Ng v Commissioner of the Australian Federal Police

[2019] WASCA 195

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   NG -v- COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE [2019] WASCA 195

CORAM:   MURPHY JA

MITCHELL JA

HEARD:   25 NOVEMBER 2019

DELIVERED          :   25 NOVEMBER 2019

PUBLISHED           :   29 NOVEMBER 2019

FILE NO/S:   CACV 40 of 2019

BETWEEN:   VOON MEI NG

First Appellant

BYOUNG JU CHA

Second Appellant

AND

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   KENNETH MARTIN J

File Number             :   CIV 3071 of 2018

Catchwords:

Proceeds of crime - Practice and procedure - Power of the court to grant interlocutory relief pending determination of the appeal - Conferral of federal jurisdiction - Whether interlocutory relief appropriate in the circumstances - Whether appeal would be rendered nugatory - Constitutional law - Whether arguable case that an ex parte examination order made under s 180 and s 182 of the Proceeds of Crime Act 2002 (Cth) is inconsistent with Chapter III of the Commonwealth Constitution

Legislation:

Proceeds of Crime Act 2002 (Cth), s 180, s 182, s 198, s 314, s 319

Result:

Application dismissed

Category:    B

Representation:

Counsel:

First Appellant	:	In person
Second Appellant	:	In person
Respondent	:	G D Cobby SC

Solicitors:

First Appellant	:	In person
Second Appellant	:	In person
Respondent	:	Australian Federal Police - Proceeds of Crime Litigation

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

AD v Commissioner of the Australian Federal Police [2018] NSWCA 89; (2018) 97 NSWLR 588

Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 265 A Crim R 317

Commissioner of the Australian Federal Police v Ng [2019] WASC 222

Commissioner of the Australian Federal Police v Ng [No 3] [2019] WASC 304

Director of Public Prosecutions (Cth) v Kamal [2011] WASCA 55; (2011) 248 FLR 64

Easterday v The State of Western Australia [2005] WASCA 105; (2005) 30 WAR 122

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

Engwirda v The Owners of Queens Riverside Strata Plan 55728 [2019] WASCA 190

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

H A Bachrach Pty Ltd v The State of Queensland [1998] HCA 54; (1998) 195 CLR 547

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319

Jebb v Superior Lawns Pty Ltd [2018] WASCA 123

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287

Nguyen v Commissioner of the Australian Federal Police [2014] QCA 293; (2014) 292 FLR 10

Northern Territory v Griffiths [2019] HCA 7; (2019) 93 ALJR 327

Nykredit Mortgage Bank plc v Edward Erdman Group Ltd [No 2] [1998] 1 All ER 305

Onley v Commissioner of the Australian Federal Police [2019] NSWCA 101; (2019) 367 ALR 291

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1

Ruzehaji v Commissioner of the Australian Federal Police [2015] SASCFC 182; (2015) 124 SASR 355

Tait v The Queen (1962) 108 CLR 620

Woolworths Ltd v Strong [No 2] [2011] NSWCA 72; (2011) 80 NSWLR 445

REASONS OF THE COURT:

Summary

1. The appellants, Ms Ng and Mr Cha, claim interests in property which is subject to restraining orders made under the Proceeds of Crime Act 2002 (Cth) (Act).  They are also subject to examination orders made under that Act, pursuant to which notices requiring their attendance for examination have been issued.  These orders were made on 7 February 2019 without notice to the appellants.

2. Shortly prior to the appointed date for the examinations, the appellants applied to this court for a stay of the examination orders.  We heard the application urgently on the day before the examinations were to commence.  At the conclusion of the hearing, we ordered that the application for a stay be dismissed and said we would publish our reasons for doing so at a later time.  These are our reasons for dismissing the stay application.

Procedural history

1. On 7 February 2019, Kenneth Martin J relevantly made orders restraining dealings in specified property in the name of, or under the effective control of, the appellants. Those orders were made under s 18 and s 19 of the Act. At the same time, the judge made examination orders in respect of the appellants and a third party under s 180 of the Act. These orders were made in closed court in the absence of, and without notice to, the appellants. His Honour gave short oral reasons for making those orders.

