Ex parte

[2024] NSWSC 1001

Supreme Court

New South Wales

Medium Neutral Citation:

Ex parte application of Commissioner of the Australian Federal Police [2024] NSWSC 1001

Hearing dates:

19 April 2024

Date of orders:

19 April 2024

Decision date:

19 April 2024

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

See orders at [10]

Catchwords:

CIVIL LAW – proceeds of crime – ex parte application for restraining orders – where defendant gave false evidence on examination – no question of principle

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Proceeds of Crime Act 2002 (Cth), ss 18, 38, 197A, 338

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

Commissioner of the Australian Federal Police (Plaintiff)

Representation:

Solicitor for the Australian Federal Police (Plaintiff)

File Number(s):

2022/190669

Publication restriction:

Non-publication order until 17 May 2024.

EX TEMPORE JUDGMENT (REVISED)

1. Filed in court this morning on behalf of the Commissioner of the Australian Federal Police was a notice of motion seeking a number of orders pursuant to the Proceeds of Crime Act 2002 (Cth) (“the Act”) as well as orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) and by reference in some instances to the Uniform Civil Procedure Rules 2005 (NSW). The matter has a history and read on the application and in support of the notice of motion were two affidavits. One, an affidavit of Michael O’Rourke whose affidavit, as I follow it, was used in previous proceedings under the same Act as well as an affidavit of Marisa Vitagliano sworn on 18 April 2024 which exhibited a number of relevant documents.

2. The history of the matter, and I will be brief in providing this, is set out in those affidavits but essentially some time back there was an investigation into the defendant, Tony Nguyen, and his mother in circumstances where suspicions attached to a number of financial transactions and search warrants were issued at certain properties. Against what was said to be a daily cleaning income of $60 cash on the part of his mother and a declared income of approximately $130,000, the authorities uncovered movements of money and deposits and withdrawals in sums approaching – and I am being approximate here – or indeed exceeding $5 million. In the course of a search of the premises there was $2.5 million, again in approximate terms, seized. Following upon that Mr Nguyen was subject to orders under the Act and was charged and ultimately on 23 June 2023 --

TULLY: That was Ms Nguyen, the mother.

HIS HONOUR: Right.

TULLY: Mr Nguyen has not been charged.

-- convicted of money laundering offences.

3. Pursuant to the provisions of the Act there was an examination order and part of the exhibits to Ms Vitagliano’s affidavit is the transcript or what purports to be a transcript of that examination. In the course of that, and at an early stage, counsel in appearing for Mr Nguyen, who I should say is currently the first defendant in the present application and proceedings, produced an original passport in the name of Tony Nguyen. Mr Nguyen was asked a very clear and specific question, namely, “Are you known by any other name?”, to which he replied “No”, and then went on to say, “All my friends know me as Tony Nguyen”. He was asked to speak up and he repeated that answer, “No. All my – everyone knows me as Tony Nguyen”.

4. On the evidence before the Court this morning, and noting I am only hearing one side of the case because it is being heard ex parte for I think obvious reasons, that evidence was false. Mr Nguyen was also asked whether he owned any property in Australia outside of New South Wales. There was some toing and froing between the lawyers and ultimately, based on the way that question was there defined, Mr Nguyen answered “No”. Again, based on the one side of the material that I have seen, that answer was also false because there is indeed some real estate owned by the first defendant in Victoria. The answer in relation to his name was false because in February 2019 he had officially changed his name to Do, that is, Viet Truong Do.

5. The provision of false answers and misleading evidence in an examination of that kind is an offence pursuant to s 197A of the Act. It is an offence that carries five years imprisonment and by the definition of serious offence, in particular, paragraph (ga) of that definition in s 338, it is caught by the relevant provision. The result is that the jurisdiction of this Court to make orders under, inter alia, s 18 of the Act is enlivened.

6. There are some formal requirements in the Act including the provision of affidavit evidence and that has been satisfied. As I see the material and read the section, all of the formal prerequisites are satisfied and accordingly it is appropriate to, if not mandatory that, I make orders pursuant to s 18 restraining the property in Victoria to which I have made brief reference.

