International Finance Trust Company Ltd v New South Wales Crime Commission (No 2) - [2010] NSWCA 46

NEW SOUTH WALES COURT OF APPEAL

CITATION:
INTERNATIONAL FINANCE TRUST COMPANY LTD v NEW SOUTH WALES CRIME COMMISSION (NO 2) [2010] NSWCA 46

FILE NUMBER(S):
40386/08;
40283/09

HEARING DATE(S):
7 December 2009

JUDGMENT DATE:
19 March 2010

PARTIES:
International Finance Trust Company Ltd – First Appellant
IFTC Broking Services Ltd – Second Appellant
New South Wales Crime Commission – First Respondent
The beneficial owners of various bank and share trading accounts – Second Respondent
The beneficial owners of ANZ National Bank Ltd account number 201980-AUD-01 in the name of Ceteris Paribus – Third Respondent
RLB Investments Ltd – Fourth Respondent
Gary Bonaccorso – Fifth Respondent
Iron Investments Ltd – Sixth Respondent
Iron International Ltd – Seventh Respondent
Ore Investments (Pte) Ltd – Eighth Respondent
Phillip Felice Grimaldi – Ninth Respondent

JUDGMENT OF:
Allsop P Basten JA McClellan CJ at CL

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 12212/08

LOWER COURT JUDICIAL OFFICER:
Hislop J; Deputy Registrar C Lee

LOWER COURT DATE OF DECISION:
25 October 2008;

LOWER COURT MEDIUM NEUTRAL CITATION:
[NSW Crime Commission v The Beneficial Owners of Various Bank and Share Trading Accounts] [2009] NSWSC 322

COUNSEL:
T E F Hughes AO/QC; G J Jones/G A F Connolly – First and Second Appellants
I D Temby QC/P F Singleton – First Respondent
N/A – Second to Ninth Respondents

SOLICITORS:
Atanaskovic Hartnell – First and Second Appellants
New South Wales Crime Commission – First Respondent
Michael Abboud & Co – Fifth Responden
tM J Woods & Co – Ninth Respondent

CATCHWORDS:
ADMINISTRATIVE LAW – procedural fairness – hearing rule – consent orders made concerning disposal of property – orders made without notice to third party claiming interest – whether denial of opportunity to assert interest in property
CRIMINAL LAW – recovery of proceeds of crime – restraining orders – interaction with other provisions relating to recovery of proceeds of crime – extent to which constitutional invalidation of provision affects orders made under other provisions – [Criminal Assets Recovery Act 1990] (NSW), ss 10, 12, 27, s 33
PRIVATE INTERNATIONAL LAW – enforcement of judgments – overseas registration – restraining orders registered in New Zealand – dismissal of proceedings in which orders made – whether necessary to order that steps be taken for registration to be revoked
PROCEDURE – judgments and orders – effect of appellate judgment – effect of dismissal of proceedings – specific orders within proceedings not expressly set aside – whether orders discharged by virtue of dismissal of proceedings
PROCEDURE – jurisdiction – distinction between jurisdiction and satisfaction as to factual preconditions to exercise of jurisdiction – orders made by consent – whether necessary for Court to undertake independent inquiry into factual basis for orders
WORDS & PHRASES – "assets forfeiture order" – "effective control" – "proceeds assessment order" – "restraining order"

LEGISLATION CITED:
[Criminal Assets Recovery Act 1990] (NSW), ss 4, 7, 8, 10, 12, 22, 27, 29, 30, 33; Sch 1, cll 15, 16, 20
[Mutual Assistance in Criminal Matters Act 1987] (Cth), ss 3, 32
[New South Wales Crime Commission Act 1985] (NSW), s 6
[Supreme Court Act 1970] (NSW), s 69
[Trade Practices Act 1974] (Cth), Pt IV
Uniform Civil Procedure Rules 2005 (NSW), r 49.19

CATEGORY:
Principal judgment

CASES CITED:
[Cameron v Cole] [1944] HCA 5; 68 CLR 571
[CDJ v VAJ] [1998] HCA 67; 197 CLR 172
[International Finance Trust Company Ltd v New South Wales Crime Commission] [2008] NSWCA 291; 251 ALR 479; 189 A Crim R 559
[International Finance Trust Company Ltd v New South Wales Crime Commission] [2009] HCA 49
[NSW Crime Commission v The Beneficial Owners of Various Bank and Share Trading Accounts] [2009] NSWSC 322
[Re Macks; Ex parte Saint] [2000] HCA 62; 204 CLR 158
[Thomson Australian Holdings Pty Ltd v Trade Practices Commission] [1981] HCA 48; 148 CLR 150
[Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan] [1931] HCA 34; 46 CLR 73

TEXTS CITED:

DECISION:
In matter No 40386/08:
(1) Grant leave to appeal.
(2) Dismiss the appeal, with no order as to costs.[ ]
In matter No 40283/09:
(1) Grant leave to appeal to this Court.
(2) Direct the appellants to file a notice of appeal amended so as to include the orders sought in the notice of motion.
(3) Dismiss the appeal.
(4) Order the appellants to pay the respondent’s costs of this proceeding in this Court.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40283/09
CA 40386/08
SC 12212/08
ALLSOP P
BASTEN JA
McCLELLAN CJ at CL
19 March 2010

INTERNATIONAL FINANCE TRUST COMPANY LTD v NEW SOUTH WALES CRIME COMMISSION (NO 2)

Headnote

The appellants were two of a number of defendants in proceedings brought in the Common Law Division by the New South Wales Crime Commission ("the Commission") under the Criminal Assets Recovery Act 1990 (NSW) ("the Recovery Act"). The proceedings resulted in an initial set of restraining orders made by Hoeben J under ss 10 and 12 of the Recovery Act, a further set of similar restraining orders made by Hislop J (subsequently registered in New Zealand), as well as a proceeds assessment order made, by consent between the Commission and a separate defendant to the proceedings, by a Deputy Registrar. Each set of orders gave rise to an appeal to this Court. The first appeal, from the orders of Hoeben J, involved a constitutional challenge to the validity of s 10, but the appeal was upheld on other bases. On further appeal to the High Court, s 10 was declared invalid and the proceedings were dismissed. The second appeal, from the orders of Hislop J, was discontinued.

The challenge to the consent orders entered by the Deputy Registrar remained. These orders had the effect of transferring to the Treasurer property in which the appellants asserted an interest. The relevant orders were made pursuant to s 27 of the Recovery Act, which (it was accepted by the appellants) was constitutionally valid.

The issues for determination on appeal were:

whether the consent orders were discharged by virtue of the dismissal by the High Court of the proceedings in which they were entered;

if the consent orders otherwise remained on foot, whether –
(a) the Deputy Registrar lacked jurisdiction to make them;
(b) they were made in breach of the rules of procedural fairness; and

whether this Court should direct the Commission to take steps to have the registration in New Zealand of the restraining orders made by Hislop J revoked.

