document that the statement of claim was filed on 27 August 2018 appears to refer to the fact that the statement of claim was lodged on 27 August 2018 but was not accepted for filing until 11 September 2018: see par 20 of that document.)

14. Mr Dickson’s submissions on the application for leave under the Felons Act proceeded on the implicit assumption that the proceedings were “civil proceedings” for the purposes of that Act.

15. In Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 (“Patsalis”), Basten JA held, at [9] and [57] that applications for judicial review of administrative decisions or other applications in the supervisory jurisdiction of this Court reflected in s 69 of the Supreme Court Act 1970 (NSW) were not “civil proceedings” within the meaning of s 4 of the Felons Act. Sackville AJA, at [112] agreed that leave was not required in order to institute the proceedings by which the applicant sought judicial review of various decisions relating to the conditions of his incarceration and to his entitlement to access legal documents while in custody. Allsop P (as his Honour then was) agreed, at [1], with Basten JA and Sackville AJA and added comments at [5] to [7] that suggested, without deciding, that the phrase “civil proceedings” would include an "action for a civil wrong" understood as a claim for a private remedy to redress an injury from wrongful conduct whether at common law, in equity or statute.

16. Although framed as declarations that the restraining order is void ab initio (which gives rise to issues which are addressed below), the relief which Mr Dickson seeks appears to involve the power of the Court to set aside its own perfected orders for fraud and for abuse of process.

17. Proceedings of this nature, as well as proceedings for exemplary damages (as sought in the plaintiff’s statement of claim), are not proceedings for judicial review of administrative decisions or other applications in the supervisory jurisdiction of this Court. They are proceedings effectively seeking private remedies to redress an injury from wrongful conduct whether at common law, in equity or under the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). On this basis, the nature of the relief effectively sought in the statement of claim establishes that these proceedings can be taken to be “civil proceedings” for the purposes of s 4 of the Felons Act. Accordingly, the plaintiff does require leave to institute the proceedings.

18. It does not appear that the question of whether leave to institute the present proceedings has been determined previously. As a result and given that both parties were in a position to make submissions on that topic when the notices of motion of the defendant and the plaintiff, referred to above, came on for hearing before me on 17 May 2019, it is appropriate that, under s 7 of the Felons Act, I grant leave to Mr Dickson to appear in person and to the Commissioner to be represented at the hearing on 17 May 2019 of the application for leave under s 4 of the Felons Act.

Overlapping issues

19. As noted above, by operation of s 5 of the Felons Act the Court must not grant leave under s 4, unless satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings. In substance, the same issues, namely whether the proceedings are an abuse of process and whether a reasonable cause of action is disclosed, are raised by defendant’s notice of motion seeking to have the statement of claim struck out, under UCPR r 14.28(1)(a) and (c), and an order that the proceedings be dismissed, under UCPR r 13.4(1)(b) and (c).

20. Consequently, the issues to be determined largely, if not entirely, overlap. In these circumstances, it is convenient to consider the Commissioner’s notice of motion seeking to have the statement struck out and the proceedings dismissed at the same time as the application for leave to institute proceedings under the Felons Act. Only if Mr Dickson is successful in relation to both of those applications will it be necessary to address his notice of motion for summary judgment. If he is unsuccessful in obtaining leave to institute the proceedings under the Felons Act or in opposing the Commissioner’s application for summary dismissal, Mr Dickson’s summary judgment application will necessarily fail.

21. In order to understand the nature and viability of Mr Dickson’s pleaded case in relation to fraud and abuse of process, it is necessary to set out the background not only to the orders made under the Proceeds of Crime Act 2002 (Cth) (“POC Act”) but also what occurred in the related criminal proceedings.

Background

Outline

22. The Australian Taxation Office (“ATO”) commenced an audit of Neumedix Health Australasia Pty Ltd (“NHA”) in March 2010.

23. In April 2012, the Commissioner of the Australian Federal Police made ex parte applications under the POC Act for restraining orders which prevented Mr Dickson, his co-accused and others from disposing of, or otherwise dealing with, assets including bank accounts and real estate, said to be worth more than $150 million, and said to be derived from the activities of NHA.

24. In about April 2012, the Australian Federal Police (“AFP”) executed search warrants and seized documents, computers and related equipment relating to NHA and assets associated with it.

25. Following the making of the restraining orders under the POC Act, Mr Dickson and his co-accused were charged with offences in relation to the activities of NHA. The charges can be adequately described for present purposes as being to the following effect:

1. in contravention of s 135.4(5) of the Code, Mr Dickson and his co-accused each conspired to dishonestly cause a loss, or to dishonestly cause a risk of loss, to the Commonwealth, knowing or believing that there was a substantial risk of loss occurring (“the tax fraud offence”); and

2. in contravention of ss 11.5 and 400.3(1) of the Code, they each conspired to deal with property of a value of $1 million or more believing it to be the proceeds of crime, being the proceeds of the tax fraud offence (“the money laundering offence”).

26. Mr Dickson was tried in 2014 and, on 22 December 2014, was found guilty of the two offences. He was convicted and sentenced for these offences on 20 March 2015: R v Anthony James Dickson(No 18) [2015] NSWSC 268 (“Dickson 18”). In Dickson 18, Beech-Jones J described in general terms the conduct found to have been proved in the criminal proceedings as follows:

“8   Neumedix Health Australasia Pty Ltd (“NHA”) was incorporated on 9 March 2006. Its two directors were the [plaintiff] and his co-conspirator.

9   The essence of the Crown case on count 1 [the tax fraud offence], as accepted by the jury, was that the [plaintiff] and his co-conspirator agreed to cause NHA to make false depreciation claims in its tax returns of many hundreds of millions of dollars. The depreciation claims were in respect of the alleged cost of acquisition by NHA of certain medical technologies, even though it was agreed that no such cost was to be incurred. The [plaintiff] and his co-conspirator agreed to this so as to enable NHA to avoid incurring tax liabilities on income it was deemed to have received as the owner of units in a number of trusts. These trusts generated very large taxable profits from their participation in certain financing transactions that were arranged between the offender, the ANZ Banking Group Ltd (“ANZ”) and some of its clients.

