Ex Parte - [2025] WADC 79

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   EX PARTE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE [2025] WADC 79
CORAM:   STAUDE DCJ
HEARD:   22 OCTOBER 2025
DELIVERED          :   22 OCTOBER 2025
PUBLISHED           :   3 NOVEMBER 2025
FILE NO/S:   POC 2 of 2025
MATTER: In the matter of an application pursuant to s 18 of the Proceeds of Crime Act 2002

EX PARTE
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant

Catchwords:

Proceeds of crime - Ex parte application for restraining order pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth) - Property suspected to be under effective control of person suspected of committing serious offence - Turns on own facts

Legislation:

Criminal Code (Cth)
Proceeds of Crime Act 2002 (Cth)

Result:

Application for restraining order granted

Representation:

Counsel:

Applicant

Mr B McGowan

Solicitors:

Applicant

Australian Federal Police, Proceeds Of Crime Litigation

Case(s) referred to in decision(s):

The Commissioner of the Australian Federal Police v Memon (No 4) [2025] NSWSC 967

STAUDE DCJ:

[This decision was delivered extemporaneously on 22 October and edited from the transcript.]

By originating summons dated 17 October 2025, the applicant seeks a restraining order pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth) (Act), to prevent any person from disposing of or otherwise dealing with real property located at 34 Cooks Avenue, Canterbury, New South Wales, being the whole of the land comprised in certificate of title folio identifier 23/9484.
I am informed by the affidavit of Philip Kimbell, sworn 20 October 2025, and assisted by the outline of submissions dated 22 October 2025, to which counsel, Mr McGowan, spoke at the hearing this morning. I am satisfied that the court has 'proceeds jurisdiction' for the purposes of s 18(1) of the Act.
I am satisfied that the applicant has the requisite authority to apply for a restraining order, being a 'proceeds of crime authority' as defined in s 338 of the Act. I am satisfied that Mr Kimbell is duly authorised.
The applicant has requested that the application be heard ex parte. The applicant has furnished an undertaking as to damages in terms that the Commonwealth of Australia will abide any order of the court as to damages sustained by any person who has an interest in the property, the subject of the restraining order to be made, and who is not in any way involved in the alleged offending.
Section 26(1) of the Act provides that written notice of an application for a restraining order covering property be given to the owner, subject to s 26(4), which provides that the court must consider the application without notice having been given if the responsible authority requests the court to do so. I am satisfied that it is appropriate to hear and determine the application ex parte and without notice to the owner or any other person having an interest in the property.
The application has been heard on an urgent basis as the six‑month period following the conviction of Simon Cahill (described in the originating process as the respondent) of a serious offence, at the expiration of which property subject to a restraining order is forfeited, expires on 24 October 2025. That period commenced when Mr Cahill was sentenced to a term of six years' imprisonment by this court on 24 April 2025.
Relevantly, a serious offence is an indictable offence punishable by three years' imprisonment or more and relating to narcotics or unlawful conduct relating to a breach of pt 9.1 of the Criminal Code (Cth).
I am unable to find that there has been any undue delay in the prosecution of the application, having regard to the nature and extent of the investigations required to be undertaken since the conviction date as deposed to by Mr Kimbell.
Section 92 of the Act provides that property the subject of a restraining order is forfeited to the Commonwealth at the end of a six‑month period starting on the conviction day if the person is convicted of a serious offence.
I am satisfied that there are reasonable grounds to suspect that Mr Cahill has committed a serious offence by reason of him having been convicted of one count of attempting to possess a border‑controlled substance, to wit, cocaine, contrary to s 307.5(1) of the Criminal Code.
I am satisfied that the affidavit requirements of s 18(3) have been satisfied. These are: that the deponent is an authorised officer; that the deponent suspects that the suspect - in this case, Mr Cahill - committed the offence; and that if the application is to restrain property of a person other than the suspect, the authorised officer suspects that the property is subject to the effective control of the suspect.
I am also satisfied that the authorised officer, Mr Kimbell, holds the suspicions deposed to in his affidavit on reasonable grounds.
The court must make a restraining order if the requirements set out in s 18 are satisfied, even if there is no risk of the property being disposed of or otherwise dealt with.
For the purpose of s 92, an interest in relation to property is defined by s 338 as a legal or equitable interest or estate, or a right, power, or privilege in connection with the property, whether present or future, and whether vested or contingent.
The application is sought on the basis that the property is subject to the effective control of Mr Cahill. Section 337 provides that property may be subject to the effective control of a person, whether or not that person has a legal or equitable estate or interest in the property, or a right, power, or privilege in connection with the property. Property that is held on trust for the ultimate benefit of the person is taken to be under the effective control of the person.
Section 337(5) provides that the court, in determining whether or not the property is subject to effective control, may have regard to, among other things, 'Family, domestic, and business relationships between persons having an interest in the property'. Section 337(7) provides that effective control may be exercised by more than one person.
The registered proprietor of the property is Mariam Khalil. Australia and New Zealand Banking Group Ltd (ANZ) is a registered mortgagee. Ms Khalil is believed to be the spouse of Mr Cahill. That belief is based on the transactional history of the property, as deposed to by Mr Kimbell, and bank statements and Australian Taxation Office (ATO) documents that have been annexed to his affidavit.