7. In addition to that, the Commissioner seeks orders of an ancillary nature and orders placing the custody and control of the aforementioned property in the hands of the Official Trustee in Bankruptcy. That is an order under s 38 and custody and control orders under the same section. The ancillary orders are set out in what is order 14 of the short minutes of order provided and there are some carve outs, if I can put it that way, relating to the activities of a third-party mortgagee being the Westpac Banking Corporation trading as the Bank of Melbourne.

8. Whilst I said it was obvious, I should also say that the Court was closed and non-publication orders have been and will be made and the matter was dealt with ex parte for the simple reason that a failure to undertake the hearing in that way ran the very significant risk of thwarting the very purpose of the proceedings. That is, there may have been an attempt to move, for want of a better word, the property, thus thwarting the attempts by the Commissioner to obtain the restraining orders or for those restraining orders to have any effect. It was for that reason that I made the order that the Court be closed and that the matter be heard in Mr Nguyen or Mr Do’s absence, as well as the absence of any other person who might have an interest in the matter or an inclination to advise them what is happening.

9. The relevant property is set out in schedules one and two and the orders are set out in short minutes of order which have been provided to the Court and which reflect the orders sought in the notice of motion. Unless there is anything else I need to say I propose to make those orders --

TULLY: Your Honour, I would just like to note that the Commissioner makes the usual undertaking as to costs and damages in proceedings of this nature in relation to the property under the orders made today and also note for the court’s reference that the orders made in December 2023 forfeiting one item of real property to the Commonwealth which was signed by Mr Nguyen, he provided an undertaking to the court not to make any claims or applications in the proceedings. The Commissioner releases Mr Nguyen from that undertaking in relation to the property, the subject of this application, and we have included a notation in the Short Minutes to that effect.

HIS HONOUR: All right. I should also say that there will be no publication of this judgment in any form other than to the Commissioner and, where necessary, onto the bank.

TULLY: Thank you.

HIS HONOUR: Until 17 May 2024 unless some further order is made extending the delayed notification of the orders and in the revised version of the judgment which will ultimately be published I will include the interchange with Mrs Tully in the final version of the judgment, the undertakings and release thereof will be noted within the judgment.

10. For the reasons above, I made the following orders on 19 April 2024, as outlined in a short minutes of order document dated 19 April 2024 handed up to me:
    “Upon the Plaintiff providing, on behalf of the Commonwealth, the usual undertaking as to costs and damages in relation to the property, the subject of these orders, the court orders that:
     

Preliminary Orders

1. Pursuant to rule 6.15 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the Notice of Motion dated 19 April 2024 (Motion) be made returnable immediately.

2. Pursuant to s 26(4) of the Proceeds of Crime Act 2002 (Cth)(Act) and UCPR 18.2(2), the application for relief in prayers 1 to 16 of the Motion be heard and determined without notice.

3. Pursuant to section 319A of the Act and sections 71(a) and (b) of the Civil Procedure Act 2005 (NSW) (CPA), the application for relief set out in prayers 1 to 16 of the Motion be heard in closed court and in the absence of the public.
    

Suppression Orders

4. Pursuant to sections 7 and 8 of the Suppression and Non-publication Orders Act 2010 (NSW) and section 28A of the Act, publication or other disclosure of the following documents:

1. the Motion;

2. Affidavit of Marisa Vitagliano sworn 18 April 2024;

3. any submissions filed in these proceedings;

4. transcript of these proceedings; and

5. any orders made in these proceedings,

   is prohibited by any entity other than the Plaintiff (or any person acting on the Plaintiff’s behalf) until the earlier of the following:

1. 17 May 2024; or

2. Further order of this court.

5. The grounds for an order in accordance with order 4 are that it is:

1. necessary to prevent prejudice to the proper administration of justice; and

2. necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

6. Any orders made in accordance with order 4 does not apply to the Government of Victoria, including its employees acting in accordance with their duties in respect of the registration on title of any restraining orders made in the proceedings.