10   The essence of the Crown case on count 6 [the money laundering offence], as accepted by the jury, was that the [plaintiff] and his co-conspirator agreed to deal with the “proceeds of crime” being the amounts standing in various bank accounts that represented the cash distributions from the trusts to NHA. The jury accepted the Crown’s contention that these funds were the “proceeds of crime” because they were derived from the conspiracy the subject of count 1. This was so because, to the knowledge of the [plaintiff] and his co-conspirator, the funds would not be required to meet NHA’s tax liabilities as they would be eliminated by false depreciation deductions and the funds would not be required to make payments on the agreements the subject of the claims for depreciation as no genuine obligation to make those payments would be incurred (see R v Dickson (No 16) [2014] NSWSC 1862 at [19]). The [plaintiff] and his co-conspirator agreed to cause the funds to be distributed offshore to various accounts controlled by entities associated with the [plaintiff] and then repatriated to Australia, largely for their own enrichment.”

27. There followed a considerable number of appeals and applications in relation to both the convictions and the POC Act orders.

28. It is now necessary to examine what occurred in relation to the applications under the POC Act and in relation to the criminal proceedings in more detail. What occurred is set out below largely in chronological order although proceedings in various courts overlapped from time to time.

5 April 2012 restraining orders under the POC Act

29. On 5 April 2012 the Commissioner commenced proceedings under the POC Act in this Court by a summons in which Mr Dickson was named as the first defendant along with 12 other defendants (together the “POC defendants”). The principal relief sought was orders under s 18 of the POC Act preventing the POC defendants from disposing of or otherwise dealing with the property specified in schedules 1 and 2 to the summons.

30. The summons came before McCallum J (as her Honour then was) on 5 April 2012 and the Commissioner was represented by Alan Sullivan QC and Marcus Hassall on that occasion.

31. The Commissioner’s application was supported by the affidavit of an AFP officer, Mr Sandon, sworn 4 April 2012. In that affidavit, Mr Sandon stated, among other things, that he suspected that:

1. Mr Dickson had committed the tax fraud offence (Although at that time the offence was identified as that in s 135.4(3) not s 135.4(5) of the Code, nothing appears to turn on this since they are “related offences” within the definition in s 338 of the POC Act);

2. Mr Dickson had committed the money laundering offence; and

3. the property in schedule one was the property of Mr Dickson, property of another person which was “proceeds” of the suspected offences and all property of another person which was subject to the effective control of Mr Dickson.

32. Mr Sandon also stated in that affidavit the grounds on which he suspected that Mr Dickson had committed the offences were as follows:

1. on 20 March 2012 he had spoken to another AFP officer, Mr Wills-Johnson, who provided to him the statement of facts concerning the criminal investigation of Mr Dickson and his co-accused (“the statement of facts”);

2. Mr Wills-Johnson told Mr Sandon that he was the author of the statement of facts, to the best of his knowledge and belief the contents of the statement of facts were true, and the statement was prepared on the basis of information obtained by police as a result of the investigation described in the statement of facts;

3. on 4 April 2012 Mr Wills-Johnson confirmed that the statement of facts had not changed or been updated; and

4. the information and documents set out and referred to in Mr Sandon’s affidavit including but not limited to two signed statements provided to the AFP by Mr Dickson’s brother.

33. A copy of the statement of facts was exhibited to the affidavit. The exhibit consisted of a one-page executive summary, a three-page case theory and the statement of facts itself, consisting of 205 paragraphs and 3 attachments.

34. Mr Sullivan QC made oral and written submissions to McCallum J on 5 April 2012. After considering the material and the submissions, her Honour made orders on 5 April 2012 and published her written judgement on 11 April 2012 setting out the reasons for making those orders: The Commissioner of the Australian Federal Police v Q (NSW Supreme Court, 11 April 2012, unrep).

35. The orders made by McCallum J on 5 April 2012 included, among others:

1. an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the publication or other disclosure of information tending to reveal the identity or otherwise concerning any of the parties to the proceedings or information contained in or derived from the affidavit of Mr Sandon; and

2. restraining orders under s 18 of the POC Act in relation to the property in schedules 1 and 2 and related orders, such as orders for sworn statements of assets under s 39(1) and examination orders in respect of some of the POC defendants under s 180 of the POC Act.

36. In addition, on 5 April 2012 McCallum J also ordered:

“6. Pursuant to section 33(3)(b) of the [POC] Act, [the Commissioner] is to delay giving notice to the defendants of the orders set out in paragraphs (2) to (5) above, of the summons, and of the affidavit of Adam Thomas Sandon and Exhibit AS1, until 24 April 2012 or until the arrest of [Mr Dickson] …, in relation to the offences specified in paragraph 11 of the affidavit of Adam Thomas Sandon sworn in these proceedings, whichever is the earlier.

7. Pursuant to rule 10.1 of the Uniform Civil Procedure Rules 2005 (NSW), service on [Mr Dickson] … of the summons, the affidavit of Adam Thomas Sandon and Exhibit AS1 and of these orders be delayed until 24 April 2012 or until the arrest of [Mr Dickson] …, in relation to the offences specified in paragraph 11 of the affidavit of Adam Thomas Sandon sworn in these proceedings, whichever is earlier”

37. A copy of Mr Sandon’s affidavit was sent by email to Mr Dickson on 24 April 2012. That email informed Mr Dickson that a copy of the exhibit to Mr Sandon’s affidavit had been left at his address in Northbridge, New South Wales.

26 April 2012 restraining orders under the POC Act

38. By notice of motion filed on 26 April 2012, the Commissioners sought various orders, including a further restraining order in respect of property owned by, or suspected of being under the effective control of, Mr Dickson, being funds held in a number of Bank of New Zealand accounts.

39. The application was heard by Beech-Jones J on 26 April 2012. Mr Hassall of counsel appeared for the Commissioner, who relied upon further affidavits of Mr Sandon sworn 23 and 26 April 2012, in addition to his earlier affidavit of 4 April 2012, among others. Mr Hassall made limited oral submissions and relied upon written submissions.

