NSW Crime Commission v Ibrahim

[2002] NSWSC 791

CITATION:	NSW Crime Commission v Ibrahim & Anor [2002] NSWSC 791
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 10830/98
HEARING DATE(S):	22 & 23 July 2002 30 August 2002
JUDGMENT DATE:	6 September 2002
PARTIES :	New South Wales Crime Commission Romeo Shaul Ibrahim Maria Margherita Ibrahim
JUDGMENT OF:	Sperling J at 1

COUNSEL :	Mr I Temby QC for the Plaintiff Mr G Wendler for the Defendant
SOLICITORS:	Mr J M Giorgiutti for the New South Wales Crime Commission John D Weller & Associates Solicitors for the Defendant
CATCHWORDS:	Practice & procedure - ex parte order set aside - common justice: party not represented due to solicitor being unaware of the fixture notwithstanding that requirement as to notice fulfilled - irregularity: court not informed of solicitor's explanation for non-attendance
LEGISLATION CITED:	Criminal Assets Recovery Act 1990, s10, s22, s23, s25, s26 Supreme Court Rules 1970, Pt 4 r 30, Pt 40 r 9
CASES CITED:	Analby v Praetorius (1888) 20 QBD 764 Garrard v Email Furniture Pty Ltd (1992) 32 NSWLR 662 Grimshaw v Dunbar [1953] 1 QB 408 Taylor v Taylor (1978) 143 CLR 1
DECISION:	1. Orders made on 9 April 2001 set aside; 2. The respondent Commission to pay the applicants' costs of the motion; 3. Liberty granted to the respondent Commission to apply on two days notice, for reconsideration of the order for costs, such liberty to apply not to be exercised later than four weeks from today.

- 20 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Proceedings Of Crime List

Sperling J

Friday, 6 September 2002

10830/98 NSW Crime Commission v Ibrahim

Judgment

1 His Honour:

Legislation

2 So far as is presently material, the relevant provisions of the Criminal Assets Recovery Act 1990 (“the Act”) are as follows:

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.
… … …
(3) The Supreme Court must make the order applied for if the application is supported by an affidavit of an authorised officer stating that:
(a) in the case of an application in respect of an interest referred to in subsection (2) (a) the authorised officer suspects that the person has engaged in a serious crime related activity or serious crime related activities and stating the grounds on which that suspicion is based, and
(b) in the case of an application in respect of any other interest the authorised officer suspects that the interest is serious crime derived property because of a serious crime related activity or serious crime related activities of a person and stating the grounds on which that suspicion is based, and the Court considers that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion.
… … …
22 Making of assets forfeiture order
(1) If a restraining order is in force under Part 2, 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 subject to the restraining order when the assets forfeiture order takes effect.
(2) The Supreme Court must make an assets forfeiture order if the Court finds it to be more probable than not that the person whose suspected serious crime related activity, or serious crime related activities, formed the basis of the restraining order was, at any time not more than 6 years before the making of the application for the assets forfeiture order, engaged in:
(a) a serious crime related activity involving an indictable quantity, or
(b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.
… … …
(9) Notice of an application under this section is to be given to a person to whom the application relates and the person may appear, and adduce evidence, at the hearing of the application.
23 Effect of assets forfeiture order
(1) On an assets forfeiture order taking effect in relation to an interest in property:
(a) the interest is forfeited to the Crown and vests in the Public Trustee on behalf of the Crown, and
(b) if the person forfeiting the interest was in possession, or was entitled to possession, of the property, the Public Trustee may take possession of the property on behalf of the Crown.
… … …
25 Exclusion of property from restraining order and assets forfeiture order
(1) If an assets forfeiture order:
(a) has been applied for but not made a person whose interest in property might be subject to the order if made, or
(b) has been made a person whose interest in property was forfeited by the order,
may apply to the Supreme Court for an order (in this section called an exclusion order) excluding the interest from the operation of the assets forfeiture order or any relevant restraining order.
(2) The Supreme Court must not make the exclusion order applied for unless it is proved that it is more probable than not that the interest in property to which the application relates is not illegally acquired property.
… … …
(4) After an assets forfeiture order has been made, an application for an exclusion order may not be made by a person:
(a) if the person was given notice of the proceedings that led to the relevant restraining order or assets forfeiture order – unless it is made within 6 months after the assets forfeiture order took effect and leave to apply has been granted by the Supreme Court, or
(b) in any other case – unless it is made within 6 months after the assets forfeiture order took effect or the Supreme Court has granted leave to apply after that time.
… … …
26 Exclusion of the value of innocent interests from assets forfeiture order
(1) If it is proved that it is more probable than not that a specified proportion of the value of an interest in property that has been forfeited under an assets forfeiture order is not attributable to the proceeds of an illegal activity, the Supreme Court may:
(a) make a declaration to that effect, and
(b) order that the person who has forfeited the interest is entitled to be paid the proportion of the proceeds of sale of the interest that is specified in the declaration.
(2) Any such declaration is to be made on the basis of the extent to which the interest in property concerned was not, when it first became illegally acquired property, acquired using the proceeds of an illegal activity.
… … …
(4) After an assets forfeiture order has been made, an application for an order under this section may not be made by a person:
(a) if the person was given notice of the proceedings that led to the assets forfeiture order – unless it is made within 6 months after the assets forfeiture order took effect and leave to apply has been granted by the Supreme Court, or
(b) in any other case – unless it is made within 6 months after the assets forfeiture order took effect or the Supreme Court has granted leave to apply after that time.