The Court held, dismissing the appeal (per Basten JA, Allsop P and McClellan CJ at CL agreeing):

In relation to (i)

The orders of a superior court will have effect until they are set aside or discharged. Where orders have been made erroneously on an application, it would be inappropriate merely to dismiss the original application without dealing with orders already made. The High Court's dismissal of the proceedings generally did not result in the setting aside of the consent orders: [53]–[56].

Cameron v Cole [1944] HCA 5; 68 CLR 571; Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158, applied.

In relation to (ii)(a)

Faced with a valid application brought under a valid statutory provision, the Deputy Registrar possessed jurisdiction to make the orders. It was unnecessary for her to undertake an independent inquiry into the factual basis for the orders, where the orders had been agreed by the parties: [62]–[66].

Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; 148 CLR 150, applied.

In relation to (ii)(b)

The enforcement of the consent orders was subject to the making of a declaration by the Court as to the availability of an interest in property to satisfy the order. Notice of an application for such a declaration had been given to persons who may have an interest in the property. The appellants were accordingly not denied an opportunity to assert their interest in the property: [68]–[72].

In relation to (iii)

In circumstances where this Court had not set aside the orders of Hislop J; where it may be assumed that the Commission had the power and an implied obligation to seek the deregistration of the orders; where there is no indication that the Commission would not take any necessary steps, and where other matters were not explored, it is not appropriate for this Court to make an order directing the Commission to take such steps: [75]–[81].

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40283/09
CA 40386/08
SC 12212/08
ALLSOP P
BASTEN JA
McCLELLAN CJ at CL
19 March 2010

INTERNATIONAL FINANCE TRUST COMPANY LTD v NEW SOUTH WALES CRIME COMMISSION (NO 2)

Judgment

ALLSOP P: I agree with Basten JA.
BASTEN JA: The appellants in these proceedings were two of a number of defendants in proceedings in the Common Law Division brought by the New South Wales Crime Commission (“the Commission”) seeking orders under the Criminal Assets Recovery Act 1990 (NSW) (“the Recovery Act”). The proceedings against them have been dismissed by the High Court. They now seek to establish that the effect of that order was to set aside certain orders made by consent between the Commission and another party or, in the alternative to have the orders set aside. In order to address the questions which now arise, it is necessary to understand the history of the proceedings so far.
The consent orders sought to be impugned were made by a Deputy Registrar in the Common Law Division. The appellants did not seek to have the orders reviewed in the Division: see Uniform Civil Procedure Rules 2005 (NSW), r 49.19. No point was taken as to the propriety of bringing the matter directly to this Court.

Procedural history

When the proceedings were commenced as matter No 12212 of 2008, on 13 May 2008, the defendants were merely identified as “the beneficial owners of various bank and share trading accounts”. On that day, Hoeben J made orders on the application of the Commission, without notice to the defendants. The orders included a “freezing order” pursuant to s 10 of the Recovery Act, an order vesting control of all interests of the beneficial owners in the Public Trustee and, pursuant to s 12 of the Recovery Act, an order requiring the Public Trustee to hold the money and any dividends obtained with respect to the shares in interest bearing accounts. The original summons appears not to be in the papers before this Court, but it may be assumed that other orders were sought and that the orders made by Hoeben J were interlocutory.
On 13 June 2008 the appellants were joined as defendants in the proceedings and on 13 August 2008 they commenced proceedings in this Court challenging the orders of Hoeben J (“the first appeal”, being matter No 40179 of 2008).
By 27 October 2008, a fourth amended summons had been filed in the Common Law Division. It sought various orders under ss 7(3), 22 and 27 of the Recovery Act, the details of which will be noted below, but which included orders that the interests of the beneficial owners of the accounts be forfeited to the Crown, declarations as to the ownership of certain accounts and orders that particular defendants pay money to the Treasurer as the value of proceeds derived from illegal activities. By that stage, there were 8 named defendants to the proceedings, including the appellants, who were the third and fourth defendants. Some of the accounts were located in New Zealand, others in Australia.
The first appeal led to the initial orders and various consequential orders being set aside, judgment being delivered on 6 November 2008: International Finance Trust Company Ltd v New South Wales Crime Commission [2008] NSWCA 291; 251 ALR 479; 189 A Crim R 559. However, the Court unanimously dismissed a Constitutional challenge to the validity of s 10 of the Recovery Act, as a provision investing the Supreme Court with a power repugnant to or incompatible with its exercise of federal judicial power.
Whilst judgment on the first appeal was reserved, on 25 October 2008 the Commission obtained from Hislop J orders substantially to the same effect as those which had been made by Hoeben J six months earlier.
The first orders had been sought on the basis of an affidavit of a Federal Police Officer, Arthur Berry Moerman. One of the grounds in the first appeal had involved a challenge to the admissibility of parts of that affidavit and a challenge to the satisfaction reached by Hoeben J, based on that material. The orders sought from Hislop J were based on different material, being that contained in the affidavit of an officer of the Commission, Jonathon Lee Spark.
On 12 November 2008, the appellants applied for leave to appeal from the orders of Hislop J (“the second appeal”, being matter No 40386 of 2008).
A majority in this Court on the first appeal (Allsop P and Beazley JA) had held that a judge making orders under s 10 of the Recovery Act was required to provide reasons. On 28 April 2009, (in response to a request made by the Commission on 12 December 2008) Hislop J gave reasons for the orders his Honour had made on 25 October 2008: NSW Crime Commission v The Beneficial Owners of Various Bank and Share Trading Accounts [2009] NSWSC 322.
In the meantime, on 13 March 2009 the appellants obtained special leave to appeal to the High Court against the dismissal in the first appeal of the Constitutional challenge to the validity of s 10 of the Recovery Act. The appellants sought the following orders:
(1) Order the appeal allowed with costs.
(2)Declaration that s 10(3) of the Criminal Assets Recovery Act 1990 (NSW) is invalid.
(3)Proceedings commenced by the first respondent against the appellants in the Supreme Court of New South Wales in proceeding S 12212 of 2008 are dismissed with costs.
On 12 November 2009 the High Court upheld the appeal, accepting that the procedure set out in s 10(3) rendered the section invalid: International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49. Order (2) in the first appeal had provided that certain specified orders made in May 2008 “in proceedings 12212 of 2008 be set aside”. In the High Court, in accordance with the orders proposed by Gummow and Bell JJ (with the concurrence of French CJ and Heydon J), order (2) was varied by adding at the end “and proceedings 12212 of 2008 be dismissed and the first respondent pay the costs of those proceedings of the appellants”. The Court also declared s 10 of the Recovery Act invalid.
The precise effect of the High Court’s orders will be addressed in due course, in the light of further consideration of the scope and operation of the Recovery Act and, in particular, provisions other than s 10 and not dependent upon orders made under s 10. Before addressing those matters, it is necessary to refer to some further procedural steps which had taken place in the proceedings in the Common Law Division, prior to the orders made in the High Court.
On 21 July 2009 the Deputy Registrar made the following orders, by consent, in relation to Mr Philip Felice Grimaldi, being the tenth defendant in the proceedings brought by the Commission:
“7.Pursuant to s 12(1) of the Act the restraining order be varied to exclude the interests in property of Grimaldi except for the interests in property specified in Schedules One and Two hereto.
8. The application for an assets forfeiture order be dismissed.
9.Pursuant to s 27 of the Act Grimaldi pay to the Treasurer the sum of $19,531,791.93 (‘the proceeds assessment order’).
10.Pursuant to s 27(12) of the Act the Treasurer pay to the ATO from the Confiscated Proceeds Account any such amount or amounts paid in satisfaction or partial satisfaction of the proceeds assessment order in accordance with s 32(3)(b) of the Act.”
The context in which these orders were made should be noted. It is succinctly provided by reference to matters noted by the Court and set out as part of the “consent order”. The relevant paragraphs read:
“1.On 25 October 2008 the Court made an order (“the restraining order”) pursuant to section 10 of the Criminal Assets Recovery Act 1990 (“the Act”) in respect of all of the interests in property of Philip Felice Grimaldi (“Grimaldi”), the tenth defendant in these proceedings.
2. On 27 October 2008 the plaintiff applied to the Court:
(a)pursuant to section 22 of the Act for an order forfeiting to, and vesting in, the Crown the interests in property of Grimaldi in the property specified in the schedules … (“the application for an assets forfeiture order”); and
(b)pursuant to section 27 of the Act for a proceeds assessment order in respect of the illegal activities of Grimaldi.
3.On 14 July 2009, … the Federal Court … made an order that judgment be given to the Commissioner of Taxation against Grimaldi in the amount of $36,119,836.12 … (“the tax debt”).
4.The primary tax payable by Grimaldi to the Australian Taxation Office (“the ATO”) in relation to the tax debt is $19,531,791.93 (“the primary tax debt”).
5.The plaintiff contends, and Grimaldi makes no admissions that:
(a)Grimaldi engaged in serious crime related activities (within the meaning of section 6(2)(d) of the Act) namely dishonestly obtaining a financial advantage by deception contrary to s 178BA of the Crimes Act 1900 in that for the years ended 30 June 2006 and 30 June 2007 Grimaldi dishonestly engaged in activities to avoid the payment of tax with the intent of obtaining for himself a financial advantage; and
(b)on 10 October 2008 Grimaldi engaged in a serious crime related activity (within the meaning of section 6(2)(d) of the Act) namely, attempting to pervert the course of justice contrary to section 319 of the Crimes Act 1900 in that on 10 October 2008 Grimaldi swore an affidavit in these proceedings to which he annexed at an annexure “B” … a document purporting to be a trust deed dated 7 July 2005 between Iron Investments Ltd … and MGG Capital Pty Ltd as trustee for the Webtel Management Super Fund (the beneficiary) ….
6.The plaintiff contends, and Grimaldi makes no admissions, that Grimaldi has engaged in an illegal activity namely, conspiring to defraud contrary to section 135.4(3) of the Criminal Code 1995 (Cth) in that between 30 June 2006 and 25 October 2008 Grimaldi did conspire with others with the intention of dishonestly causing a loss to the ATO, being a Commonwealth entity.”
The first order (“order 7”) assumes the continued operation of a restraining order made by Hislop J on 25 October 2008. The effect of that order, as at 21 July 2009, depends on whether the orders made by Hislop J under ss 10 and 12 were invalid, or stood until set aside or discharged. However, the effect of order 7 above would have been to remove from any valid existing restraining order some interests (unidentified except by way of the exception) of Mr Grimaldi. That effect is not presently relevant. Further, nothing turned on order 8, dismissing the application for an assets forfeiture order. The orders of present consequence were orders 9 and 10, made pursuant to s 27.
In making the consent orders, the Court noted that the Commission intended to seek declarations that the interests of the appellants were subject to the effective control (as defined in ss 8 and 7(3) of the Recovery Act) of Mr Grimaldi; orders (pursuant to s 29) that the interests specified in the Schedules were available to satisfy the proceeds assessment order made against Grimaldi; and an order (pursuant to s 27(12)) that the New South Wales Trustee and Guardian take control of the interests of Mr Grimaldi in the property.
On 22 July 2009 the Commission filed a notice of motion seeking such declarations and orders. The appellants did not assert that they had not been given notice of that motion. It appears that the motion has not yet been determined, presumably at first because of the outstanding appeals and then because of the orders of the High Court, as understood by the Commission.