40. On 26 April 2012, Beech-Jones J made a restraining order under s 18 of the POC Act in respect of the property in schedule 1 to the notice of motion. In addition, his Honour made the following orders:

“3. Pursuant to rule 10.14 of the Uniform Civil Procedure Rules 2005 service on [Mr Dickson] be effected by:

a. Sending a copy of the affidavit of Adam Thomas Sandon sworn on 26 April 2012, the affidavit of Rosanna Celona sworn on 26 April 2012 the notice of motion filed 26 April 2012, and these orders (the Documents) to [Mr Dickson’s email]; and

b. sending a text message to [Mr Dickson’s mobile telephone number…], Notifying him of the existence of the orders and informing him that documents relating to the application for the restraining orders have been left at [his Northbridge address].”

41. On 26 April 2012, Beech-Jones J gave oral reasons for his decision: Commissioner of Australian Federal Police v Thirteen Defendants (NSW Supreme Court, 26 April 2012, unrep).

Subsequent restraining orders under the POC Act

42. On 13 May 2013, the Commissioner sought further restraining orders in respect of property owned by or suspected of being under the effective control of Mr Dickson. Further restraining orders were made by Beech-Jones J on 13 May 2013.

The criminal trial, conviction, sentence and appeals

43. Mr Dickson’s trial on the two counts was conducted between 4 August 2014 and 22 December 2014. He was found guilty on both counts. The proceedings on sentence were heard over three days in February 2015 and on 20 March 2015, Mr Dickson was convicted and sentenced to: imprisonment for 7 years and 6 months (commencing on 22 December 2014) for the tax fraud offence; and 9 years (commencing on 22 December 2016) for the money laundering offence; with a single non-parole period of 7 years expiring on 21 December 2021: R v Anthony James Dickson (No 18) [2015] NSWSC 268.

44. Mr Dickson appealed to the Court of Criminal Appeal against his conviction and the Crown appealed against the sentence.

Automatic forfeiture under the POC Act

45. Under s 92 of the POC Act, if a person is convicted of a serious offence, any restrained property is forfeited to the Commonwealth, unless it is excluded from forfeiture under s 94, at the end of either a six month period starting on the conviction day or an extended period fixed by the court, which must end no later than 15 months from the start of the conviction day, under s 93(1) of the POC Act. In the present case, the conviction date was 20 March 2015. It can be noted here that the initial forfeiture date was eventually extended to 19 May 2016.

Application for orders excluding certain property from forfeiture

46. By notice of motion filed on 10 August 2015, Mr Dickson applied, under s 94 of the POC Act, to have certain property that was the subject of the 5 April 2012 and 26 April 2012 restraining orders excluded from statutory forfeiture to the Commonwealth that would otherwise occur under s 92 of the POC Act.

47. Eventually, that application was heard by Adamson J on 2 and 3 May 2016. On 6 May 2016, her Honour concluded that Mr Dickson had failed to make out his claim for exclusion in respect of any of the items identified and accordingly dismissed the relevant part of his notice of motion: Commissioner of the Australian Federal Police v Dickson (No.3) [2016] NSWSC 564.

Court of Criminal Appeal judgment in the appeals against conviction and sentence

48. On 10 June 2016, the Court of Criminal Appeal gave judgment in relation to Mr Dickson’s appeal against conviction and the Crown’s sentence appeal, which had been heard on 11 and 12 February 2016. The conviction appeal was dismissed and the sentence appeal was upheld: Dickson v R [2016] NSWCCA 105. The Court of Criminal Appeal re-sentenced Mr Dickson as follows:

1. For the tax fraud offence, imprisonment for 9 years, commencing on 22 December 2014 and expiring on 21 December 2023;

2. For the money laundering offence, imprisonment for 12 years, to date from 22 December 2016 and expiring on 21 December 2028;

with

3. a single non-parole period of 9 years and 3 months, expiring on 21 March 2024.

49. On 30 June 2016, the plaintiff applied to the High Court for special leave to appeal from the Court of Criminal Appeal’s judgment. It can be noted, at this point, that the High Court refused the application on 16 December 2016: Anthony James Dickson v The Queen [2016] HCATrans 307.

Appeal to the Court of Appeal against the refusal to exclude property from forfeiture

50. On 28 July 2016, Mr Dickson filed a notice of appeal against the decision of Adamson J on 6 May 2016 refusing to make an order excluding certain property from forfeiture under s 94 of the POC Act.

Forfeiture declaration

51. On 4 August 2016, the Commissioner filed a notice of motion seeking a declaration under s 95 of the POC Act as to forfeiture of the restrained property of Mr Dickson. On that day, Bellew J declared that the relevant property had been forfeited to the Commonwealth at midnight on 19 May 2016.

Motions, submissions and hearing in Mr Dickson’s appeal against the decision of Adamson J on 6 May 2016

52. On 2 November 2016, the Commissioner filed a notice of motion seeking summary dismissal of Mr Dickson’s appeal against the decision of Adamson J on 6 May 2016 refusing to make an order under s 94 excluding certain property from forfeiture.

53. Mr Dickson filed an amended notice of appeal on 27 February 2017 and, by notice of motion filed in the appeal on 6 March 2017, he also sought a stay of the judgment of Adamson J, leave to adduce further evidence and leave to serve a notice to produce. In the amended notice of appeal of 27 February 2017, ground 17D was in the following terms:

“That legal counsel for [the Commissioner] committed serious fraud on the Court by making material dishonest submissions and representations to the Court relating to the essential elements of the original s. 18 of the POCA 2002 original applications.”

54. The orders sought in that amended notice of appeal included the following:

“10E. In the alternative, a declaration that the s. 18 of the POCA 2002 restraining orders covering [Mr Dickson’s] interests in property are void ab initio due to the [Commissioner’s] counsel’s serious fraud on the Court.”