Background

3 On 20 January 1998 Romeo Shaul Ibrahim was arrested on charges which included the supply of a prohibited drug (cocaine and cannabis).

4 On 1 April 1998 a restraining order was made pursuant to s10 of the Act in respect of all interests in property of the present applicant Romeo Shaul Ibrahim and specified interests in property of the present applicant Maria Margherita Ibrahim. The order was based on the suspected drug related activities of Mr Ibrahim.

5 By amended summons, filed on 1 April 1998, the Commission sought an assets forfeiture order pursuant to s22 of the Act as to those interests in property.

6 On 28 May 1998 Mr J D Weller, solicitor, filed an appearance on behalf of Mr and Mrs Ibrahim.

7 On 20 August 1999 Mr Ibrahim was convicted of supplying a prohibited drug (cocaine and cannabis).

8 On 12 March 2001 orders were made, in the absence of the applicants, that the Commission’s summons be listed for hearing on 9 April 2001 and that the Commission notify the applicants accordingly.

9 On 9 April 2001 assets forfeiture orders were made by Simpson J. There was no appearance on that occasion by or on behalf of Mr and Mrs Ibrahim. The associate’s note of her Honour’s orders is in the following terms:

Subject to the plaintiff filing an affidavit establishing notification to the defendant of today’s hearing date I make orders in accordance with the short minutes of order filed in court initialled by me.

The short minutes of order included the assets forfeiture orders.

10 Did her Honour give reasons for making those orders? In the course of final addresses at the hearing before me, the following exchange took place (Tr 33):

His Honour: Just pausing for a moment, is there a record of what transpired before Simpson J?

Wendler: Only the associate’s record of proceedings which I alluded to earlier and identified as annexure C to Mr Weller’s affidavit.

Temby: Could I draw your Honour’s attention to paragraph 18 of Mr Davis’ affidavit which relates what happened in court that day. Your Honour might find that more helpful.

His Honour: Is there a judgment by her Honour?

Wendler: There are only the short minutes of order.

Mr Temby did not take exception to the court receiving information from the bar table in this way.

11 Paragraph 18 of Mr Davis’ affidavit is as follows. It contains no reference to a judgment, in the sense of reasons for decision having been given.