2. On 18 February 2019, the appellants relevantly applied for a stay of the examination orders, under s 319 of the Act.

3. On 6 March 2019, the appellants applied for an order that the restraining orders had ceased to have effect under s 45(2) of the Act. That application was dismissed by Tottle J on 8 March 2019.[1]  An appeal against Tottle J's decision of 8 March 2019 was subsequently instituted but was dismissed by consent.

   [1] Commissioner of the Australian Federal Police v Ng [2019] WASC 222.

4. On 20 March 2019, the appellants filed the appeal notice in the present appeal against the restraining orders and the examination orders made on 7 February 2019.  The appeal notice seeks leave to appeal and an extension of time in which to appeal. 

5. On 6 April 2019, the appellants made an application in the primary proceedings for the revocation of the restraining orders under s 42 of the Act. This application was subsequently discontinued.

6. On 25 and 26 July 2019, Tottle J heard the stay application filed on 18 February 2019.  On 23 August 2019, the application was dismissed for written reasons published by Tottle J.[2]  There has been no appeal against that decision.

   [2] Commissioner of the Australian Federal Police v Ng [No 3] [2019] WASC 304.

7. On 24 September 2019, an examiner issued an examination notice under s 183 of the Act requiring Mr Cha to attend for examination and produce certain documents on 26 and 27 November 2019.[3]  Although it is not in evidence before us, it appears to be common ground between the parties that a similar examination notice has been issued to Ms Ng.

   [3] Annexure D to the affidavit of Mr Cha sworn 20 November 2019.

8. On 6 November 2019, this court made orders in effect allowing the appellants, who are self-represented, to amend their grounds of appeal and submissions in support of the appeal.  The appellants did not seek, and were not granted, a stay of the examination orders at that time.

9. On 20 November 2019, the appellants filed an application in the appeal seeking a stay of the examination orders until the determination of the appeal.  The application was amended on 25 November 2019 to seek an order that the documents specified in the examination notices be filed in this court under seal and provided to the respondent if the appeal is dismissed.  At the hearing of the appeal, the appellants indicated that this additional order was only proposed in the event that a stay of the examination orders was granted.

10. This court heard and dismissed the application for a stay, as amended, on 25 November 2019.

Statutory context

1. Below we give a broad overview of the provisions of the Act which are most relevant to the present application.

Restraining orders

1. Sections 18 and 19 of the Act provide that a court with proceeds jurisdiction must make a restraining order when certain conditions are satisfied. In general terms, s 18 applies where there are reasonable grounds to suspect that a person has committed a 'serious offence' as defined. Section 19 relevantly applies where there are reasonable grounds to suspect that property is the proceeds of an indictable offence or is an instrument of a serious offence. Section 25 provides for a proceeds of crime authority to apply for a restraining order.

2. Generally, s 26 of the Act requires an application for a restraining order to be made on notice to the owners or other persons having an interest in the property sought to be restrained. However, s 26(4) and s 26(5) of the Act provide for an exception to that requirement in the following terms:

   (4)The court must consider the application without notice having been given if the *responsible authority requests the court to do so.

   (5)The court may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons.  The court may also specify the time and manner in which the notice is to be given or published.

3. Section 42 of the Act provides for a person who was not notified of the application for a restraining order to apply to the court to revoke the order. The revocation application must generally be made within 28 days after the person is notified of the order. Under s 42(5), the court may revoke the restraining order if satisfied that:

   (a)there are no grounds on which to make the order at the time of considering the application to revoke the order; or

   (b)it is otherwise in the interests of justice to do so.

Examination orders

1. Section 180 of the Act relevantly provides that, if a restraining order is in force, the court that made the restraining order may make an order for the examination of any person. The persons who may be the subject of an examination order include a person whose property is, or a person who has or claims an interest in property that is, the subject of the restraining order. Under s 180(2), an examination order ceases to have effect if the restraining order to which it relates ceases to have effect.

2. Section 182 of the Act makes the following provisions in relation to applications for examination orders:

   (1)An *examination order can only be made on application by the *responsible authority for the *principal order, or the application for a principal order, in relation to which the examination order is sought.

   (2)The court must consider an application for an *examination order without notice having been given to any person if the *responsible authority requests the court to do so.