Mr Kimbell deposes to his belief that Mr Cahill has effective control of the property and otherwise has a right, power, or privilege in connection with the property. I find that the basis for Mr Kimbell's belief is reasonable. The basis for Mr Kimbell's belief is that the property was acquired by Mr Cahill and Ms Khalil as joint tenants in 2004 for $730,000. Mr Cahill and Ms Khalil borrowed $335,000 against the property from the Commonwealth Bank of Australia in 2005.
On 1 July 2017, Mr Cahill and Ms Khalil owed $166,989 to the Commonwealth Bank of Australia. Between that date and 19 October 2019, the loan was paid off by payments that averaged $8,000 per month. According to the ATO records annexed to Mr Kimbell's affidavit, from 2016 to 2020 Mr Cahill received a disability support pension of $20,000 - $22,400 per annum. Over the same period of five years, Ms Khalil declared taxable incomes in the range of $58,902 - $70,035.
Mr Cahill was arrested on or about 8 July 2022 for the subject offence. On 15 May 2023, Mr Cahill transferred his interest in property to Ms Khalil, apparently for no monetary consideration. Mr Kimbell deposes to his suspicion that Mr Cahill committed the subject offence on the basis of his conviction and a signed statement of material facts signed by him upon which he was sentenced.
Mr Kimbell deposes to the grounds for his suspicion that Mr Cahill has effective control of the property on the basis that he had an interest in it as a registered proprietor from 2004 to 2023; that he transferred his interest in the property to Ms Khalil in 2023 after having been charged with the subject offence; and that there is no apparent reason for doing so other than to distance himself from the property to avoid, as I understand the applicant's position, the consequences of his conviction.
It follows from my being satisfied of these matters that the restraining order must be made. The hearing having been conducted ex parte, counsel has addressed the issue of prejudice. Counsel has observed that if the restraining order sought by the applicant is made, then the property will be forfeited to the Commonwealth on 24 October 2025 pursuant to s 92.
Counsel has also observed that the forfeiture will occur before Mr Cahill, Ms Khalil, and ANZ become aware of the application, as they would otherwise be pursuant to s 92A, which requires the applicant to give written notice of the date on which the property would be forfeited, and other information regarding potential relief from forfeiture.
The court has been referred to the The Commissioner of the Australian Federal Police v Memon (No 4) [2025] NSWSC 967, a decision of Schmidt AJ. Her Honour found in that case that automatic forfeiture occurred six months after the relevant conviction day irrespective of whether or not a person who has an interest in the property had been given a s 92A notice before the forfeiture took effect. I see no reason to disagree with her Honour's construction of the relevant provisions in this respect.
Counsel has observed that there is a procedure for extending the period after which automatic forfeiture would occur by an application for extension under s 93, which can be made by Mr Cahill or another person with an interest in the property.
The applicant submits that the prejudice occasioned by the forfeiture occurring without notice is mitigated by the provisions of pt 2-3 div 3 of the Act that provide interested parties with various forms of relief from a forfeiture order made under s 92. Specifically, s 102 provides:
If property is forfeited to the Commonwealth under section 92, the court that made the restraining order referred to in paragraph 92(1)(b) must, if:
(a)a person who claims an interest in the property applies under section 104 for an order under this section; and
(b)the court is satisfied that:
(i)the applicant had an interest in the property before the forfeiture of the property; and
(ii)the applicant's interest in the property is neither proceeds of unlawful activity nor an instrument of unlawful activity; and
(iii)the applicant's interest in the property was lawfully acquired;
make an order:
(c)declaring the nature, extent and value of the applicant's interest in the property; and
(d)either:
(i)if the interest is still vested in the Commonwealth - directing the Commonwealth to transfer the interest to the applicant; or
(ii)directing the Commonwealth to pay to the applicant an amount equal to the value declared under paragraph (c).
It seems to me that the interests of Ms Khalil as registered proprietor and ANZ as mortgagee are protected by this provision. Those parties, and indeed, any other party, who may claim an interest in the property could make an application pursuant to s 104 for an order declaring the nature and extent and value of the interest, and either directing the Commonwealth to transfer the interest to that party or directing the Commonwealth to pay an amount equal to the declared value.
To this end, it is proposed that if a restraining order is made, the applicant serve Mr Cahill, Ms Khalil, and ANZ with the order, together with a copy of the originating summons, the supporting affidavit, the undertaking, and a letter outlining the requirements and effect of s 92, s 102, and s 103; and further, that the Commonwealth not dispose of the property before 25 July 2026 unless any and all applications made by a person claiming interest in the property have been determined. The applicant will also undertake not to oppose any application for leave to apply out of time for relief from forfeiture.
The provisions of the Act permit the making of a restraining order on the basis of the court being satisfied of the reasonable suspicions of an authorised officer that a person has committed a serious offence and that the person has effective control of a property, even if it does not amount to a legal or equitable interest.
The court must make the restraining order if the requirements are satisfied. In this case, the court is so satisfied. It is appropriate that the application be heard ex parte in the circumstances, given that the court is able to give relief from forfeiture to persons having a legitimate interest in the property and thus relieve them of the adverse effects of the forfeiture.