55. Mr Dickson filed an outline of the appellant’s written submissions on 27 February 2017. That outline included approximately three pages under the heading “Fraud on the Court”. In those pages, Mr Dickson submitted that, among other things, in the context of s 18 of the POC Act it was particularly important that the Commissioner’s barristers and solicitors were honest and diligent (including disclosure of all relevant issues of law and fact affecting the application). It was also submitted that it was clear that the evidence available at the time of applying for the s 18 restraining orders was incapable of satisfying the elements of s 18. It was then contended:

“Counsel seriously, intentionally and dishonestly deceived the Court by representing the existence of all matters noted above [in relation to the elements of s 18], most importantly the existence of a suspicion of a tax loss/substantial risk of a tax loss to the Commonwealth. Counsel’s deliberate dishonesty amounts to fraud on the Court.

The consequence of Counsel’s fraud is that the s 18 restraining orders must be set aside as void ab initio and of the s 92 automatic forfeiture must be declared by the Court of Appeal to be void and entirely ineffective.” (Footnotes omitted)

56. On 15 June 2017, Mr Dickson forwarded to the Commissioner further submissions on the issue of “Fraud on the Court by the Commissioner of the AFP and his Counsel” consisting of 22 pages. Section III of this document purports to provide a precise outline of the alleged fraud and contained the following:

“The AFP police officers who swore the affidavits and a senior counsel who made verbal and written submissions to the Supreme Court were in a position to know and wilfully decided not to inform the Supreme Court [of various matters listed in paragraphs (a) to (v)]”

57. The matters listed in paragraphs (a) to (v) included:

1. matters of fact, such as “NHA had been subject to a comprehensive income tax audit for over two years by the [ATO] and the ATO had not notified NHA that it had any issue with any of the income tax treatments adopted by it in its income tax returns. …” (par (b));

2. submissions of law, such as “it is unconstitutional for the Supreme Court, as a Chapter III Court exercising federal jurisdiction to become involved in the Chapter II of the Constitution administration of the tax legislation which can only be undertaken by the Federal Commissioner of Taxation and the ATO. …” (par (g));

3. conclusions, such as “that all bank accounts controlled by [Mr Dickson] were opened and operated legally. And that all banks involved were major banks…” (par (n) and “there was no basis to allege that the ANZ trust monies were proceeds of crime because the ANZ trust money was tax-free.” (par (u)).

58. It was then submitted:

“the Commissioner’s officers and their counsel in the Supreme Court decided to deliberately deceive the Supreme Court with dishonest statements and deliberate material omissions. …”

59. In addition, in this same document, there was a section headed “Fraud on the Supreme Court by Abuse of Process” which contained, among other things, the following submission:

“Finally, it is contended that the fraud, dishonesty, deception, deceit, partiality of the Commissioner’s police officers and their legal counsel representing the Commissioner in the s 18 ex parte applications constitutes a grave abuse of process because it brings the Supreme Court processes into serious disrepute. …”

60. By his third amended notice of motion filed on 28 June 2017, the Commissioner sought summary dismissal of all of the grounds of appeal then raised.

61. On 29 July 2017, Mr Dickson provided reply submissions which included a further eight pages of submissions as to why there had been “Fraud on the Supreme Court”. At the outset, it is submitted that:

“the Commissioner’s Counsel committed fraud on the Court to obtain the s 18 restraining orders by:

(a)   deliberately omitting material facts from Counsel’s submissions to the Court.

(b) permitting the Commissioner’s police officers to mislead the Court in their s 18 affidavits knowing that they had omitted, or being reckless to whether they had omitted, material facts and then submitting to the Court that the affidavits supported the granting of the s 18 applications.

(c) representing to the Supreme Court that the affidavit contained all details sufficient to enable the Supreme Court to grant the s 18 restraining orders.”

62. The reply submissions then went on to provide details of the omissions from the affidavit of Mr Sandon, omissions from Mr Wills-Johnson’s statement of facts and submissions contained in counsel’s submissions, which are all said, in effect, to be materially dishonest and to have materially misled the Court. It was also submitted that counsel for the Commissioner should have made the submissions listed in paragraphs 1 to 20 on pages 9 and 10 of that document and counsel’s failure to do so constituted fraud by omission.

63. That motion came before the Court of Appeal for hearing on 1 August 2017. As Mr Dickson was self-represented, an amicus curiae was appointed to assist the Court. The Court reserved its decision on that day.

Mr Dickson’s motion for further consideration of his appeal by the Court of Criminal Appeal

64. By a notice of motion dated 20 November 2017 in the appeal against his conviction in the Court of Criminal Appeal, the plaintiff sought in effect to raise a further 30 grounds of appeal against conviction, and 13 grounds of appeal against the sentence originally imposed by the Court at first instance. Extensive submissions and an affidavit from Mr Dickson (which went principally to the issue of delay in seeking to bring further grounds of appeal) accompanied the motion. The matter was dealt with on the papers and, on 27 August 2018, the Court of Criminal Appeal dismissed the application on the basis that the court had no jurisdiction to deal with it: Dickson v R (No 2) [2018] NSWCCA 183.

Mr Dickson’s application for removal of the appeal against the decision of Adamson J on 6 May 2016 to the High Court

65. In late 2017 and before the Court of Appeal handed down judgment in his appeal against the orders of Adamson J on 6 August 2016, Mr Dickson sought, under section 40 of the Judiciary Act 1903 (Cth), removal of the appeal to the High Court in that it raised the constitutional arguments including whether the Supreme Court had jurisdiction to determine whether there was unpaid federal tax. This application was refused on 7 February 2018: Dickson v Commissioner of the Australian Federal Police [2018] HCASL 5.

The Court of Appeal’s judgment in the appeal against the orders of Adamson J on 6 May 2016

66. On 30 April 2018, the Court of Appeal handed down judgment in the appeal against the orders of Adamson J on 6 May 2016: AD v Commissioner of the Australian Federal Police (2018) 97 NSWLR 588; [2018] NSWCA 89. The following orders were made:

“(1) To the extent that it is required, grant leave to the appellant [Mr Dickson] to appeal pursuant to the Supreme Court Act 1970 (NSW), s 101(2).