On 9 April 2001, the Commission tendered to the Court a certificate of conviction of the First Applicant, which revealed that the First Applicant had been convicted of 2 counts of supply prohibited drug. The Commission also tendered to the Court the Affidavit sworn by Nicholas Harrison on 30 September 1999 that revealed that the offences involved indictable quantities. At that time, the Court made orders pursuant to section 22 of the Act that the interests of the First Applicant and the Second Applicant in the property specified in the restraining order be forfeited to, and vest in, the Crown. The Court also made orders pursuant to section 27(1) of the Act that judgement be given for the Commission on its claim for proceeds assessment order against the First Applicant and the Second Applicant, for an amount to be assessed (“the forfeiture orders”).

12 There are no reasons for decision on the court file.

13 I take it to be common ground that her Honour made the order of 9 April 2001 as recorded in the associate’s record without giving reasons for doing so. (That, of course, is not to suggest that reasons for decision were required.)

14 The orders made on 9 April 2001 were conditional. They were subject to an affidavit being filed establishing notification to the defendants of the hearing on 9 April 2001. The affidavit by Ms K Watson sworn 10 April 2001 was filed on 11 April 2001. It is in the following terms, so far as is material:

A search of records held by the Commission revealed that at about 9.46am on 14 March 2001 I faxed a letter to the Ibrahim’s legal representative, John Weller, on facsimile number 02 6685 5853 (this facsimile number having been provided to the Commission by John Weller’s office), advising that this matter was listed for hearing on 9 April 2001. A copy of that letter is annexed and marked with the letter “B”.

A copy of a letter dated 13 March 2001 addressed to Mr J D Weller was annexed to the affidavit. It reads as follows:

I note the above matter was listed for mention on Monday 12 March 2001. At that time Davyth Stewart appeared for the Commission and the Judge ordered the matter be stood into the applications list before the Duty Judge at 10:00am on Monday 9 April 2001 for Hearing.

15 The orders made on 9 April 2001 were entered on 18 April 2001.

16 The orders made on 9 April 2001 included orders staying execution of the assets forfeiture orders for six months from the date on which they were entered. An order takes effect as of the date the orders were made: Pt 4 r 30. The orders staying execution served to prevent the Public Trustee from taking possession of and disposing of the property before 18 October 2001. The stay orders did not prevent the forfeiture orders from taking effect.

17 On 14 November 2001, a notice of motion was filed on behalf of Mr and Mrs Ibrahim seeking exclusion orders pursuant to s23 of the Act.

18 On 11 February 2002, Sully J dismissed the notice of motion on the ground that it was out of time, having been filed more than six months after the forfeiture orders took effect.

19 In the course of that hearing, an attempt was made to explain the non-appearance by or on behalf of the applicants on 9 April 2001 when the assets forfeiture orders were made. The attempt to advance such an explanation was held to be futile by Sully J because of the failure to bring the exclusion application within the six months.

20 The explanation sought to be advanced before Sully J for the failure to bring the exclusion application within time was conveyed by an undated affidavit sworn by Mr Weller (now tendered in the proceeding before me). It was in the following terms.

3 On 28th of May 1998 I filed a Notice of Appearance in relation to Criminal Assets Recovery Act 1990 proceedings on behalf of both Applicants.

4 From the date of Romeo Shaul Ibrahim’s incarceration I had several discussions with the New South Wales Crime Commission with a view to settling this matter and I would speak by telephone to the Applicants and in the case of Romeo Shaul Ibrahim on several occasions I faxed him.

5 On the 19th and 26th of July 2001 I contacted Romeo Shaul Ibrahim by facsimile at the Grafton Correctional Centre and advised him as to the stage the settlement discussions between myself and the New South Wales Crime Commission had reached and sought written instructions.

6 On or about the afternoon of 3rd September 2001 Romeo Shaul Ibrahim rang me and I had discussions with him and he indicated that his family in Sydney were most keen to have a Sydney solicitor take over conduct of the Criminal Assets Recovery Act 1990 proceedings. At the time Mr Ibrahim indicated that he was most happy with the conduct of my work but as he was not in a position to pay me and his family were insistent that they use their own solicitor, he felt it appropriate for me to forward the file to him.