Orders

I make orders as follows.
1.Pursuant to s 26(4) of the Proceeds of Crime Act2002 (Cth) the application by originating summons be heard and determined ex parte.
2.Pursuant to s 18 of the Act, no person may dispose of or otherwise deal with the property specified in the schedule, except in the manner and circumstances specified in this order or with the written consent of the applicant.
3.The applicant must notify Simon Cahill, Mariam Khalil, and the Australia and New Zealand Banking Group Ltd of the order by serving on each the order, together with the originating summons, the supporting affidavit, the undertaking as to damages, and a notice explaining the requirements and effect of s 92, s 102, and s 103 of the Act.
4.Pursuant to s 33(3) of the Act, the applicant may delay serving the order as directed in [31(3)] until as soon as practicable after a proceeds of crime memorial has been registered on the certificate of title of the property.
5.In the event that the Commonwealth is in a position to do so, the Commonwealth may not dispose of the property prior to 25 July 2026 unless any and all applications for relief from forfeiture by a person claiming an interest in the property have been determined.
6.The applicant do provide an undertaking that it will not oppose any application for leave to apply out of time under ch 2 pt 2‑1 div 3 of the Act, or ch 2 pt 2‑3 div 1 and div 3 of the Act.
Schedule: The real property located at 34 Cooks Avenue, Canterbury, in the State of New South Wales, being the whole of the land comprised in certificate of title folio identifier 23/9484.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
Associate to Judge Staude
3 NOVEMBER 2025