7. An order in accordance with order 4 is to apply throughout the Commonwealth of Australia.

Delayed notification and service

8. Pursuant to sections 33(3)(b) and 39(1) of the Act, the Commissioner may delay giving notice of the applications for orders under the Act contained in the Motion (and the documents included with the notice) to the Defendants until 17 May 2024.

Section 18 Restraining Orders - Viet Truong Do (aka Tony Nguyen)

9. Pursuant to s 18(2)(a) of the Act, the property specified in Schedule One, being property of Viet Truong Do (aka Tony Nguyen), must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

10. Pursuant to s 18(2)(a) of the Act, the property specified in Schedule Two, being property of Viet Truong Do (aka Tony Nguyen), must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

11. Pursuant to s 18(2)(b) of the Act, all property of Viet Truong Do (aka Tony Nguyen), other than the property specified in Schedules One and Two, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

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. Pursuant to section 38 of the Act, the Official Trustee is to take custody and control of the property specified in Schedule Two.

Ancillary Orders

14. 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):

1. gain access to and inspect the Controlled Real Property with 48 hours’ notice;

2. secure the Controlled Real Property;

3. insure any building on the Controlled Real Property as and when required;

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

5. collect any rent monies payable in connection with the Controlled Real Property; and

6. 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.

Third Party Mortgagee

15. Pursuant to s 39(1) of the Act prayer 9 above is varied as follows:

1. the interest of Westpac Banking Corporation (Westpac) as registered mortgagee of the property specified in Schedule One is not restrained;

2. Westpac may deal with its interest as registered mortgagee in accordance with the terms of the registered mortgage [REDACTED];

3. Westpac is to notify the plaintiff, in writing, prior to taking any steps to enter into possession or dispose of the property specified in Schedule One in accordance with its registered mortgage [REDACTED].

16. In the event the property specified in Schedule One is sold by Westpac in accordance with order 15 above:

1. pursuant to s 39(1) of the Act, order 9 is varied to restrain the ‘net proceeds of sale’ of the property specified in Schedule One; and

2. pursuant to s 38 of the Act, the Official Trustee is to take custody and control of the ‘net proceeds of sale’ of the property specified in Schedule One.

Other Orders

17. These orders be entered forthwith.

THE COURT NOTES THAT:

18. The plaintiff releases Tony Nguyen (aka Viet Truong Do) from the undertaking provided to the court on 15 December 2023, only in relation to the property specified in Schedules One and Two of these orders.

SCHEDULE ONE

1. Real property located at [REDACTED], together with any income generated by the property.

SCHEDULE TWO

1. Choses in action enforceable against Westpac Banking Corporation Limited in respect of the following account numbers in the name of Viet Truong Do:

1. [REDACTED];

2. [REDACTED];

3. [REDACTED].

2. Choses in action enforceable against St George Bank in respect of the following account numbers in the name of Viet Truong Do:

1. [REDACTED];

2. [REDACTED];

3. [REDACTED];

4. [REDACTED];

5. [REDACTED];

6. [REDACTED];

7. [REDACTED];

8. [REDACTED].

3. Choses in action enforceable against National Australia Bank in respect of the following account numbers in the name of Viet Truong Do:

1. [REDACTED];

2. [REDACTED];

3. [REDACTED].

4. Choses in action enforceable against Great Southern Bank in respect of the following account numbers in the name of Viet Truong Do:

1. [REDACTED];

2. [REDACTED];

3. [REDACTED].

5. Choses in action enforceable against Adelaide Bendigo Bank in respect of the following account numbers in the name of Viet Truong Do:

1. [REDACTED];

2. [REDACTED].

6. Choses in action enforceable against Australia and New Zealand Bank in respect of the following account numbers in the name of Viet Truong Do:

1. [REDACTED];

2. [REDACTED];

3. [REDACTED];

4. [REDACTED];

5. [REDACTED];

6. [REDACTED];

7. [REDACTED];

8. [REDACTED];

9. [REDACTED].”

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Decision last updated: 14 October 2024