(2) Appeal dismissed.

(3) Dismiss each of the appellant’s notices of motion filed on 6 March 2017 (stay application) and 6 March 2017 (leave to adduce further evidence).

(4) Set aside the appellant’s notice to produce filed on 27 March 2017.

(5) The appellant pay the Commissioner’s costs of the application for summary judgment, the costs of the appellant’s motions and all other costs associated with the appeal.”

67. In the judgment, Beazley P (Meagher and Gleeson JJA agreeing) identified and classified the grounds of appeal relied upon by Mr Dickson as follows, at [9]:

“9. The notice of appeal contains 17 grounds, each with a number of sub-grounds. For present purposes, those grounds of appeal can be grouped into three categories: first, grounds challenging her Honour’s findings that the appellant had not established the integers of s 94 necessary to entitle him to an exclusion order (grounds 1-17A); secondly, grounds challenging the constitutional validity of a number of provisions of the Proceeds of Crime Act, namely, ss 18, 26(4), 92, 95 and 338(a)(ii), (a)(iv) and (g) of the definition of “serious offence” (grounds 17B-17C); and thirdly, the ground in which the appellant contends that in obtaining restraining orders against his property pursuant to the Proceeds of Crime Act, s 18, counsel appearing on behalf of the Commissioner, committed a fraud on the court (ground 17D).”

68. In relation to the third issue whether there had been fraud in obtaining the restraining orders, Beazley P held at [113]-[114]:

“113. The substance of the appellant’s complaint that the orders made by the primary judge were obtained by fraud was that counsel and the solicitors for the Commissioner intentionally and dishonestly read affidavit evidence that they knew to be wrong. The relevant affidavit evidence explained the suspicions of an authorised officer for the Commissioner, in accordance with the requirements of the Proceeds of Crime Act, ss 18(1)(d)-(e) and (3). The appellant sought, by way of relief, a declaration that the restraining orders be declared void ab initio on the basis of fraud. This argument was not raised in the court below, nor had it previously been raised by the appellant.

114. I would not allow the appellant to raise this ground of appeal: see Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33. Not only was it raised “some five years” after the restraining orders were granted, it was not, as I have indicated, raised before the primary judge and there has been no opportunity for the Commissioner to respond. Further, it is a most serious allegation and the appellant has not advanced any cogent material in support of the allegation.”

Mr Dickson’s further application to the Court of Criminal Appeal

69. On 10 September 2018, Mr Dickson made an application to the Court of Criminal Appeal to have it set aside its judgment of 27 August 2018 and consequently re-open the appeal disposed of by its earlier judgment of 10 June 2016. This application was dealt with on the papers and was dismissed on 26 October 2018: Dickson v R (No 3) [2018] NSWCCA 242.

Mr Dickson’s current statement of claim

70. On 11 September 2018, Mr Dickson filed the statement of claim which is the subject of the present applications for strike out and dismissal.

Special leave application in relation to the Court of Criminal Appeal’s refusal to re-open the appeal against conviction

71. On 12 June 2019, the High Court refused special leave to appeal from the latter two decisions of the Court of Criminal Appeal: Dickson v The Queen [2019] HCASL 187.

Does the statement of claim filed on 11 September 2018 disclose a reasonable cause of action and are the proceedings an abuse of process?

72. I now turn to address the Commissioner’s application under UCPR r 14.28(1)(a) and (c) to strike out the statement of claim and to dismiss the proceedings under r 13.4(1)(b) and (c).

73. As explained above, both the Commissioner’s notice of motion and the application for leave to institute proceedings under the Felons Act effectively turn on whether the statement of claim discloses a reasonable cause of action and whether the proceedings are an abuse of process.

The Commissioner’s submissions

74. In relation to whether Mr Dickson had established that there was a “reasonable cause of action” entitling him to have the Court set aside its own perfected orders on the ground of fraud, the Commissioner relied upon the principles stated in Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12; 92 ALJR 399 (Clone) and Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (Wentworth v Rogers).

75. In particular, it was submitted that:

1. the matters pleaded in the statement of claim were not capable of amounting to actual fraud in the required sense of a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case. In addition, it was said that “fraud by omission” does not amount to actual fraud for this purpose;

2. the matters pleaded were not based on a new discovery of fresh material facts that provided a reason for setting aside the restraining orders and in any event, on being notified of the orders, Mr Dickson had the opportunity to see revocation of the restraining orders under s 42 of the POC Act, which he did not take up; and

3. the alleged fraud was not pleaded with clarity or precision and the allegations that evidence or submissions were “fraudulent”, “deceitful” or “materially dishonest” were not elaborated upon.

76. In these circumstances, it was submitted that Mr Dickson’s claim was so obviously untenable as to engage the Court’s power of summary dismissal. It was said that the deficiencies could not be cured by amendment or further particulars, because Mr Dickson’s claim inescapably involved re-litigation of the substance of the earlier proceedings rather than a concrete identification of any actual fraud.

77. In the alternative to dismissal of the proceedings under r 13.4, it was submitted that the statement of claim should be struck out under r 14.28 on the bases set out above and on the basis that it was not properly framed as a pleading of material facts but included content in the nature of argument, open-ended or rhetorical questions and irrelevant comments.

78. In relation to whether the proceedings were an abuse of process, the Commissioner submitted that the concept of “abuse of process” in rr 13.4 and 14.28, was broad and incapable of exhaustive definition but included re-litigation of matters that have already been determined, or which should have been determined, in prior proceedings, relying upon Rippon v Chilcotin (2001) 53 NSWLR 198 at [15], [28] [30]; [2001] NSWCA 142.

79. It was submitted that the issue of “fraud on the Court” affecting the restraining orders had been raised in the appeal from the decision of Adamson J on 6 May 2016. The submissions provided by Mr Dickson in the Court of Appeal in relation to that appeal identified the alleged fraud in terms that were “substantially identical” to the pleading of the alleged fraud in the statement of claim in the present proceedings. The Commissioner contended that the Court of Appeal had already determined that:

1. if Mr Dickson had wished to raise the allegation of fraud he should have done so at an earlier time, such as before Adamson J on the exclusion application; and

2. in any event, the allegations of fraud were not supported by any cogent material.