On 13 August 2009 the appellants filed an appeal to this Court (“the third appeal” being matter No 40283/09) seeking to challenge the consent orders. The grounds of the challenge will be identified below, but it may be noted at this stage that the appellants included a ground challenging the Constitutional validity of s 27 of the Recovery Act, under which the consent orders were made. That challenge was abandoned following the judgment of the High Court in respect of the first appeal.
On 30 November 2009 the appellants filed a notice of motion in the second and third appeals which, as amended in Court on 7 December 2009, sought the following substantive orders:
“(1)If and to the extent necessary, an order that all orders and directions in Supreme Court proceeding 12212 of 2008 be discharged.
(2)An order that the appellants’ appeals in Court of Appeal proceedings 40386 of 2008 [the second appeal] and 40283 of 2009 [the third appeal] be discontinued with no order as to the costs of those appeals.
(3)An order that the first respondent forthwith request the Attorney-General of the Commonwealth of Australia to take all steps necessary to request the Attorney-General of New Zealand to effect the cancellation of the registration in New Zealand of Hislop J’s orders of 25 October 2008.”
In substance the motion appears to have been an application to amend the notices of appeal to seek additional orders, although the third order may have required the exercise of original jurisdiction. Underlying the orders was the proposition that the whole of the primary proceedings were without legal validity and all the orders made in the course of those proceedings should be set aside.
In its written submissions, the Commission accepted that the second appeal should be discontinued with no order as to costs. The Commission also accepted that the order of the High Court dismissing the primary proceedings prevented the Commission from “moving further on the fourth amended summons”. It did not, however, accept that the consent orders which had been made and entered were void. It submitted that the orders were valid until discharged and that the appellants had no standing to seek to have the orders discharged.
At the commencement of the hearing of the appeals on 7 December 2009, before the commencement of submissions, leave was granted, if required, to discontinue the second appeal, against the orders of Hislop J, with no order as to costs: Appeal Tcpt, p 1(25)-(32). That course was accepted by senior counsel for the appellants as “not controversial”. No other orders were made, or sought to be made, in the second appeal. An amended notice of appeal was then filed in Court (with leave) in the third appeal: Tcpt, p 1(40)-(50).
Mr Grimaldi was identified as the ninth respondent to the third appeal, but did not appear. At the hearing of the appeal, the appellants tendered, without objection, correspondence establishing that Mr Grimaldi had been served through his solicitors with a copy of the notice of appeal and a copy of the written submissions of both the appellants and the Commission. The Court may be satisfied that Mr Grimaldi had notice of the third appeal, including the date fixed for hearing and was on notice of the contents of the submissions of both the appellants and the Commission as at 26 October 2009.