3. Under s 183(1), an approved examiner may, on application by the responsible authority, give to a person who is the subject of an examination order a written notice for the examination of the person. Other provisions provide for the form and content of an examination notice. Under s 187 the person may be examined on oath or affirmation by the approved examiner and the responsible authority. Section 188 requires that the examination take place in private and limits the persons who are entitled to be present at the examination. A person commits an offence against s 199 of the Act if present at an examination when not entitled. Section 191 requires the approved examiner to make a record of the examination if the person being examined, or the responsible authority, so requests. Section 193 empowers the examiner to give directions preventing or restricting disclosure to the public of matters contained in answers given or documents produced in the course of the examination. Section 201 creates an offence of breaching such a direction.

4. Sections 195 and s 196 create offences relating to an examination, including failing to attend at the time and place specified in the examination notice and failing to answer certain questions or produce certain documents. Section 197 appears, in effect, to abrogate privilege against self-incrimination and legal professional privilege in an examination. Section 198 limits the admissibility of information obtained at an examination in the following terms:

   An answer given or document produced in an *examination is not admissible in evidence in civil or criminal proceedings against the person who gave the answer or produced the document except:

   (a)in criminal proceedings for giving false or misleading information; or

   (b)in proceedings on an application under this Act; or

   (c)in proceedings ancillary to an application under this Act; or

   (d)in proceedings for enforcement of a *confiscation order; or

   (e)in the case of a document—in civil proceedings for or in respect of a right or liability it confers or imposes.

Stay of proceedings

1. Section 319(1) of the Act empowers a court to stay proceedings under the Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so. Section 319(2) provides that a court must not stay proceedings on certain grounds, which include the ground that criminal proceedings may be instituted against the person the subject of the proceedings. Section 319(6) identifies certain matters to which the court must have regard in considering whether a stay of the proceedings is in the interests of justice.

Conferral of jurisdiction

1. Section 314(1) of the Act relevantly vests jurisdiction in the Supreme Court with respect to matters arising under the Act. It does not appear to be in contest that in the present case the Supreme Court has 'proceeds jurisdiction' as defined in s 335 of the Act.

Power of Court of Appeal to grant a stay

1. A question arose at the hearing of the application as to the source of this court's power to grant a stay of the examination order.  In our view, the power arises in the following manner, which is analogous to the approach taken by this court in relation to the Corporations Act 2001 (Cth) in Jebb v Superior Lawns Australia Pty Ltd.[4]

   [4] Jebb v Superior Lawns Pty Ltd [2018] WASCA 123 [58] - [62].

2. Section 314 of the Act invests this court with federal jurisdiction. This investment of federal jurisdiction includes appellate jurisdiction within the provisions made for it by this State's judicial system.[5]  The relevant aspect of this State's judicial system is the provision for the Court of Appeal division of the Supreme Court to hear and determine appeals from a judge, subject to presently immaterial exceptions.[6]

   [5] Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287 [9].

   [6] Section 7 and s 58(1)(b) of the Supreme Court Act 1935 (WA).

3. The court on which federal jurisdiction is conferred is a Supreme Court of a State, continued as a superior court of record by s 6 of the Supreme Court Act 1935 (WA). By s 16 of that Act, the court is a court of common law and equity. Implicit in the establishment of such a court, and its conferral with federal jurisdiction, is the conferral of power to make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of its jurisdiction.[7]  That implicit power, which inheres in the establishment of a superior court of record, extends to the making of interim orders to protect the exercise of the court's appellate as well as its general jurisdiction.[8]  That is an aspect of the principle that:[9]

   [T]he grant of power carries with it everything necessary for its exercise.  That is, the conferral of statutory jurisdiction or powers on a court carries with it such powers as are incidental and necessary to the exercise of the jurisdiction or powers so conferred.  In this context 'necessary' is used in the sense of matters which are reasonably required or legally ancillary (as opposed to 'essential') to the exercise of the jurisdiction or powers. (citations omitted)

   [7] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 [35].

   [8] Tait v The Queen (1962) 108 CLR 620, 623 - 624.

   [9] Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 265 A Crim R 317 [161].