80. In all these circumstances and as the material filed in the present proceedings provided nothing further that could amount to cogent support for the allegations of fraud, it was said that the proceedings instituted by the statement of claim were an abuse of process. It was submitted that this was reinforced when regard was had to the applications for reopening subsequently brought in the Court of Appeal and for special leave to appeal to the High Court and the fact that these issues could have been raised in an application under s 42 of the POC Act to revoke the restraining orders.

81. In the Commissioner’s submissions in reply, in addition to seeking to rebut many of Mr Dickson’s submissions concerning matters referred to above and reiterating earlier submissions, the submission was made that Mr Dickson’s statement of claim ignored the fact that the property that was the subject of the restraining orders had been forfeited the Commonwealth. Thus, the property was no longer restrained and the restraining orders were no longer operative. It was implicit in this submission that the principal relief sought by Mr Dickson was inapposite and would not be granted.

Mr Dickson’s submissions

82. Mr Dickson’s submissions included written submissions filed on 11 September 2018, at the same time as the statement of claim in the present proceedings, as well as written submissions filed on 16 April 2019 responding to the Commissioner’s submissions.

83. In his 11 September 2018 submissions, Mr Dickson largely repeated, word for word, what he had submitted to the Court of Appeal in the written submissions provided on 15 June 2017, which have been referred to above. These submissions covered many matters not directly relevant to the present summary judgment and strike out application.

84. Most relevantly, these submissions included that the Commissioner and his legal counsel committed serious fraud on the Supreme Court in their applications for restraining orders under s 18 of the POC Act because the basis of both the alleged “serious offences” relied upon was “underpaid Australian income tax” and there was no evidence or circumstance to establish that there were reasonable grounds to suspect that Mr Dickson had “underpaid Australian income tax or foreign income tax”.

85. In this regard, Mr Dickson pointed to the absence of amended assessments issued by the ATO, the absence of a tax counsel’s opinion, the absence of an expert valuer’s opinion and the absence of a commercial lawyer’s opinion. These absences were said to establish that there was nothing to support a conclusion that there was unpaid tax. On this basis, it was contended that the case theory document which formed part of the statement of facts relied upon in the s 18 applications failed to demonstrate reasonable grounds to suspect underpaid income tax. It was then said that the Commissioner’s counsel had clearly submitted to the Court that there were reasonable grounds to suspect underpaid income tax. Consequently, the restraining orders were granted relying on the dishonest statements of the AFP policeman and the dishonest statements of counsel. These submissions, in a different form but to the same effect, were repeated later in the 11 September 2018 submissions.

86. It was then contended that the restraining orders under s 18 of the POC Act obtained by fraud in this way were invalid ab initio and, in addition, the subsequent s 92 automatic forfeitures, which were dependent upon the restraining orders, were also ineffectual.

87. Mr Dickson submitted that his not seeking revocation of the restraining orders under s 42 or exclusion of property from those orders under s 29 of the POC Act did not impact on the consequences of the Commissioner’s and his counsel’s fraud in obtaining the original s 18 restraining orders because of matters which can be adequately summarised for present purposes as follows:

1. the statement of claim pleaded that applications under ss 29, 31, 42 and 94 of the POC Act “were impossible” or they were otherwise inappropriate;

2. “it was impossible for [Mr Dickson] to prove that neither he, the NHA taxpayer company or another company or trust taxpayer associated with him had underpaid, or intended to underpay tax in Australia or anywhere in the world”; and

3. the Court had power to correct a fraud committed on the Court “by dissolving the s 18 restraining order”.

88. In relation to the ex parte applications for restraining orders, Mr Dickson also drew attention to the obligation of candour referred to in Thomas A Edison Limited v Bullock (1912) 15 CLR 679; [1912] HCA 72 and other authorities. In addition, his submissions also dealt with the nature of fraud and what was required in order for orders to be set aside:

1. on the ground of fraud;

2. under r 36.15 of the UCPR; and

3. on the ground of abuse of process.

89. Mr Dickson’s submissions included what were described as “Particulars of fraud” in par 74(a) to (v) but these were the same as the material in Section III of the submissions to the Court of Appeal provided on 15 June 2017.

90. The submissions also included specific identification of the basis upon which Mr Dickson contended that the AFP agents and the Commissioner’s counsel during the s 18 restraining order applications “knew that their representations were false” as follows:

“The [Commissioner] and their counsel knew that only the COT [Commissioner of taxation]/ATO could form an opinion that income tax was underpaid and that of the COT/ATO had not amended Mr Dickson’s] or NHA income tax assessments at the time of the s. 18 POCA ex parte applications. The [Commissioner] and their counsel did not tender a tax counsel opinion or a patent valuer’s opinion to prove their reasonable suspicion of underpaid income tax – an essential element of both “serious offences”. The AFP policeman and the [Commissioner] for NHA for 2007 to 2010 and [sic] had no way of demonstrating that even if certain deductions were wrongly claimed in certain years that would result in underpaid income tax – it is probable that a reduction in deductions would not lead to a tax liability because NHA had an abundance of allowable deductions. The [Commissioner] and their counsel knew that there was no basis to suggest that NHA a had underpaid income tax. Further, the [Commissioner] and their counsel deceived the Supreme Court in its s. 18 POCA ex parte applications by omitting to inform the Court that the COT/ATO had an issue with [Mr Dickson’s] or NHA’s income tax returns.”

91. Mr Dickson also submitted that in order to establish the requisite fraud it was sufficient that the representations were made recklessly not knowing whether the representations were true or not and recklessness was relied upon in the alternative to actual knowledge of falsity.

92. Mr Dickson’s submissions acknowledged that he had raised this question of fraud in the Court of Appeal but submitted:

“The Court of Appeal decided that fraud on the Court should be plead and particularised in a separate Statement of Claim and did not consider fraud on the court as being relevant to the argument that various provisions of the POCA were constitutionally invalid.”