Issues

The appellants challenged the orders (set out at [15] above) on several separate bases which may be set out in full:
“(1)By virtue of s 27(2) of the [Recovery Act], the Court had no jurisdiction to make the ‘proceeds assessment order’ referred to in order 9 of the consent orders because there was no evidence before the Court that could have satisfied the Court that the second respondent had engaged in any of the activities alleged by the first respondent in orders 5 and 6 of the consent orders.
(2)By virtue of s 27(2B) of the [Recovery Act], the Court had no jurisdiction to make the ‘proceeds assessment order’ referred to in order 9 of the consent orders because:
(a)the application for that ‘proceeds assessment order’ related wholly to alleged ‘external serious crime related activity’ within the meaning of s 4(1) of the [Recovery Act]; and
(b)there was no evidence upon which the Court could have been satisfied that no action had been taken under a law of the Commonwealth in relation to the proceeds of the alleged ‘external serious crime related activity’.
(3)Order 9 of the consent orders was made per incuriam in that the provisions of s 27(2) and s 27(2B) of [the Recovery Act] were not drawn to the attention of Deputy Registrar C Lee on 21 July 2009.
(4)The making and entry of the consent orders without notice to the appellants denied procedural fairness to the appellants as affected parties with effective control of the property specified in Schedules 1 and 2 to the consent orders.
(5)The effect of order 2(a) made by the High Court of Australia … is to disable the plaintiff (first respondent) in Supreme Court proceedings 12212 of 2008 from relying on any prayers for relief or orders made in the proceedings constituted by the fourth amended summons as a basis for relief against the third defendant and fourth defendants [appellants].”
Although the appellants’ submissions in this Court did not approach the matters in precisely this way, the primary issues raised by a combination of the grounds and the orders sought involved:
(1)the effect of order (2) made by this Court on the first appeal, as varied by the High Court;
(2)if the consent orders otherwise remained on foot, whether –
(a)          the appellants had standing to challenge them on appeal;
(b)          they were made in breach of the rules of procedural fairness;
(c)          the Registrar lacked jurisdiction to make them because –
(i)the factual basis for such orders had not been made out, and
(ii)there was no evidence excluding the operation of s 27(2B);
(3)whether this Court should direct the Commission to take steps to have the registration of the restraining orders in New Zealand revoked.
Before addressing these issues and the orders sought by the appellants, it is convenient to consider the relevant statutory scheme and underlying legal principles.