4. Jurisdiction to make a stay order under s 319 of the Act is conferred on the Supreme Court. The power conferred by s 319 is, in our view, available to be exercised by the Court of Appeal division of the Supreme Court where to do so is necessary to ensure the effective exercise of its appellate jurisdiction. In doing so, the court would be exercising its appellate jurisdiction.

5. It is unnecessary to determine whether a power to grant a stay of the examination orders might arise independently of s 319 of the Act. The critical factors which inform the exercise of the court's general power to grant a stay pending determination of the appeal are:[10]

   (1)whether the appeal would be rendered nugatory if a stay is not granted;

   (2)whether the appeal has reasonable prospects of success so as to result in the grant of relief to the applicant for a stay; and

   (3)whether the balance of convenience lies in favour of the grant of a stay.

   Those same factors will inform the question of whether it is in the interests of justice for this court to grant a stay pending determination of the appeal for the purposes of s 319(1) of the Act.

   [10] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].

Whether the appeal would be rendered nugatory

1. We are not satisfied that a stay of the examination orders is necessary to preserve the subject matter or integrity of the appeal, or avoid practical difficulties in the grant of relief on appeal. 

2. So far as the appeal seeks to impugn the making of the restraining orders, it would not be rendered inutile by the conduct of the examinations.

3. So far as the appeal seeks to impugn the making of the examination orders, the appellants will not be left without remedy if the appeal is allowed and the examination orders are set aside.  The respondent accepted that if the appeal were to be allowed and the examination orders were to be set aside, orders could be fashioned requiring those persons who had access to the materials derived from the examination to take no further part in the primary proceedings.[11]  In addition, orders could be made restricting the use and disclosure of confidential information obtained in any examination conducted pursuant to an examination order which this court ultimately determines should not have been made.  If the appeal were to be successful and the examination orders were to be set aside, the making of the above additional orders would be an aspect of the power, normally implicit in the conferral of appellate jurisdiction, to make orders unravelling the practical consequences of implemented orders which are set aside on appeal.[12]

   [11] Respondent's Outline of Submissions filed on 22 November 2019, par 21.

   [12] Nykredit Mortgage Bank plc v Edward Erdman Group Ltd [No 2] [1998] 1 All ER 305, 314 - 315, referred to in Northern Territory v Griffiths [2019] HCA 7; (2019) 93 ALJR 327 [136] and applied in Woolworths Ltd v Strong [No 2] [2011] NSWCA 72; (2011) 80 NSWLR 445 [33] - [35]. This principle was applied by this court in Ardrey [124] - [126], [160] - [162], Easterday v The State of Western Australia [2005] WASCA 105; (2005) 30 WAR 122 [34] - [35] and Engwirda v The Owners of Queens Riverside Strata Plan 55728 [2019] WASCA 190 [40], [162].

Whether the appellants have an arguable case

1. Of the five amended grounds of appeal, only two appear to us at this preliminary stage to be reasonably arguable.  However, at this preliminary stage, neither of the arguments appear to us to be particularly strong.  We turn to identify the arguments which have some prospects of succeeding and the potential hurdles which those arguments face.

Ground 2: reasons for proceeding ex parte

1. Ground 2 of the appellants' grounds of appeal is that Kenneth Martin J 'failed to give oral or written reason[s] for his decision as to why the examination order is required to be made ex parte'.

2. As noted above, the examination orders were made without notice to the appellants at the same time as the restraining orders were made.  In his transcribed ex tempore reasons for making the orders, Kenneth Martin J made the following observations as to the need to proceed ex parte:

   I'm also satisfied that it was appropriate for the matter to be brought on ex parte given the execution of the search warrants and the activity on the bank accounts, which was discernible in the period after the search warrants were executed.  On that basis, it seems to me there was a serious risk, particularly as regards the property other than the seized cash being dissipated, justifying the matter to be dealt with ex parte and in closed court.

1. These reasons make it readily apparent why it was considered necessary to make the restraining orders without notice to the appellants.  However, they do not indicate any reason why it was necessary for the examination orders to be made without notice to the appellants.  The restraining orders would have addressed the risk of dissipation of assets.  If the restraining orders had been made and then notice of the application for examination orders had been given to the appellants, there is no obvious prejudice to the integrity of the examination.  Of course, notice of the examination needed to be given to the appellants in any event so that they would be required to attend and produce the specified documents.  At the hearing of the stay application, senior counsel for the respondent was unable to identify any reason why the examination orders (as distinct from the restraining orders) needed to be made ex parte.