93. He went on to submit in effect that procedural fairness or natural justice required the court to consider his “strongly argued submissions” in this regard and it was observed that neither the Supreme Court nor the Court of Appeal had considered the merits of his statement of claim relating to the alleged fraud on the Court by the Commissioner. Thus it was submitted that his statement of claim needed to be considered by the court in the interests of justice.

94. As to whether the restraining order should be declared to be void ab initio on the ground of abuse of process, Mr Dickson once again repeated word for word the submissions he had made to the Court of Appeal earlier. These submissions identified the abuse of process as “the fraud, dishonesty, deception, deceit, partiality of the Commissioner’s police officers and their legal counsel representing the Commissioner in the s 18 ex parte applications” because it brought the Court’s processes into disrepute.

95. In his reply submissions filed on 16 April 2019 Mr Dickson submitted that:

1. The Commissioner’s and his counsel’s duty of candour was “at the heart of [his] case of fraud on the court” and that the “central allegation of fraud” was “fraud by omission and non-disclosure” in the ex parte applications for restraining orders. If the Commissioner failed “to fulfil his duty of candour, perhaps by, wilfully shutting his eyes to relevant material circumstances and not disclosing those circumstances, the s. 18 POCA restraining order will be declared void ab initio.” The obligation to make full disclosure extended to counsel and “[i]n the case at hand senior counsel have deliberately been dishonest and mislead the court.” The five matters not disclosed were identified as follows:

1. “that the Supreme Court does not have jurisdiction to determine whether there are reasonable grounds to suspect that income tax had been underpaid”;

2. “the gravamen of the two specified ‘serious offences’ which form the basis of the s. 18 POCA restraining orders” and it was said to be dishonest that the Commissioner indicated that the tax fraud offence “merely required reasonable grounds to suspect that one or more patent depreciation deductions were wrongly/dishonestly claimed in the Neumedix company’s income tax returns”;

3. “the basis on which [the Commissioner and his representatives] were required to form the reasonable grounds to suspect income tax was underpaid”;

4. “how they formed their reasonable grounds to suspect that income tax had been underpaid or how the receipt of ‘tax-free’ money from the ANZ trusts resulted in a tax liability”;

5. “material circumstances known to them, or which should have been known to them if they did not ‘wilfully shut their eyes’, which rebuffed the existence of [the Commissioner’s] sworn/affirmed reasonable grounds to suspect that income tax was underpaid”.

2. The present proceedings were not an abuse of process because the merits of the fraud case had not previously been determined and could not have been agitated in an application under s 42 of the POC Act because such an application was impossible:

1. given that Mr Dickson bore the onus of proof;

2. submissions to the Supreme Court, “which were dishonest”, were not provided to Mr Dickson until June 2017;

3. more than 30,000 pages of documents seized had not been provided to Mr Dickson;

4. the 28 day limit was so restrictive that he did not have time to consider the possibility of using the provision; and

5. all of his money and property was restrained so that he was financially paralysed and could not afford legal advice.

96. Mr Dickson’s oral submissions largely covered matters found in his written submissions. In addition, Mr Dickson:

1. referred to proceedings before Bellew J in 2012 apparently concerning an application to examine Mr Dickson and the effect of the High Court’s decision in Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 but nothing appears to turn on this;

2. submitted that requirements of s 42 of the POC Act were so restrictive as to make it impossible for any applicant charged with tax fraud offences to successfully revoke a s 18 restraining order;

3. submitted that the conduct of AFP officers during the course of his trial was “consistent with demonstrating fraud in the Court with a section 18 restraining orders”; and

4. noted that he had not yet exhausted his rights of appeal, making reference to two special leave applications. Since the date of hearing, the High Court has refused to grant special leave: Dickson v The Queen [2019] HCASL 187.

Relevant statutory provisions and principles

97. UCPR r 13.4 empowers the Court to dismiss proceedings in certain circumstances without conducting a substantive hearing on the merits. The rule relevantly provides:

“13.4 Frivolous and vexatious proceedings 

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

…

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

98. Similarly, UCPR r 14.28 confers on the Court a discretion to strike out a pleading in circumstances akin to those in r 13.4(1)(b) and (c). Rule 14.28 relevantly states:

“14.28 Circumstances in which court may strike out pleadings 

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

…

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

99. It was not in dispute that the Court should approach the Commissioner’s application in accordance with the well-established principles which have been summarised by the High Court in cases such as Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 (Spencer), General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130 (Barwick CJ); [1964] HCA 69 and Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 (Dixon J); [1949] HCA 1. In Spencer, French CJ and Gummow J said at [24]:

“The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action … or on the basis that the action is frivolous or vexatious or an abuse of process …. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said [(1983) 154 CLR 87 at 99; [1983] HCA 25]:

"The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".

More recently, in Batistatos v Roads and Traffic Authority (NSW) [(2006) 226 CLR 256 at 275 [46]; [2006] HCA 27] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde [(2000) 201 CLR 552 at 575-576 [57]; [2000] HCA 41] which included the following:

"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways …, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."”

100. In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71, Macfarlan JA (Beazley P agreeing) noted that Spencer had concerned the application of s 31A(2) of the Federal Court Act 1976 (Cth), which is in somewhat different terms from rr 13.4 and 14.28 of the UCPR, but observed that the following principles derived from that case are of general application (at [3]):

“(a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded.

(b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward. Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success.

(c) Powers to summarily terminate proceedings must be exercised with exceptional caution.” (References omitted)

101. The principles can be adequately encapsulated in the proposition that, before proceedings can be summarily dismissed under a provision such as UCPR r 13.4(1)(b) on the ground that no reasonable cause of action is disclosed, the Court must have formed a certain and concluded determination that the proceedings would necessarily fail: Spencer at [59] (Hayne, Crennan, Kiefel and Bell JJ); Ke Qin Ren v Hong Jiang [2014] NSWCA 388 at [49] (Barrett, Gleeson and Leeming JJA).

