Le v The Australian Capital Territory

[1998] FCA 38

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 8 OF 1998

BETWEEN:

NHAN HUU LE
APPLICANT

AND:

THE AUSTRALIAN CAPITAL TERRITORY
FIRST RESPONDENT

PUBLIC TRUSTEE FOR THE AUSTRALIAN CAPITAL TERRITORY
SECOND RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

27 JANUARY 1998

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 8 OF 1998

BETWEEN:

NHAN HUU LE
APPLICANT

AND:

THE AUSTRALIAN CAPITAL TERRITORY
FIRST RESPONDENT

PUBLIC TRUSTEE FOR THE AUSTRALIAN CAPITAL TERRITORY
SECOND RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

27 JANUARY 1998

WHERE MADE:

CANBERRA

EX TEMPORE REASONS FOR JUDGMENT

This application by Nhan Huu Le for an injunction against the Australian Capital Territory, the Public Trustee of the Australian Capital Territory is misconceived.  Nonetheless, as I will indicate, the goad to seeking curial relief does, on the evidence before me, reflect adversely on the Public Trustee.  The background circumstances of this application can be stated shortly. 

On 11 January 1997 a conviction in respect of drug trafficking was recorded against Phuc Huu Le who, I understand, is the present applicant's son. In consequence of an application then made by the Director of Public Prosecutions for the Australian Capital Territory, Cooper J, sitting as a judge of the Supreme Court of the ACT, on 28 November 1997 made a restraining order under section 45 of the Proceeds of Crime Act 1991 (ACT) in relation to real property of which the applicant is a registered proprietor.

In December 1997 the applicant took proceedings under section 51 of the Proceeds of Crime Act seeking, to quote the application, “the discharge or variation of the restraining order.” That application was refused on 23 December 1997 by Higgins J. I am unaware of the basis of its refusal. An appeal, having previously been lodged by the DPP in respect of other of the orders made by Cooper J - there was a variety of properties in respect of which restraining orders were sought - the present applicant, on 7 January 1998 cross-appealed in that proceeding against the section 45 order made against the property of which he the was registered proprietor.

That appeal and cross-appeal have been set down for hearing in the March sittings in Canberra in the Full Court of this court. I would note that at no stage thereafter was application made to stay Cooper J's order pending the hearing and determination of the cross-appeal. On 11 January 1998, by virtue of the self-operating provisions of section 28(1) of the Proceeds of Crime Act, the applicant's property, the subject of the restraining order was forfeited to the ACT. I would note in passing that the ACT is now the registered owner of the property.

At the time of the filing of the cross-appeal solicitors for the applicant sought an undertaking from  the Attorney-General of the ACT that the subject property would not be disposed of pending finalisation of that appeal.  The Attorney-General gave such an undertaking to the applicant by letter on 9 January.  That letter went on:

“The acknowledgment letter from my office in no way prevents the Public Trustee from exercising all rights as the property manager on behalf of the Territory that are permitted by law except, for the time being, a sale of the property.

As you are aware, the Public Trustee is responsible for the administration of the forfeited property. At this time, your clients will have no exclusive right of possession of the property after 11 January 1998 and the Public Trustee is free to make whatever arrangements she determines in accordance with the Proceeds of Crime Act 1991.

I am advised that, since receiving the acknowledgment letter from my office, you have advised the Director of Public Prosecutions that you will be advising your clients not to vacate possession of the property.  With respect, that is not related to the undertaking given.  I have undertaken not to direct the disposal of the property while the appeal is being dealt with, but no such undertaking to determine the administration arrangements for the property has been sought from me, or is being given, by me.  If ordered to by the Territory, you cannot assume undertakings provided by my office give your clients any immunity from such action.”

On the same day the Public Trustee gave the applicant notice to vacate the premises on or before 27 January 1998.  No reason at all was provided to the applicant for this notice other than that the Public Trustee was “the Territory's legal representative in the matter”.  The applicant sought reconsideration of the decision indicating the cross-appeal's hearing was imminent;  that considerable expense would be incurred in vacating;  and that Federal Court proceedings would be issued if the Public Trustee persisted in the decision, to restrain enforcement of the notice to vacate. 

The Public Trustee re-affirmed the decision.  Again, it gave no reason for its decision other than it was asserting the ownership rights of the Australian Capital Territory.  It appears entirely to have escaped the Public Trustee that because of the appeal it might be evicting a person who was later found to be entitled to the property.  No reference at all was made by the Public Trustee to the appeal or its imminence.  Accordingly, and relying upon the cross-vesting legislation the applicant has sought injunctive relief in this court, the principal orders sought being -

“7.That the Respondents, their servants and agents, be restrained until further order, or until Appeal Matter Number AG 98 of 1997 in the Federal Court of Australia is heard and determined, from taking any action to remove:

(a)       Nhan Huu Le;
  (b)       Cuc Thi Nguyen;  or
  (c)       any other current occupant

from the residence situate at 53 Macdowell Street, Evatt, Canberra, ACT, more particularly described as Block 21, Section 70, Deposited Plan 4881, Certificate of Title Volume 721 Folio 1.

8.        That the Respondents, their servants and agents be restrained until further order, or until Appeal Matter Number AG 98 of 1997 in the Federal Court of Australia is heard and determined, from doing any act, or taking any steps, to change the locks or restrict access to the property situate at 53 MacDowell Street, Evatt by the said Nhan Huu Le, Cuc Thi Nguyen and other occupants.”

