Ex parte - [2014] NSWSC 130

Supreme Court

New South Wales

Medium Neutral Citation: Ex parte application of Commissioner of the Australian Federal Police [2014] NSWSC 130
Hearing dates: 11 February 2014
Decision date: 11 February 2014
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Pursuant to s 26(5) of the Proceeds of Crime Act 2002 (Cth), the Commissioner of the Australian Federal Police is directed to give notice of the current application to the specified person, Ken Khanh Phong Ha, by electronically serving a copy of the application and all affidavits filed in court on the following address: Mr Paul Hardin, solicitor, at Hardinlaw, Sydney within two days of today's date.
(2) Pursuant to the same section, the Commissioner of the Australian Federal Police is directed to take all reasonably practical steps to give notice of the application to a specified person, namely, Ms Fei Mu.
(3) The matter is stood over for hearing on Tuesday 25 February 2014.
(4) The matter is to be initially in the Registrar's list.
(5) The matter is not to be regarded as part heard before me.

Catchwords: PROCEDURE - civil - interlocutory issues - application for restraining order and ancillary orders - brought ex parte - appropriateness of proceeding ex parte - no danger of dispersal of funds sought to be restrained - giving of notice to possible interested persons as an alternative to proceeding ex parte
Legislation Cited: Criminal Code Act 1995 (Cth), s 400.4
Proceeds of Crime Act 2002 (Cth), ss 19, 26, 338
Cases Cited: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 84 ALJR 31
Lee v NSW Crime Commission [2013] HCA 39
X7 v Australian Crime Commission [2013] HCA 29
Category: Principal judgment
Parties: Ken Khanh Phong Ha
Fei Mu
Commissioner of the Australian Federal Police
Representation: Counsel:
Solicitors:
Ms A Jessep (Plaintiff)

File Number(s): 2014/22234

EX TEMPORE Judgment

HIS HONOUR: In this matter the plaintiff, who is the Commissioner of the Australian Federal Police, moves upon a summons that was filed in this Court on 23 January 2014. That summons seeks, in effect, six orders, but today order 5 is not sought and nor is order 6 (for costs) pressed today.

In a nutshell what is sought is, first, a restraining order with regard to a very large amount of cash that was seized by the police by way of a search warrant.

Secondly, a custody and control order that would simply permit that cash to be deposited in a place of security where it could earn interest.

Thirdly and fourthly, examination orders against a Mr Ha and a lady who is known by two names, it seems, and to whom I shall refer as Ms Mu.

The application has been brought ex parte, which is not unusual, in particular with regard to restraining orders.

The chronological background of the matter can be succinctly summarised as follows, and I draw this summary from two affidavits of Michael Brian McNiven and also the very helpful…

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: [2014] NSWSC 130
Decision Date: 11 February 2014

CaseChat Overview and Summary

The case involved an application for a restraining order and ancillary orders, brought ex parte. The applicant sought to restrain the disposal of funds held by a bank on behalf of the respondent. The application was made to the Supreme Court of Victoria. The dispute centred on the appropriateness of proceeding with the application without notice to the respondent, considering the potential consequences of such action.

The court considered whether it was appropriate to proceed ex parte, given the absence of any immediate danger of the funds being dispersed. It was acknowledged that ex parte applications should generally be avoided unless there are exceptional circumstances. The court also considered whether giving notice to the respondent or other interested parties could be a viable alternative to proceeding without notice.

The court concluded that proceeding without notice was not appropriate in this case. It was determined that there was no immediate risk of the funds being dispersed, and therefore, there was no pressing need to act without giving the respondent an opportunity to be heard. The court emphasised the importance of considering the interests of all parties involved and the potential impact of an ex parte order. The application was ultimately dismissed, with the court suggesting that notice should be given to the respondent as an alternative to proceeding ex parte.

The court's decision highlighted the importance of balancing the need for urgent action with the right of all parties to be heard. The final orders of the court included the dismissal of the ex parte application and a direction for the applicant to provide notice to the respondent before seeking any further orders.

Orders