2. In Onley v Commissioner of the Australian Federal Police,[13] Basten JA (Meagher JA relevantly agreeing) observed:[14]

   There may be a question as to the need for an examination order to be made ex parte, rather than on notice. Section 182(2) requires the court to consider an application for an examination order made without notice, if the authority seeking the order requests the court to do so. However, circumstances which justify the making of an order will not necessarily justify the making of an order ex parte.

   [13] Onley v Commissioner of the Australian Federal Police [2019] NSWCA 101; (2019) 367 ALR 291.

   [14] Onley [310].

3. The majority in Onley also held that there was no power to set aside or vacate an examination order, whether made ex parte or not. The majority found that the only remedy available to the subject of an examination order made ex parte was to apply for a stay of the order under s 319 of the Act.[15]

   [15] Onley [317].

4. It is at least arguable that the power to make an examination order under s 180(1) is a discretionary power, which does not necessarily follow from the making or a restraining order. It is also arguable that, ordinarily, an examination order should not be made without hearing from persons adversely affected by the order, particularly where there is no capacity for the order to be set aside or varied. It is arguable that the requirement in s 182(2) - for the court to consider the application for an examination order made without notice - did not require the court to determine the application without first requiring notice be given to the appellants.  It is arguable that Kenneth Martin J's reasons did not address the question of why the making of examination orders ex parte was justified.

5. However, two potential hurdles facing the argument postulated above should be noted.

6. First, the ground of appeal attacks only the failure to give reasons and not the substantive decision to determine the application for examination orders ex parte.  It is at least arguable that the reasons (which must be read allowing for the fact that they were given ex parte in a matter with some urgency) do disclose the reasoning process adopted by the judge.  The reasons can be read as indicating that the judge proceeded on the basis that the application for restraining orders were properly determined ex parte and that the examination orders simply followed from the making of restraining orders.  If the reasons are read in that manner, they adequately explain the basis for making the decision, even if that basis may arguably be said to involve error. 

7. Secondly, even if Kenneth Martin J's decision to make examination orders was infected by error, it would ordinarily be a matter for this court to exercise the discretion according to law.  That is, this court would consider whether an examination order should be made in the appeal proceedings, in which both parties have been heard.  The difficulty facing the appellants is that the evidence and submissions before this court do not, on our provisional assessment at this preliminary stage, provide a basis for declining to make an examination order.  If this court, considering the matter afresh for itself, concluded that an application for examination orders should be granted then there would arguably be no basis for it to set aside the examination orders made by Kenneth Martin J.

8. Therefore, while ground 2 appears to us to be arguable, our preliminary view is that, on the material currently before this court, the prospects of this court setting aside the examination order do not appear to be strong.

Ground 3: Constitutional argument

1. The appellants' third ground of appeal is expressed in the following terms:

   Whether the Examination order made ex-parte is considered invalid because it is repugnant to the judicial process in a fundamental degree, where there is no capacity for respondent to apply for speedy dissolution.

2. Although this ground is not entirely clear, it would appear to raise the question of the validity of s 180 and s 182 of the Act insofar as they provide for the making of an examination order without notice being given to the person to be examined. The basis on which the provisions are said to be invalid appears to draw from the reasoning of Heydon J in International Finance Trust Co Ltd v New South Wales Crime Commission.[16]

   [16] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319.

3. International Finance was concerned with the validity of s 10 of the Criminal Assets Recovery Act 1990 (NSW). The general effect of that section was to require the Supreme Court of New South Wales to make a restraining order on an ex parte application which demonstrated reasonable grounds for suspecting that the restrained property was derived from serious criminal activity. The majority of the court construed the legislation as excluding the court's general jurisdiction to review and reconsider an ex parte order when sought by the person affected. Excluding property from the order required the restrained person to prove that it was more probable than not that the interest had not been acquired fraudulently or illegally, under s 25 of the New South Wales Act. Section 10 was held to be invalid because it engaged the Supreme Court in an activity repugnant to the judicial process in a fundamental degree.