7 On the 4th of September I forwarded a copy of the file to Romeo Shaul Ibrahim care of the Grafton Correctional Centre, which was his request as he wished to read it and make comments and then hand the file to his wife to pass on to the family in Sydney.
8 I did not hear from either applicant from that date until Monday 22 October 2001, wherein Romeo Ibrahim telephoned me and I stated that I had not heard from the new solicitor and he indicated that he had not received the file through the prison system and thought I was continuing to act. He said that he wished me to continue to act in the matter.
9 On 22 October I telephoned Mr Robert Davis of the New South Wales Crime Commission (with whom I had had several discussions over the previous 18 months with a view to settling the matter) and informed him that I was aware that the 6 months time period had elapsed and that an application would be made to the court.

The present proceedings

21 On 20 May 2002 a notice of motion was filed on behalf of Mr and Mrs Ibrahim seeking an order that the assets forfeiture orders made in their absence by Simpson J on 9 April 2001 be set aside. The full text of the orders sought by the notice of motion are as follows:

1. That pursuant to Pt 40 r 9(2)(b) of the Supreme Court Rules the judgment of Simpson J against the defendants/applicants dated 9 April 2001 be set aside on the grounds that there was not effective notice to the legal advisor to the defendants of the proceedings before Simpson J.
2. That pursuant to Pt 40 r 9(2)(b) of the Supreme Court Rules the judgment of Simpson J against the defendants/applicants dated 9 April 2001 [be set aside] on the grounds that the court was not advised that the defendants/applicants wished to contest the orders made on the aforesaid date.
3. Costs of this application.

22 Paragraph 1 of the notice of motion was not pressed.

23 Paragraph 2 was also argued on the ground that the applicants’ solicitor was absent on 9 April 2001 because he was not personally aware that the amended summons was listed for hearing on that date until shortly before 10am on that day, he then being at Byron Bay.

24 Part 40 r 9(2)(b) provides, so far as is material, as follows

9(2) The Court may set aside or vary a judgment –
(a) … … …
(b) where the judgment has been entered after judgment has been given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the judgment.

25 It may be that what was pronounced by Simpson J on 9 April 2001 was, strictly speaking, an order rather than a judgment. However, Pt 40 r 9(3)(a) provides as follows:

9(3) The Court may, on terms, set aside or vary an order –
(a) where the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of motion for the order…

26 The Commission did not take the point, and properly so. The same issues as were argued would arise under Pt 40 r 9(3)(a).

The hearing

27 The notice of motion filed on 20 May 2002 was heard by me on 22 and 23 July 2002.

28 At the hearing before me, Mr Wendler appeared for the applicants, Mr and Mrs Ibrahim, and Mr Temby QC appeared for the Commission.

29 The following affidavits were read in the applicant’s case: Mr JD Weller sworn 17 May 2002 and Ms K Watson sworn 10 April 2001.

30 In the Commission’s case, the affidavit of Mr R Davis sworn 24 June 2002 was read, and the following documents were tendered: restraining order dated 1 April 1998 (Exhibit 1), affidavit of Mr MC Lulan sworn 1 April 1998 (Exhibit 2), notice of motion dated 14 November 2001 (Exhibit 3), copy undated affidavit of JD Weller (Exhibit 4), and letter dated 13 March 2001 from the Commission to Mr Weller, together with transmission result report (Exhibit 5).

31 The following witnesses were cross-examined: Mr Weller, Ms Watson and Mr Davis.

32 It is convenient to record, first, the evidence of Ms Watson. As indicated above, her affidavit of 10 April 2001, filed following Simpson J’s order of 9 April 2001, was read in the proceedings before me. Cross examined by Mr Temby QC, Ms Watson said that the telephone number in her affidavit of 10 April 2001 was incorrect and that the telephone number 6680 9643, in a transmission result report now annexed to the letter of 13 March 2001 (also in evidence before me), was the telephone number to which the letter of 13 March 2001 was sent. Other evidence established that this was in fact Mr Weller's facsimile number. She apologised for the error.