Relevant provisions of the Recovery Act

The orders made by Hoeben J on 13 May 2008 commenced with a set of restraining orders made pursuant to s 10 of the Recovery Act. Section 10(1) provided:
“10 Restraining orders
(1)A restraining order is an order that no person is to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property to which the order applies except in such manner or in such circumstances (if any) as are specified in the order.
The judgment of the High Court declared s 10, in its then terms, to be invalid. The orders made by Hoeben J under s 10 had not, for other reasons, survived the judgment of this Court on the first appeal.
On 16 May 2008 Hoeben J made further orders pursuant to s 12(1) of the Recovery Act, requiring that certain identified persons having an interest in property subject to the restraining order be examined on oath, concerning their affairs and the nature and location of any property in which they had an interest. Section 12(1) described such orders as “ancillary orders” and as available only upon or after making restraining orders. This Court held on the first appeal that such orders, made on 16 May 2008, should also be set aside. Further, this Court on the first appeal set aside orders requiring the production of documents, also made pursuant to s 12(1) and ancillary to the restraining orders.
The orders for the joinder of the appellants, and other parties, also made on 16 May, were not set aside by the orders of this Court on the first appeal. The Court left standing orders made under s 33(2) of the Recovery Act, the validity of such orders not being dependent on the restraining orders. Section 33 appears in Part 4 of the Recovery Act, entitled “Information gathering powers” and, so far as relevant, reads as follows:
“33 Making of production order
(1)If an authorised officer has reasonable grounds for suspecting that a person has possession or control of a property-tracking document … the authorised officer may:
(a)lay before the Supreme Court an information on oath setting out those grounds, and
(b)apply to the Court, ex parte, for a production order against the person suspected of having possession or control of the document ….
(2)The Supreme Court may order the person against whom an application for a production order is made under subsection (1):
(a)except in the case of bankers’ books, to produce to an authorised officer at a specified time … any property-tracking documents that are in the person’s possession or control ….”
Section 4 contains the following definition:
property-tracking document means:
(a) a document relevant to:
(i)identifying, locating or quantifying any interest in property of a person who might reasonably be suspected of being, or of having been, engaged in a serious crime related activity …
(b) a document relevant to:
(i)identifying, locating or quantifying an interest in property that might reasonably be suspected of being an interest that is serious crime derived property ….”
While the concept of having been engaged in “a serious crime related activity” provides an element of the circumstances in which a restraining order made be obtained under s 10, there is nothing in s 33 which renders the power to make a production order dependent upon the existence of a restraining order or any order ancillary thereto. The procedural steps for obtaining a production order are discrete and self-contained. To the extent that the summons filed by the Commission in the Common Law Division sought such orders, neither the orders originally made by this Court, nor the orders as varied by the High Court, cast any doubt on the validity of s 33 of the Recovery Act or the orders made thereunder.
At least by the time the fourth amended summons had been prepared, the Commission had included an application for forfeiture orders under s 22 of the Recovery Act. That section relevantly provides:
“22 Making of assets forfeiture order
(1)The Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown all or any of the interests in property that are, or are proposed to be, subject to a restraining order when the assets forfeiture order takes effect.
(1A)An application may be made under subsection (1) before or after or at the same time as an application for the relevant restraining order but may not be determined before the restraining order is granted.”
No issue arose as to the possible invalidity of an order under s 22, in the light of the findings with respect to s 10. Forfeiture orders appear not to have been sought in the original summons, or not to have been sought with respect to all interests in property, because the orders of 25 October 2008 included a grant of leave to the Commission to amend its summons to seek assets forfeiture orders in respect of certain interests in property. In the High Court, Gummow and Bell JJ concluded at [99], in a passage with which French CJ agreed at [60]:
“The appellants have succeeded in establishing the invalidity of s 10. They also challenged the validity of s 22 on a distinct ground. This is that the assets forfeiture provision is a bill of pains and penalties. Section 22 is not a bill of pains and penalties; it does not operate independently of a judicial determination of liability. As the Commonwealth Solicitor-General correctly submitted, the significance of s 22 lies in its interaction with s 10 and not otherwise.”
Heydon J also dismissed the challenge to the validity of s 22: at [166]-[169]. While s 22 may have no work to do, absent a valid means of obtaining a restraining order, the independent challenge to its validity was rejected.
Reference must be made to the procedure under Part 3, Division 2 of the Recovery Act for the making of “proceeds assessment orders”. Section 27, so far as relevant provides:
“27 Making of proceeds assessment order
(1)The Commission may apply to the Supreme Court for a proceeds assessment order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity ….
…
(2B)The Supreme Court may not make a proceeds assessment order in an application that relates wholly to external serious crime related activity, unless it is satisfied that no action has been taken under a law of the Commonwealth or any other place outside this State (including outside Australia) in relation to the proceeds of the external serious crime related activity.
…
(7)The amount a person is required to pay under a proceeds assessment order is a debt payable by the person to the Crown on the making of the order and is recoverable as such.
…
(10)Notice of an application under this section is to be given to the person against whom the order is sought and any other person required by the regulations to be given notice.
…
(12)The Supreme Court may, when it makes a proceeds assessment order [or?] at any later time, make any ancillary orders that the Court considers appropriate.”
The consequence of the making of a proceeds assessment order is not entirely independent of provisions relating to restraining orders and asset forfeiture orders, because property held under a restraining order may be sold in order to satisfy the debt created by a proceeds assessment order: s 30. However, the procedure for invoking the power of the Court is entirely separate from that involved in seeking a restraining order or an assets forfeiture order. Nor is the making of a proceeds assessment order in any way contingent upon either the existence of, or an application for, a restraining order or an assets forfeiture order. Accordingly, there is nothing in the earlier decisions of this Court and the High Court which called in question the validity of an application for an order under s 27.
Section 29 is of importance in relation to the appellants’ contention that they were prejudiced by the making of the consent orders without notice to them. It states:
“29 Enforcement of order against property under effective control
(1)On the application of the Commission, the Supreme Court must, if of the opinion that an interest in property is subject to the effective control of a person in relation to whom the Court has made a proceeds assessment order, make an order declaring that the interest is available to satisfy the order to the extent that other property is not readily available for that purpose.
(2)If the Supreme Court declares that an interest in property is available to satisfy a proceeds assessment order, the proceeds assessment order may be enforced against the property to the extent specified in the declaration.
(3)If application is made for an order under this section:
(a)the Commission must give notice of the application to the person against whose interest in property the order is sought and to any other person who the Commission has reason to believe may also have an interest in the property to which the application relates, and
(b)each person to whom notice is given, and any other person who claims an interest in the property, may appear, and adduce evidence, at the hearing of the application.
(4)Despite section 7, an interest in property is not available to satisfy a proceeds assessment order made against a person who has effective control of the interest unless the Supreme Court makes a declaration under this section in relation to the interest.”
Section 30 permits the Public Trustee who has property under a restraining order to seek a direction that it sell or otherwise dispose of a specified interest in the property, for the purpose of paying to the Treasurer an amount sufficient to discharge a debt created by s 27 arising under the proceeds assessment order.
Subject to extant orders of this Court and of the High Court, the law to be applied by this Court on the third appeal will be the law in force at the date of this Court’s judgment: see Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73 at 109; CDJ v VAJ [1998] HCA 67; 197 CLR 172 at [111]. The law has changed in a material respect since the delivery of judgment by the High Court. On 26 November 2009, the Criminal Assets Amendment Act 2009 (NSW) (“the 2009 Amendment Act”) commenced. Section 10 of the Recovery Act, in its invalid form, was replaced by new provisions. (Other changes to the Recovery Act, which have no present relevance, were also made.) Importantly, new provisions of a savings and transitional nature were included in Schedule 1 of the Recovery Act.
Two substantive provisions in the 2009 Amendment Act have relevance for the present proceedings. First, provision is made with respect to “current former restraining orders” which are defined to mean “a former restraining order that had not ceased to be in force before 12 November 2009, other than because of the invalidity of s 10 (as purported to be in force immediately before that date) on constitutional grounds”: Schedule 1, cl 15. Thus, cl 16 provides:
16 Current former restraining orders
(1)The provisions of a current former restraining order, as purported to be in force before 12 November 2009, have effect by force of this clause on and from the date on which the order was purported to be made or otherwise purported to take effect.
(2)This Act and any other law apply to or in respect of restraining provisions in the same way that they apply to or in respect of a restraining order or ancillary order of the same kind made under this Act.
(3)Without limiting subclause (2), restraining provisions cease to have effect, in accordance with this Act, as if they were a restraining order or ancillary orders of the same kind made by the Supreme Court under this Act.
(4)Any thing done or omitted to be done under this Act or any other law in respect of a current former restraining order or any interest in property purported to be subject to a current former restraining order is taken to have been done or omitted in respect of the corresponding restraining provisions or interest in property subject to those provisions.
(5)This clause does not give effect to the provisions of any order that is set aside or discharged by a court after 12 November 2009 (for any reason) and before the date of introduction into Parliament of the Bill for the 2009 Act in respect of any period after the order was set aside or discharged.
(6)This clause does not apply to the specific restraining orders the subject of proceedings in the Court of Appeal in International Finance Trust Company Limited & Anor v New South Wales Crime Commission [2008] NSWCA 291.”
The effect of this provision is to give legislative force to a restraining order made by the Court under the invalid s 10 on and from the date on which it purported to have been made: cl 16(1). While that does not apply to “the specific restraining orders the subject of proceedings in [the first appeal]”, there is no reason to suppose that it does not apply in its terms to the orders made by Hislop J on 25 October 2008, which were the subject of the second appeal, but which had not been set aside or discharged by a court within the terms of cl 16(5). The challenge mounted by the second appeal could have had effect pursuant to cl 16(4), the phrase “restraining provisions” being defined to mean the provisions given effect by cl 16(1): see cl 15. The second appeal sought to challenge the orders of Hislop J on bases unrelated to the constitutional question. That appeal having been discontinued (see [24] above), that aspect of the matter need not be addressed further.

The 2009 Amendment Act also made provision in Schedule 1 with respect to existing applications for assets forfeiture orders. The phrase “existing forfeiture application” was defined to mean “an application for an assets forfeiture order that was pending immediately before 12 November 2009 and that was not dismissed or discontinued for any reason before the commencement of the 2009 Act”: cl 15. Clause 20 provides:
“20 Existing applications for assets forfeiture orders
(1)An existing forfeiture application is taken to have been validly made and may be granted by the Supreme Court under section 22 whether or not a restraining order is made in respect of interests in property the subject of the application.
…
(3)Nothing in subclause (1) prevents an application being made for a restraining order in respect of an interest in property that is the subject of an existing forfeiture application.”
The operation of cl 20 in the present case depends upon whether there was an existing forfeiture application pending immediately before the order of the High Court, made on 12 November 2009 (which appears to be the case) and, critically, whether that application was dismissed before the commencement of the 2009 Amendment Act on 26 November 2009. Such dismissal may have occurred pursuant to the order of the High Court itself.
Although the parties were invited to address the operation of the 2009 Amendment Act in the course of the hearing on 7 December before this Court, little analysis was undertaken and no request was made to seek to address the legislation in further submissions. Under the old (invalid) s 10, a restraining order only remained in force while there was on foot an application for an assets forfeiture order or for a proceeds assessment order: s 10(9). Whether that provision had any bearing on the current litigation was not explored in argument.
Finally, it is necessary to note the effect of orders of the Court. It was not in dispute that orders made in the Supreme Court, being a superior court of record, were valid and effective unless and until set aside: Cameron v Cole [1944] HCA 5; 68 CLR 571 at 590 (Rich J, Latham CJ agreeing); Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158 at [20] (Gleeson CJ), [49] (Gaudron J, the orders not being made in the exercise of federal jurisdiction), [135] (McHugh J, on the same basis), [232] (Gummow J), [255]-[256] (Kirby J) and [328] (Hayne and Callinan JJ).