The difficulty that confronts me in this matter is essentially one of timing. If, prior to 11 January when the forfeiture took effect, the applicant had brought proceedings under Order 52 rule 17 of the Federal Court Rules for a stay of the restraining order pending the hearing of the appeal then, provided the factors customarily taken into account by a court in the award of a stay led to the grant of such a stay, it may well have been the case that the effect of the restraining order would have been suspended and a forfeiture in consequence could not take effect. I express no concluded opinion upon that matter because it does involve a distinct and difficult question as to what would be the effect, if at all, of any stay order in the circumstances having regard to the language and operation of section 28 of the Proceeds of Crime Act.

If application had been made after 11 January for a stay of the further putting into effect of the forfeiture pending the determination of the appeal, it would seem to me that, irrespective of the difficulties that might have arisen in relation to staying the restraining order as such, the principles applied to the award of stay would have led in the present circumstances inevitably to the refusal of a stay.  The basis for that stay would have been, subject to considerations about the merits of the appeal, that not to award a stay would prevent the applicant from enjoying the fruits of judgment in the event of a successful appeal.  Given, as I have noted, the undertaking given by the Attorney-General that the subject property will not be disposed of pending the finalisation of the appeal, no basis would exist in the circumstances for the grant of a stay to protect the subject matter of the appeal.  It has been protected by the undertaking given by the first law officer.

Mr Whitelaw, appearing for the applicant, has argued that I have a general jurisdiction in any event under section 23 of the provisions of the Federal Court Act to grant injunctive relief in this matter.  Even if I were to assume that there otherwise existed grounds for the award of an injunction, for my own part, given that the injunction relates to what is in effect the actions of a third party, i.e. the Public Trustee exercising its responsibilities under legislation, it would seem to me that, in light of the undertaking that has been given by the Attorney-General to preserve the subject matter of the property, the case would not be an appropriate one for the court to exercise such power as it may possess under section 23.  Any such injunctive relief would go further than is necessary to protect the rights of the applicant because it would go further than is necessary to protect the subject matter of the appeal.  The appropriate body of principles which should be applied analogically to the question of injunctive relief in circumstances such as the present are those which relate to the grant of a stay. 

As and from 11 January the property has been forfeited to the Territory and the Territory now is the full legal and beneficial owner of it.  It is the case that, if the applicant is successful in its cross-appeal, the forfeiture will in the event be found to have been no effect though no argument has been addressed to me on the likelihood of success of the cross-appeal.  What is the case is that the right that is being exercised by the Public Trustee is the right being exercised by the legal owner of property against a person who for the moment has no beneficial estate or interest, who has no contractual right of occupation, and who for the moment would appear to be no more than a tenant of will. On the material placed before me no actual or apprehended impropriety by the Public Trustee in the exercise of her powers under The Proceeds of Crime Act or of the Public Trustee Act has been demonstrated. 

In these circumstances and bearing in mind the comments I have earlier made in relation to a stay, the case does not appear to me to be one in which any available ground has been made out on which I could grant the injunctive relief that is sought.  I did indicate in the course of the hearing of this matter that the appropriate basis for challenge, if challenge is to be made to the Trustee's decision, probably lay elsewhere. 

Since the hearing this morning the applicant has sought to file - again under the cross-vesting legislation - an application for judicial review of the decision of the trustee.  For reasons which I intimated at the time, I was unprepared to allow that application to be filed in court.  It did seem to me not to be an appropriate matter in which this court should accept jurisdiction. 

In the event I am left in the position in which I should dismiss the application.  Having said that, it is appropriate though regrettable to comment that, given (1) the absence of any explanation by the Public Trustee of its actions other than the submission from the bar table that the Public Trustee was acting in its administration of the property and perhaps putting into effect policy, whatever that term may mean;  (2) given the undertaking of the Attorney-General that the property would not be sold pending the hearing of the appeal; and, (3) given that the appeal is to be set down for hearing in the March sittings of the Full Court in this case; the actions of the Public Trustee appear to be harsh in the circumstances.

For my own part, notwithstanding that the Public Trustee is not a party to the appeal, the property the subject matter of the appeal is the property the Public Trustee is administering.  The Public Trustee is thus sufficiently associated with the appeal as would make it appropriate for it to act in a fashion similar to a public body which was itself a litigant in those proceedings.  I have referred at some length in a recent decision to the responsibility of fair dealing of public officials - I refer to the judgment in Hughes Aircraft Systems International v Airservices Australia 146 ALR 1. I will not repeat my observations here.

Without considering the possible merits of a cross-appeal it does seem to me to be regrettable that a public official would act without explanation in a matter of this variety.  It may well be that there are perfectly appropriate reasons for its so acting.  It is a pity in an environment where one would expect the practice of open government that that has not occurred either in relation to the applicant or to this court. 

I dismiss the application.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:  
Dated:            2 February 1998

Counsel for the Applicant:                 C Whitelaw
Solicitor for the Applicant:                Tetlow Jensen and Doyle
Counsel for the Respondent:             H Jorgenson
Solicitor for the Respondent:             ACT Government Solicitor
Date of Hearing:  27 January 1998
Date of Judgment:  27 January 1998