33 Ms Watson said she had obtained the 6685 5853 number (mentioned in her affidavit of 10 April 2001) from a contact list in the Commission’s file. Oral evidence by Mr Weller, given later at the hearing, disclosed - as will appear - that the number 6685 5853 had been Mr Weller's fax number some years earlier. It was apparent that the number in the Commission's contact list had not been updated. This explained the error in Ms Watson's affidavit. She had taken the number from the out-dated contact list when she drafted her affidavit rather than from the transmission result report.

34 It was not suggested in final submissions on behalf of the applicants that the letter of 13 March 2001 was not sent by facsimile transmission to Mr Weller’s correct facsimile telephone number on 14 March 2001 and received there.

35 Mr Weller practices at Byron Bay. In his affidavit of 17 May 2002, Mr Weller said, so far as is presently material:

6 On 9 April 2001 at approximately 9.45am I received a telephone call from a person introducing herself as Sue Jackson and she indicated that she was a solicitor employed by the New South Wales Crime Commission.

She further indicated that she was at the Supreme Court in relation to a matter concerning Romeo and Maria Ibrahim that was on for hearing that morning. I indicated to Ms Jackson that I was about to enter a court in relation to another matter and that I had no notice that there was a hearing set down in this matter for this morning. I indicated that I did not want any matter to proceed in my absence as I had been in regular contact with Mr Robert Davis of the New South Wales Crime Commission and others discussing settlement of these proceedings and that it was inappropriate for any hearing to proceed without representation. I further indicated to Ms Jackson would she urgently fax to my office the notice of the hearing she said she had previously sent. I further advised Ms Jackson would she advise the Court that I have been involved in the proceedings right throughout representing Romeo and Maria Ibrahim, that I had been in regular contact with the New South Wales Crime Commission both verbally and in writing and would she advise the court that I do not want the matter to proceed this morning.
7 On the 9th of April at approximately 10.15am after I had had the matter I was dealing with that morning stood down I again telephoned the New South Wales Crime Commission both attempted to speak to Mr Davyth Stewart and he was not available and ultimately was put through to Mr Lulan and indicated to him that I had had a long series of discussions with Robert Davis and I was confident that the matter would settle, that I had no notice of the hearing and that I needed him to get some sort of message to Ms Jackson for the matter to be adjourned. Mr Lulan indicated to me that he thought it was too late and that he had Mr Davis present with him and that settlement had not been reached.

8 On the 9th of April upon my return from court I read a letter addressed to me C/- my mail box from the New South Wales Crime Commission dated 13th March with the facsimile transmission imprint being 9 April 2001 at 9.51am faxed from St James Hall. Annexed hereto and marked “B” is a true copy of the fax sent to me on 9 April 2001.

9 I did not receive the letter dated 13 March and addressed to my PO Box in Byron Bay and I did not receive a facsimile of it until I received it at my office on 9 April 2001.

36 Cross examined by Mr Temby, Mr Weller confirmed that he had been acting for the applicants since May 1998 and had remained the solicitor on the record since then. He confirmed that 6680 9643 was his fax number in March 2001. He also said that 6685 5853 had been his fax number some years earlier. Mr Weller said that he is a sole practitioner, that the office where the facsimile machine is situated is in his home and that he was in the habit of checking it regularly. He said he did not see the letter at the time when it was said to have been faxed on 14 March 2001 or at any time before it was faxed to him on 9 April as stated in his affidavit.

37 Commendably, it was not suggested on behalf of the Commission, either to Mr Weller in cross-examination or to the court in final address, that Mr Weller's evidence that he did not see the letter prior to 14 April 2001 was incorrect. There was no reason to disbelieve him in that regard. Accidents happen.

38 In these circumstances, I find that the letter of 13 March 2001 was transmitted on 14 March 2001 to Mr Weller’s correct fax number and that it was received there. I also find, however, that, for some reason or other, the letter was not seen by Mr Weller at that time, and was not seen by him thereafter until he received a copy of it on 9 April 2001, as he deposed.

39 It was not suggested to Mr Weller, in cross-examination or to the court in final address, that Mr Weller’s account of the conversations with Ms Jackson and Mr Lulan on 9 April 2001 was incorrect, and no evidence was called to the contrary. I find that those conversations occurred as he has deposed.