Grounds: Operation of order (2)

The primary position put on behalf of the appellants was that the consent orders entered into between the Commission and Mr Grimaldi had been discharged as a result of the dismissal of the proceedings in which they were made. Alternatively, they should now be set aside on the same basis.
The Commission denied that the consent orders have already been discharged as a consequence of the High Court’s order, because that would disregard the fact that an order made without jurisdiction remains valid until set aside. In so far as order 2 dismissed the proceedings, it should not be understood as having the consequence of setting aside otherwise valid orders made between the Commission and a third party, to which the appellants were, as they accept, not party. Further, the Commission contends, the invalidity of s 10 does not affect an order under s 27 of the Recovery Act and in any event the appellants, not being affected by the order, have no standing to challenge it.
It is convenient to defer the question of the appellants’ standing.
As has been noted, by the time the fourth amended summons was filed on 27 October 2008, the proceedings encompassed numerous forms of relief, sought not merely against the beneficial owners of certain bank and share trading accounts, and against the appellants, but also against two other individuals, being Mr Garry Bonaccorso and Mr Grimaldi, together with four companies having addresses in Vanuatu. To the extent that the proceedings, prior to the judgment of this Court in the first appeal, included prayers for relief against identified individuals pursuant to s 27 of the Recovery Act, such prayers were added only after the hearing of the appeal; there is no indication that this Court was aware of the further orders sought at the time it delivered its judgment. Similarly, they played no part in the appeal to the High Court. There is no indication in its judgment that the High Court was aware, or if it were aware, took into account, the fact that other orders were sought in the proceedings, which were not tainted by the invalidity of s 10. That gives rise to two questions, namely:
was order (2) made by this Court, as varied by the High Court, intended to dismiss the proceedings in relation to:
(i) parties other than the appellants, and
(ii)relief sought against the appellants, untainted by the invalidity of s 10?
In one respect, these questions only arise if order (2), as varied, had the effect of invalidating or discharging orders already made, untainted by the invalidity of s 10. Indeed, a question arose as to whether such orders, not the subject of challenge in the first appeal, were affected by the result of the first appeal. Thus, it may follow that the orders made by Hislop J on 25 October 2008 under ss 10 and 12, should be set aside on the basis of the invalidity of s 10. However, the application by the appellants to discontinue and have dismissed the appeal against the orders made by Hislop J, appeared to assume that no such step is necessary.
The effect of the appellants’ submission was that, the proceedings having been dismissed, all other orders made in the course of the proceedings must be taken to have been discharged, even if not expressly set aside.
If that were correct, it would be a consequence which followed inadvertently, at least in relation to the orders made by Hislop J. Further, it is inconsistent with common practice in relation to the exercise of judicial power. Where orders have been made erroneously in favour of an applicant, it is never the case that the only order made by the appellate court is one dismissing the application, as opposed to an order setting aside the orders made below and in place thereof ordering that the application be dismissed. This is consistent with principle, namely that the orders of the superior court will have effect until they are set aside or discharged. It would be inappropriate merely to dismiss the original application without dealing with orders already made. Quite apart from considerations of transparency, there would be a question, as there is in the present case, as to the steps which can properly be taken to undo the consequences of orders which have already been carried into effect. For example, the Public Trustee has taken control of property, with power under certain orders to dispose or attempt to dispose of the property and to acquire listed shares with the proceeds of sale: orders, 25 October 2008; orders 3-5 and 10 of the orders identified as the “IFTC orders”.
To avoid anomalous results of this kind, order 2, as varied by the High Court, should be read as having the following consequences:
(a)the orders specified in paragraphs (a)-(d) of order 2 have been set aside;
(b)the proceedings, as between the Commission and the appellants (there were no other parties in the proceedings in the High Court) have been dismissed so that no further orders can be made by the Court in those proceedings;
(c)the orders made on the appeals brought by the appellants did not dispose of the proceedings against other parties, nor discharge orders to which the appellants were not subject, and
(d)whether the orders which were not expressly disposed of by order 2 should be set aside, and if so on what terms, is a matter which should be addressed on an appeal.
It follows that the mere dismissal of the proceedings as against the appellants has not had the effect of discharging or setting aside orders made by Hislop J on 25 October 2008, nor orders made by the Registrar, by consent, on 21 July 2009.
The fact that the restraining orders made by Hislop J have not been set aside (the appeal having been discontinued with leave on Monday, 7 December 2009), is of little consequence. The legislative restraining order can take effect whether or not an order has been made a judge of this Court pursuant to an invalid statutory provision: Re Macks. It may once have been thought necessary or desirable to set aside the orders made by Hislop J, but to the extent that order 1 in the notice of motion of 30 November 2008 sought to have that effect, that course was abandoned once the second appeal was discontinued without such orders having been made in those proceedings.