4. International Finance was concerned with State rather than Commonwealth legislation, and applied the constitutional limitation on State legislative power identified in Kable v Director of Public Prosecutions (NSW).[17]  The relevant limitations on the power of the Commonwealth Parliament to provide for the exercise of the judicial power of the Commonwealth by this court are no less.[18] However, there are a number of distinguishing features between s 180 and s 182 of the Act and the provisions dealt with in International Finance. It is at least arguable that s 182 does not require the court to determine an application ex parte. The power to make an examination order would appear to lie in the discretion of the court. The mandatory aspects of the New South Wales legislation which arguably influenced the reasoning of French CJ, Gummow and Bell JJ in International Finance are, at least arguably, not found in the impugned provisions of the Act.

   [17] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

   [18] H A Bachrach Pty Ltd v The State of Queensland [1998] HCA 54; (1998) 195 CLR 547 [14].

5. The critical question for Heydon J in International Finance was whether it was possible for a defendant to apply for speedy dissolution of an ex parte restraining order once the defendant received notice of its grant.  His Honour concluded that it was the absence of a facility for speedy dissolution, rather than the mandatory nature of the power, which gave rise to the potentiality for extreme injustice in a fashion repugnant to the judicial process in a fundamental degree.[19]

   [19] International Finance [155] - [160].

6. By analogy, it may be argued in the present case that s 180 and s 182 empower, even though they do not require, the court to make an examination order without there being any provision to set aside the order once it is brought to the notice of the person to be examined. It may be argued that the Commonwealth Parliament cannot empower a court exercising federal jurisdiction to make such an order without hearing from a person adversely affected by the order, when the adversely affected person has no subsequent capacity to set aside the order.

7. While this is an available argument, there are a number of potential impediments to its acceptance.

8. First, it may be said that s 180 and s 182 are dealing with a significantly different subject matter to the legislation held invalid in International Finance. Sections 180 and 182 do not provide for dealings in property to be restrained in a process which may lead to its confiscation. Rather, s 180 and associated provisions are concerned with the compulsory examination of persons. Courts regularly issue subpoenas for the examination of witnesses and production of documents without first giving the witness an opportunity to be heard. The different subject matter of s 180 and s 182 might be regarded as a basis of material distinction from the subject of the legislation impugned in International Finance.

9. Secondly, even if there is no power to set aside an ex parte examination order, it might be argued a person can seek a permanent stay under s 319 of the Act which is an analogous remedy. The criteria for a stay under s 319 - that the court considers it to be in the interests of justice to grant a stay - might be broad enough to accommodate a permanent stay where there was material non-disclosure, or when additional evidence or submissions advanced by the applicant showed that the examination order should not have been made. The criteria identified in s 319(1) of the Act are much less onerous on the applicant for a stay than the requirements of s 25 of the New South Wales Act impugned in International Finance.

10. Thirdly, a constitutional challenge to the validity of s 182 of the Act on this ground was rejected by the Full Court of the Supreme Court of South Australia in Ruzehaji v Commissioner of the Australian Federal Police.[20]  Gray J (Peek and Nicholson JJ agreeing) dismissed the argument on this basis:[21]

    The circumstances that arise in considering the relevant provisions of the Proceeds of Crime Act are different to those under consideration by the High Court in International Finance Trust Co Ltd v New South Wales Crime Commission, another authority relied on by the defendants.  Importantly, there is no requirement on a court to determine an application for an examination order under s 182 of the Proceeds of Crime Act on an ex parte basis, but only to 'consider' such an application.  Further, there is no barrier to a person against whom an order is made applying to revoke or vary that order and relying on any material or arguments they wish in support of such an application. Finally, the grounds on which an application to revoke or vary an examination order made ex parte could include any failure to make full and frank disclosure in the ex parte application.  I reject the defendants' constitutional challenge. (emphasis added)

    [20] Ruzehaji v Commissioner of the Australian Federal Police [2015] SASCFC 182; (2015) 124 SASR 355.

    [21] Ruzehaji [84].