40 Mr Weller agreed that he received a copy of the orders made on 9 April 2001 and observed that his clients had six months within which to apply for exclusion orders. He agreed that on 22 October 2001 he told Mr Davis he was aware that the six months period had elapsed. A fuller account of the circumstances in which the application for exclusion orders was not made within time appears in Mr Weller's undated affidavit from which I have quoted extensively above.

41 It was not submitted, on behalf of the applicants that there was a satisfactory explanation for the failure to file an application for exemption orders within time. No satisfactory explanation appears from this evidence.

42 Nor was it submitted on behalf of the applicants that there was a satisfactory explanation for the failure to file an application to set aside the forfeiture orders made on 9 April 2001 earlier than 20 May 2002. Again, no satisfactory explanation appears from the evidence.

43 Mr R Davis’ affidavit of 24 June 2002 consists mostly of a procedural history of the matter. The history, as stated there, is common ground. It includes that, on 23 April 2001, the Commission sent a sealed copy of the forfeiture orders to Mr Weller. That appears to have been by post to Mr Weller’s post office box address. A further copy of the orders was faxed to Mr Weller at his request on 27 June 2001.

44 Mr Davis’ affidavit also records that, shortly before the hearing on 9 April 2001, namely, on 3 April 2001, Mr Weller had written to the Commission on behalf of Mr and Mrs Ibrahim offering to settle the proceedings, and that a further letter proposing settlement was written by Mr Weller to the Commission on 17 July 2001. This was followed by further correspondence in August 2001 on the same topic. Mr Davis says in his affidavit that the settlement discussions did not resolve the proceedings and that, on 25 October 2001, the Commission wrote to Mr Weller advising him that the six month period for an application for an exclusion order had expired.

45 This account of events is consistent with that given by Mr Weller in the undated affidavit to which I have referred.

46 In cross-examination, Mr Davis agreed, in effect, that there were ongoing negotiations between him and Mr Weller, including a conversation on 13 April 2001 (a short time after the assets forfeiture orders were made) and, thereafter, until the letter of 17 July 2001 referred to above.

Was the court informed on 9 April of the conversation between Mr Weller and Ms Jackson earlier that day?

47 The following was said at Tr 32-33 during the hearing before me.

Wendler: I say this in passing, my friend Mr Temby was present on that day. I do not know what he remembers happening on that occasion. I invite him to make such submissions as he can remember as to what occurred on that day, but it appears at paragraph 6 that Mr Weller had communication with Miss Jackson. There is no affidavit from Miss Jackson, no information from her as to what occurred on that day, and that precipitated what my friend now conveniently describes as an inevitable legal consequence. Well, was it inevitable?
Temby: Your Honour, there has been an invitation proffered, and I am prepared to take it up now.
His Honour: Does that suit you, Mr Wendler?
Wendler: Yes.
Temby: I do not recollect and we do not recall what if any information was conveyed to her Honour as the result of whatever information passed between the respective representatives earlier on 9 April. I wish to stress that is by no means a concession that nothing was said, but is a simple statement of lack of recollection. I have said it only because the invitation has been proffered and I am prepared to respond to it.

48 In view of this exchange, I should take it that neither Mr Temby, who appeared on 9 April 2001, nor those instructing him, have a recollection, one way or the other, as to whether Simpson J was informed of the conversation between Mr Weller and Ms Jackson at about 9.45am that day.

49 As I have recorded there is nothing in the associate’s record of the proceedings and there are no reasons for decision which might cast light on this question.

50 It is not conceivable, however, that Simpson J might have made the forfeiture orders on that occasion if she had been informed of the conversation that had occurred. It is even more inconceivable that, if she had been so informed, she might have made the orders without giving reasons for doing so in the absence of the applicants.

51 I find that Simpson J was not informed of the conversation that had occurred, and that, if she had been so informed, the forfeiture orders would not have been made on that occasion.