1. Mr Sandon held the suspicion or suspicions stated in the affidavit on reasonable grounds; and

2. there were reasonable grounds to suspect that Mr Dickson had committed the serious offences the subject of Mr Sandon’s suspicion.

170. The offences relied upon in the present case were both conspiracy offences. From their very nature, it was not necessary for the Court or Mr Dickson to be satisfied that there were reasonable grounds to suspect that income tax was underpaid before it could be concluded that the requirements in s 18(1)(d) and (f) had been satisfied.

171. Furthermore, there is no basis to conclude that Mr Sandon, Mr Wills-Johnson or counsel were aware of these five matters and deliberately withheld them from the Court as part of a meditated and intentional contrivance to keep the Court in ignorance of the real facts of the case.

172. Thus, even if Mr Dickson were permitted to amend his pleading to allege that the five matters which he said had not been disclosed on the s 18 ex parte applications established that the restraining orders had been obtained by fraud, such a case would be bound to fail for at least two reasons. First, failure to disclose those matters would not amount to “actual fraud”, as explained in Clone. Secondly, those five matters were not matters required to be established before the Court could make restraining orders under s 18 in this matter.

173. Lastly, it is necessary to consider the relief sought other than the declarations that the restraining orders of 5 and 26 April 2012 were void ab initio. The other relief was limited to the exemplary damages claimed in prayer 4 in the statement of claim. The pleading in relation to this claim for relief was as follows:

“SECTION XII: EXEMPLARY DAMAGES – THE SUPREME COURT SHOULD EXPLICITLY DISAPPROVE THE DEFENDANT’S BEHAVIOUR

95. The Supreme Court should clearly communicate to the premier law enforcement agency in Australia, the Australian Federal Police, and their senior counsel representatives (Sullivan SC [sic] and Cheeseman SC) that their fraud on the Supreme Court is reprehensible and cannot be condoned.”

174. It is apparent that Mr Dickson relies on the alleged fraud previously pleaded in support of the claims for declarations that the restraining orders were void ab initio.

175. The parties’ submissions did not deal separately with this claim for relief and the proceedings were conducted on the basis that the claim for exemplary damages did not add any dimension to the parties’ applications that required separate determination.

176. For the reasons already given, the claims based on the fraud alleged by Mr Dickson are bound to fail and the deficiencies cannot be cured by amendment. Accordingly, the claim for exemplary damages is also bound to fail. To this extent, the proceedings should be dismissed as failing to disclose a reasonable cause of action and as an abuse of process. Leave to institute proceedings under s 4 of the Felons Act should be refused.

177. There is, however, another basis upon which this aspect of Mr Dickson’s proceedings should be found not to disclose a reasonable cause of action and to be an abuse of process. The parties did not raise this issue and it is not necessary to decide the present applications on this basis. Nonetheless, it should be mentioned for the sake of completeness.

178. The alleged fraud, upon which the claim for exemplary damages was founded, was said, at par 38 of the statement of claim, to be constituted by a witness for the Commissioner making dishonest statements in his affidavits and omitting material facts and the Commissioner’s counsel deliberately omitting material facts from submissions, permitting witnesses to mislead the court and representing to the court that the affidavit contained all detail sufficient to enable the court to grant the s 18 restraining orders.

179. It is a well-established principle that no action, such as an action for damages, lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts: Cabassi v Vila (1940) 64 CLR 130 at 140-141 (Starke J); [1940] HCA 41. This proposition was recently confirmed by the High Court in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 (“D'Orta-Ekenaike”), when Gleeson CJ, Gummow, Hayne And Heydon JJ held at [39]:

“From as early as the sixteenth century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit.” (footnotes omitted)

180. As these authorities make clear, the immunity extends not only to witnesses but also to counsel appearing in proceedings and to parties. In D'Orta-Ekenaike at [42], the High Court quoted a dictum of Lord Mansfield in 1772 and said:

“In R v Skinner [(1772) Lofft 54 at 56 [98 ER 529 at 530]], Lord Mansfield said that "neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office". Of that immunity it has been said in Mann v O'Neill [(1997) 191 CLR 204 at 239 per Gummow J] that it responds to two related considerations, "to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences" and "the avoidance of the re‑agitation by discontented parties of decided cases after the entry of final judgment" other than by appellate processes. That view of the matter reflects the consideration that what is at stake is the public interest in "the effective performance" of its function by the judicial branch of government [cf Gibbons v Duffell (1932) 47 CLR 520 at 528 per Gavan Duffy CJ, Rich and Dixon JJ].”

181. The Commissioner has not yet been required to file a defence. As a result, he has not had the opportunity of pleading the immunity. It cannot seriously be disputed, however, given the nature of the Commissioner’s application presently before the Court and his submissions, that the Commissioner would plead the immunity if the opportunity arose. Raising the immunity as a defence has the consequence that Mr Dickson’s claim for damages could not succeed.

182. Accordingly, if the immunity were pleaded, Mr Dickson’s proceedings would necessarily fail in respect of the claim for exemplary damages. This would provide a further basis for the proceedings relating to the claim for exemplary damages to be summarily dismissed under UCPR r 13.4(1) and for leave to institute the proceedings under s 4 of the Felons Act to be refused in respect of the claim for exemplary damages.

Conclusions

183. For all of these reasons, leave to institute the proceedings should be refused and, to the extent that the proceedings are on foot in that they have been the subject of the dismissal and strike out applications, the proceedings should be dismissed.

184. In these circumstances, Mr Dickson’s application for summary judgment cannot succeed and should be dismissed.

185. There is no evident reason why costs should not follow the event, as sought by the Commissioner, on all applications.

Orders

186. The orders of the Court are:

1. The plaintiff’s application for leave to institute the proceedings under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) is refused.

2. To the extent necessary, the proceedings are dismissed under r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).

3. The plaintiff’s notice of motion filed on 28 January 2019 is dismissed.

4. The plaintiff is to pay the defendant’s costs of the proceedings, as agreed or assessed.

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Decision last updated: 26 September 2019