Grounds: ‘jurisdiction’ to make consent orders

The appellants submitted that the parties could not consent to orders, absent agreement as to a sufficient factual basis upon which the orders could be made, which in turn required advertence to the relevant legal requirements in subs-s 27(2) and (2B). It was apparent, they argued, from the material placed before the Deputy Registrar, that there was no agreement as to matters critical to the making of such orders. The consent of Mr Grimaldi, as the person whose property was the subject of the proposed orders, was not sufficient, the appellants said, to overcome any absence of findings as to the basis upon which the orders might properly be made.
In order to assess the appellants’ submissions, it is necessary to provide further detail of the form of the consent order. The document headed “Consent Order” was in four parts. The first part contained matters that the Court noted, set out at [16] above. The second part contained the four orders (pars 7-10): at [15] above. The third part set out further matters noted by the Court, being paragraphs 11-21, summarised at [18] above. The fourth part constituted two schedules identifying relevant bank accounts and shareholdings affected by the orders.
In relation to the schedules, it is sufficient to note that the bank accounts were all in the name of the first appellant and the shares had previously been held in a trading account in the name of the second appellant.
The allegations in the matters noted at paragraph 5, if admitted or made good, would satisfy the requirements of s 27(2), in which case the Court “must” make a proceeds assessment order. Section 27(2B) states that the Court “may not” make such an order “in an application that relates wholly to external serious crime related activity”, unless satisfied that no action has been taken under a law of the Commonwealth or any other place outside the State in relation to the proceeds of that activity. Although the allegation of an offence against Commonwealth law would involve “external serious crime related activity” as defined in s 4(1) of the Recovery Act, offences under the Crimes Act 1900 (NSW) clearly do not. The fact relied upon by the appellants, that the whole of the amount in issue was covered by the tax debt to the Commonwealth, does not mean that the State offences were otiose. The application did not relate “wholly to” external serious crime related activity and s 27(2B) was not engaged. Even if it had been engaged, it might be inferred that an order would not have been sought for the benefit of the ATO, if the ATO or any other Commonwealth authority was taking independent action under Commonwealth law.
The grounds of challenge to the orders insisted that, in the absence of relevant evidence or admissions by Mr Grimaldi, the Court “had no jurisdiction” to make the proceeds assessment order. That language is curious: the complaint might have been more aptly cast in terms that the power conferred on the Court was not engaged, rather than that the Court lacked jurisdiction. If s 27 of the Recovery Act were valid, as now accepted, the Court had jurisdiction to make a proceeds assessment order. It had a valid application for such an order before it. The order was not one it lacked jurisdiction to make. Rather, the power (and the obligation in certain circumstances) to make such an order depended on the Court’s satisfaction as to particular factual matters. The appellants did not frame their challenge in that language because, as stated in Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; 148 CLR 150 at 164:
“In deciding whether consent orders sought are in conformity with legal principle the Court is entitled to treat the defendants' consent as involving an admission of all facts necessary or appropriate to the granting of the relief sought.”
Thomson is also authority for the proposition that “[t]he parties by consent cannot confer power upon the Court to make orders which the Court lacks power to make”: at 163. The order in question in that case went beyond an order which could validly be made restraining a person from engaging in conduct constituting a contravention of Pt IV of the Trade Practices Act 1974 (Cth). As the Court noted (at 163):
“The orders therefore lack the essential feature which distinguishes conduct amounting to a contravention of Pt IV from conduct which does not amount to such a contravention.
We would dismiss the cross appeal on the ground that the Federal Court lacked jurisdiction or power to make the consent orders. However, we should not wish it to be thought that it was necessary for the appellant to show an absence of jurisdiction or power in order to succeed. The appellant as a party to the proceedings is entitled to argue that any order made by the Court should conform to legal principle. In the ordinary case where a third party in the appellant's situation is not a party to the proceedings the Court will be justified in making consent orders, if it has jurisdiction and power so to do and the orders are such as to be capable of enforcement.”
The Court did not lack jurisdiction, in the strict sense of the term. It had jurisdiction to make orders of the kind proposed on the application of the Commission. The power to make such orders depended upon certain preconditions being satisfied. The Court had jurisdiction to determine whether those preconditions had been satisfied. The sole question was whether, where the two affected parties consented to the orders, it was necessary for the Court to carry out its own inquiry as to the satisfaction of any statutory preconditions. As the High Court noted in Thomson, a superior court generally has power to make orders by consent without inquiry. Nor is it apparent that a different result should obtain where there are other parties to the proceedings, who will be unaffected by the orders. (In that respect, Thomson fell into a different category, because the interests of the third party were affected.)
Nothing turns on the fact that Mr Grimaldi did not accept the allegations upon which the Commission based its claim. It was not necessary for the purposes of the orders that the factual basis be identified. Further, as explained in the consent order at paragraph 20, Mr Grimaldi’s intention was to resolve the dispute with the Commission, “without prejudice to his rights … to negotiate amounts due by him to the ATO”.
The appellants noted the seriousness of the matters raised against Mr Grimaldi and the need for any facts in dispute to be proved to the comfortable satisfaction of the Court. However, that is true of most criminal proceedings, in relation to which a court is entitled to accept a plea of guilty without requiring the prosecution to satisfy it of the facts on which the charge was based. There was no specific matter relied upon in this case to suggest doubt as to Mr Grimaldi’s capacity or intention in consenting to the orders. Even with notice of the present appeal, Mr Grimaldi did not come to the Court to make any complaint about the consent orders. In the circumstances, the Registrar was entitled to rely upon the agreement between the Commission and Mr Grimaldi. The challenges set out in the first three grounds must be rejected.

Grounds: consent orders – want of procedural fairness

The fourth ground complained that the appellants were denied procedural fairness, as affected parties. If they had a sufficient interest in the orders made with the consent of the Commission and Mr Grimaldi, that ground should be upheld. If they did not, not only should that ground be rejected, but their standing to complain about the consent orders on other bases must be in doubt. It is the last proposition which the Commission sought to raise by way of an objection to the competency of the third appeal.
In the course of the appeal, the logical proposition was put to counsel for the appellants that the proceeds assessment order, and hence the subject matter of the consent orders, was concerned only with the “interests in property of Grimaldi”. If the appellants were interested in the property, their interests would not be affected; if, on the other hand, they had no interests in the property, they had no interest which would be affected by the consent orders. The appellants’ answer was, in substance, that the purpose of the orders was to provide for payment of the tax debt incurred by Mr Grimaldi from the property which was the subject of the restraining order, regardless of another party having relevant interests in the property. Accordingly, unless the appellants were entitled to be heard before the consent orders were made they were at risk of losing their property because they had no opportunity to assert their interest in the property, prior to its disposal in accordance with the orders.
The fact that the “further matters” were noted by the Court may have little bearing on the appellants’ challenge, but they are relevant to an understanding of the legislative scheme and the steps which will need to be taken before the interests of the appellants are adversely affected. Thus, although s 29 is not formulated in terms which require the Commission to make an application, the effect of sub-s 29(4) means that the definitions in ss 7 and 8 will not have any automatic operation, nor will they permit property to be disposed of in order to satisfy a proceeds assessment order, absent a declaration by the Court. If s 29(3) is not determinative of the entitlement of the appellants to have notice of an application under that section, nevertheless, in circumstances where the property is in the name of the appellants, it will generally be expected, under general law principles, that they will obtain notice of the application, as they appear to have done. This, in substance, is the statutory mechanism for resolving disputes as to the availability of property to satisfy the interests of one individual rather than another. At least by inference, the Public Trustee will not be able to dispose of property to satisfy a proceeds assessment order absent a further order from the Court. Again, there may not be an express statutory guarantee to protect the interests of the appellants, but the Public Trustee would presumably be at risk if it sought to give effect to an order by disposing of interests obtained from named individuals in circumstances where no application under s 29 had been made and determined.
The precise effect of these provisions was not discussed in the course of the appeal. Nevertheless, they provide an answer to the appellants’ first four grounds of challenge. Accepting that there was a dispute as to who in fact had effective control of interests in the property the subject of the proceeds assessment order, that dispute could be, and was proposed to be, litigated by the seeking of declarations pursuant to s 29 of the Recovery Act. The statute provides for the disposal of property in accordance with a declaration by the Court identifying whether the party subject to a proceeds assessment order has effective control of the interests in the property.