11. It might be argued that the approach to the construction of the Act adopted by the majority of the New South Wales Court of Appeal in Onley is inconsistent with the basis on which the constitutional challenge in Ruzehaji, emphasised in the above quotation, was rejected.  In response, it may be argued that this court should follow the actual decision in Ruzehaji as to the validity of s 182 of the Act unless it is convinced that the decision is plainly wrong.[22] However, the application of this principle may be open to debate where the decision is based on a construction of the Act which might be inconsistent with that adopted in New South Wales.

    [22] Cf Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135].

12. Fourthly, in Director of Public Prosecutions (Cth) v Kamal,[23] this court rejected a challenge to the provisions of the Act authorising a restraining order to be made ex parte. While there are some differences between those provisions and the provisions dealing with examination orders, they are cast in similar terms. Kamal was applied by the Court of Appeal of New South Wales in AD v Commissioner of the Australian Federal Police.[24]

    [23] Director of Public Prosecutions (Cth) v Kamal [2011] WASCA 55; (2011) 248 FLR 64.

    [24] AD v Commissioner of the Australian Federal Police [2018] NSWCA 89; (2018) 97 NSWLR 588 [90] ‑ [106].

13. It may also be noted that an argument along the above lines was considered but not resolved by the Court of Appeal of Queensland in Nguyen v Commissioner of the Australian Federal Police.[25]

    [25] Nguyen v Commissioner of the Australian Federal Police [2014] QCA 293; (2014) 292 FLR 10 [27] ‑ [32].

14. Having regard to all of the above matters, it appears to us that ground 3 is arguable, although at this stage we would not put it higher than that.

Balance of convenience

1. In our view, there is likely to be prejudice to the respondent if a stay is granted.  There is a risk of the destruction of documents and loss of memory with the passage of time.  That risk is not sufficiently ameliorated by the appellants' proposal to lodge documents with the court under seal.  On that approach, there would be no means for the respondent to ascertain if the documents identified in the examination notice had actually been produced.  The provision of documents to the court would not address concerns about memory loss.  There would also be a likely delay in the respondent seeking forfeiture of property the subject of the restraining order.

2. Mr Cha relies on a doctor's note that he suffers from various medical conditions and suffers some memory impairment, mild cognitive disorder and poor judgement.  He deposes that his memory problems are exacerbated by the loss of documents in two burglaries.  These matters do not provide a basis for staying the examination.  It is not suggested that Mr Cha is not capable of giving evidence, and the fact that he has sworn an affidavit, and the manner in which he made submissions at the hearing of the application, suggest the contrary.  Issues with memory and the loss of documents counts against, rather than in favour, of the grant of a stay as they suggest the risk of further loss of information if the examination is delayed.

3. There was also some debate before us as to whether there was any ongoing criminal investigation in relation to matters related to the current civil proceedings.  However, there is no evidence of the existence of any criminal investigation at this stage.  The appellants have not been charged with any criminal offence, and there is no suggestion that charges are imminent.

4. The appellants express concern that they may be required to incriminate themselves in the examinations. However, the Act provides for limits as to the admissibility and use of the information obtained in examination, and this court can make consequential orders of the kind noted at [30] above in the event that the appeal succeeds.

5. As to the matters referred to in s 319(6) of the Act, so far as they are relevant:

   (1)The policy of the Act is that proceedings under the Act should proceed as expeditiously as possible. That is a consideration which tends to count against the grant of a stay and the attendant delay it would produce (s 319(6)(a)).

   (2)The respondent would be prejudiced in the manner noted above if the examination orders were stayed (s 319(6)(c)).

   (3)Prejudice that the appellants may suffer if a stay is not granted can be addressed by consequential orders in the event that the appeal succeeds (s 319(6)(d)-(e)).

6. Overall, the balance of convenience favours the refusal of a stay.

Disposition

1. Having regard to all of the above matters, we were not satisfied that it was in the interests of justice to grant a stay of the examination orders pending the determination of the appeal.  Consequential orders can be made if the appeal is ultimately allowed which will prevent the appeal from being rendered nugatory.  While two of the grounds of appeal appear arguable, at this preliminary stage our provisional view is that the arguments are not particularly strong.  Overall, we assessed the balance of convenience to favour the refusal of a stay.  We therefore dismissed the appellants' application for a stay.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ET
Associate to the Honourable Justice Mitchell

29 NOVEMBER 2019