52 That is not to suggest, of course, that Mr Temby or those instructing him in court on 9 April 2001 knew of the conversation between Mr Weller and Ms Jackson at the time when the Commission put its case in court and when the orders were made; or, indeed, until Mr Weller’s affidavit came to their notice much later.

Implications

53 In Taylor v Taylor (1978) 143 CLR 1, Mason J (as he then was) cited with approval what was said by Jenkins in Grimshaw v Dunbar [1953] 1 QB 408, at 416:

[A] party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent’s case and cross-examine his opponent’s witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made is in absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case – no doubt on suitable terms as to costs, as was recognised in Dick v Piller [1943] KB 497.

54 Whatever else may be said about the events of 9 April 2001, the orders were made without the applicants being heard because the fax sent to Mr Weller on 14 March 2001 did not come to his notice. It does not matter why this was so. The position would, in my view, have been no different if Mr Weller had seen the fax on 14 March and had then forgotten about the fixture until reminded of it at 9.45 am on the day, or if he had mis-noted the fixture in his diary. The applicants did not appear because of human error.

55 There is then a further dimension to what occurred. This was an ex parte application. There was an obligation to inform the court of any material consideration not otherwise apparent. A party who applies ex parte for an order in the exercise of a judicial power is required to meet a high standard of candour and responsibility, in bringing all material matters to the notice of the tribunal including matters which the absent party would rely upon if present: Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 (per Mahoney AP at 676-7, with whom Clarke JA agreed). An order obtained in breach of that duty will almost invariably be set aside even if, on a fresh application following full disclosure, the applicant would be entitled to an order in similar terms: ibid (at 678). It has been said that an order obtained in breach of good faith is to be set aside ex debito justitiae, and that there is no discretion to refuse to set aside such an order: Analby v Praetorius (1888) 20 QBD 764. These are strong words for a strong concept.

56 I do not know at what time on 9 April 2001 the Commission presented its case and the orders were made. I do not know if it was practicable for Ms Jackson to inform those instructing in court of the conversation with Mr Weller before the orders were made. However, this was information that the Commission had before the orders were made. Assuming it was not practicable to give the court the information before the orders were made, it was incumbent on the Commission to inform the court of the conversation after the orders were pronounced, so that the court would have the opportunity of considering whether to vacate the orders in view of that information, as I do not doubt the court would have done.

57 I wish to make clear, in this regard, that I offer no criticism of any individual on the Commission’s staff or any legal representatives of the Commission for the failure to inform the court of what had occurred, because I have no way of knowing at what point the chain of communication between Ms Jackson and the Court failed.

Other considerations

58 It is submitted on behalf of the Commission that there could be no defence to the application for forfeiture orders. That is immaterial where the orders would not have been made (as I find would not have occurred) or would have been vacated (as I find would have occurred) if the Commission had thereafter informed the court of the conversation between Ms Jackson and Mr Weller, as it was obliged to do.

59 There was no satisfactory explanation for the very substantial delay in moving to set aside the orders. That is a relevant consideration.

60 There has been no irremediable prejudice to the Crown arising from the delay. The property has been subject to a restraining order throughout. The applicants have been unable to deal with it. That is also a relevant consideration.

Result

61 Notwithstanding the substantial, unexplained delay in bringing this application, common justice requires that the forfeiture orders made on 9 April 2001 should be set aside, particularly so because the Crown has not suffered irremediable prejudice as a result of the delay.

62 The orders would not have been made or would have been vacated if the court had been informed of the conversation between Mr Weller and Ms Jackson, as the Commission was bound to do. The Commission should, accordingly, pay the applicants’ costs of the motion to set the orders aside.

63 The Commission has not been heard in relation to costs. It should have liberty to apply for reconsideration in that regard.

Orders

64 I make the following orders:

1 Orders made on 9 April 2001 set aside.

2 The respondent Commission to pay the applicants’ costs of the motion.

3 Liberty granted to the respondent Commission to apply on two days’ notice for reconsideration of the order for costs, such liberty to apply not to be exercised later than four weeks from today.

-oOo-

Last Modified: 09/09/2002