It is not relevant for present purposes to determine the circumstances in which a person may be deemed to have an interest in property for the purposes of the Recovery Act, to the exclusion of others who may have such an interest under the general law: see Recovery Act, ss 7 and 8. Mr Grimaldi may have had interests in property under the general law, which was under the effective control of the appellants for the purposes of the Recovery Act, or vice versa. If Mr Grimaldi had effective control for the purposes of the Recovery Act, it would be open to the Court to make an order under s 27 for the purposes of a payment to the Treasurer, in order to allow a payment by the Treasurer to the Australian Taxation Office, even though, under the general law, the appellants had interests in the property which might otherwise have allowed them to dispose of the property.
It follows that the making of the consent orders, and in particular orders 9 and 10, did not deprive the appellants of their interests in the property, nor did it deprive them of an opportunity to argue that those interests were not the subject of effective control by Mr Grimaldi. It not being suggested that they were prejudiced in any other way, the claim that they were denied procedural fairness by the making of the consent orders has not been made good.
It does not necessarily follow that they did not have standing to challenge the making of the consent orders in this Court. It is at least arguable that a right of standing to appeal against a decision in proceedings to which one is a party is more extensive than the right to be heard in relation to the making of the orders sought to be challenged. In any event, it is not necessary to resolve this question, as it is appropriate to dispose of the present appeal, which has been fully argued, on the merits.

Registration of orders in New Zealand

The third order sought on the notice of motion seeks to undo the consequence of the registration of orders made by Hislop J on 25 October 2008 in the High Court of New Zealand. Again, however, the only jurisdictional basis upon which this Court was invited to intervene was the notice of appeal brought from the orders of Hislop J. Once that appeal had been discontinued, the jurisdictional basis for such an order was gone.
The form of the order was, in any event, misconceived. What seems to have been intended was that, the New Zealand registration having been achieved pursuant to a request by the Commission to the Attorney-General for New Zealand, this Court could order the Commission to request the Attorney-General for New Zealand to effect the cancellation of the registration of the judgment. Whether or not the Court should, in an appropriately constituted proceeding, take that step would depend upon the powers and obligations of the Commission under the relevant statutory scheme, to which no reference was made in these proceedings.
It seems likely that the steps taken to register the restraining order in New Zealand were taken pursuant to the Mutual Assistance in Criminal Matters Act 1987 (Cth), s 32. That empowers Australia to request an appropriate authority in a foreign country to make arrangements for the enforcement of “an Australian restraining order”. That phrase encompasses a restraining order made “under Australian law” which is in turn defined to mean “the laws of the Commonwealth, the States and the Territories”: s 3. Nevertheless, for this Court to make an order directing the Commission to take some specific step requires demonstration of an obligation on the part of the Commission to take that step, as well as a power available to it in that regard. The powers and functions of the Commission are to be found in the New South WalesCrime Commission Act 1985 (NSW) (“the Commission Act”). The Court was not taken to that Act. The Commission also has functions conferred on it under the Recovery Act: see Commission Act, s 6(1A).
Again, the argument not having been fully articulated, this Court may proceed on the basis that:
(a)the Commission, through a Commonwealth officer, has instigated the commencement of proceedings in New Zealand which resulted in the registration of a restraining order issued on 25 October 2008 in the High Court of New Zealand;
(b)the order of 25 October 2008 was invalid and should not have been the subject of a request for registration;
(c)where, or alternatively whether or not, the orders the subject of registration in New Zealand have been set aside,
the Commission is under an implied obligation to take steps to have the registration cancelled.
On one view, this Court would have appellate jurisdiction to make such an order where it had set aside the restraining orders concerned. As already noted, that, so far, is not the case. Alternatively, the Court might have jurisdiction (and indeed a single judge might have jurisdiction) to make an order in the nature of mandamus pursuant to s 65 or s 69 of the Supreme Court Act 1970 (NSW). That jurisdiction has not in terms been invoked.
Furthermore, the Court would not normally make an order against a statutory authority, requiring it to act in a particular way, unless there were some evidence to support the conclusion that the authority would not, or would not if requested, take the required steps. There is no such evidence before this Court.
There are other unexplored features of this case. If, as suggested above, cl 16 of the 2009 Amendment Act, Schedule 1, has legislative effect as a restraining order, a question would arise as to whether it constitutes an order “made under Australian law” for the purposes of the Mutual Assistance in Criminal Matters Act, always assuming that that is the Act under which registration was sought. If not, as may well be the case, it will be necessary to consider if there were any other basis for enforcement of a legislative order against property in New Zealand.
None of these questions having been adequately explored, or in some cases explored at all, it is not appropriate to make the order sought in the notice of motion in the discontinued appeal.
It may be thought unfortunate that, in circumstances where two companies claim they are being unlawfully restrained in relation to the use and disposal of their property, such matters cannot be resolved expeditiously. However, the difficulties raised above are not mere technicalities; they give rise to real questions as to whether the appellants are entitled to the orders they seek, or orders to similar effect. Nor is the public interest reflected in the legislation to be disregarded or overridden in circumstances where its operation remains in doubt.

Conclusions

The order dismissing proceedings 12212 of 2008 operated as between the appellants and the Commission; that order did not dispose of the proceedings against Mr Grimaldi nor did it discharge the consent orders.
The specific consent orders in issue on the third appeal were proceeds assessment orders made against Mr Grimaldi pursuant to s 27 of the Recovery Act. The constitutional validity of that provision being accepted by the appellants, the orders must stand unless set aside or discharged for other reasons.
The consent of Mr Grimaldi provided a sufficient basis for the Registrar to make the impugned orders on the application of the Commission, without seeking to be satisfied as to the factual basis for such orders. The Court did not lack “jurisdiction” to make the orders.
In making the orders the Court expressly noted the intention of the Commission to take steps to obtain a declaration that Mr Grimaldi had effective control of the interests in property which might be realised to satisfy the orders. The Commission has made such an application. There is no reason to suppose that the appellants will not have an opportunity to contest an allegation that Mr Grimaldi has effective control of the relevant interests in property. That is the matter which was sought to be raised by the appellants in opposition to the making of the consent orders. The appellants have not been deprived of the opportunity to make such submissions. They were not denied procedural fairness in the making of the consent orders.
For these reasons, the consent orders should not be set aside.
The appellants have not made good their claim, apparently seeking to invoke the original jurisdiction of this Court, for an order directing the Commission to take steps to have the registration of the restraining orders made by Hislop J discharged.
The discontinuance of the second appeal was noted at the commencement of the hearing in this Court. It is appropriate that the Court formally grant leave to appeal and now make an order that the appeal be dismissed, with no order as to costs.
The third appeal related to interlocutory orders made by a Registrar of the Court by consent. No point is taken that an appeal from those orders should not have come directly to this Court, but the appellants require leave. The following orders should be made:

In matter No 40386/08:
(1)          Grant leave to appeal;
(2)          Dismiss the appeal, with no order as to costs.
In matter No 40283/09:
(1)          Grant leave to appeal to this Court.
(2)Direct the appellants to file a notice of appeal amended so as to include the orders sought in the notice of motion.

(3) Dismiss the appeal.
(4)Order the appellants to pay the respondent’s costs of this proceeding in this Court.

McCLELLAN CJ at CL: I agree with Basten JA.
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LAST UPDATED:
19 March 2010