Police Integrity Commission v Battal

[2015] NSWSC 1798

Supreme Court

New South Wales

Medium Neutral Citation:

Police Integrity Commission v Battal [2015] NSWSC 1798

Hearing dates:

30 November 2015

Decision date:

30 November 2015

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) The requirement for service of the plaintiff's notice of motion filed on 21 October 2015 upon the defendant be dispensed with.

 

(2) The respondent, being the New South Wales Trustee and Guardian, pay the sum of $24,635.63 to the New South Wales Treasurer in partial discharge of the proceeds assessment order made against the defendant by the Court on 10 October 2012.

 (3) The respondent is to retain the balance of the moneys in its possession and control, $605, in payment of its fees and expenses incurred in or in connection with the performance of the duties imposed on the respondent under the restraining order made on 27 January 2009, as varied by the Court on 20 November 2013.

Catchwords:

CRIMINAL LAW – order sought for payment of moneys from the NSW Trustee and Guardian to the NSW Treasurer in partial discharge of proceeds assessment order

  PRACTICE AND PROCEDURE – application to dispense with requirement for service of notice of motion and supporting affidavit – satisfied that defendant was aware of the application – inference that defendant has chosen not to play any part nor appear in opposition to application – requirement for service dispensed with

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 14
Criminal Assets Recovery Act 1990 (NSW), ss 10, 22, 27
Uniform Civil Procedure Rules 2005 (NSW), r 18.2

Category:

Principal judgment

Parties:

Police Integrity Commission (Plaintiff)
Nasser Mohamad Battal (Defendant)
New South Wales Trustee and Guardian (Respondent)

Representation:

Counsel:
R Tumeth (solicitor) (Plaintiff)

  Solicitors:
Michelle O’Brien, Solicitor for the Police Integrity Commission (Plaintiff)

File Number(s):

2009/00292442

Judgment (EX PARTE – REVISED)

Introduction

The present application

1. The Police Integrity Commission moves, by notice of motion filed 21 October 2015, for an order that the New South Wales Trustee and Guardian (the respondent) pay the moneys in its possession and control, as described in the motion, to the New South Wales Treasurer (the Treasurer) in partial discharge of the proceeds assessment order made in these proceedings on 10 October 2012.

The position of the NSW Trustee and Guardian

2. I note that an order has been sought because the New South Wales Trustee and Guardian considered it to be more appropriate for the plaintiff to seek a court order to require the New South Wales Trustee and Guardian to pay the monies to the Treasurer. However, the NSW Trustee and Guardian does not oppose the orders, on condition that its costs are paid. I note that provision for costs to be deducted from the monies held is made in the orders proposed by the plaintiff.

The evidence

3. In support of the notice of motion, Mr Tumeth, who appears on behalf of the plaintiff, reads an affidavit of Michelle O'Brien of 21 October 2015; and two affidavits sworn by himself on 25 November 2015. The plaintiff also relies on a travel movement record supplied by the Department of Immigration in respect of the defendant (Exhibit A) (which indicates that the defendant left Australia on 20 October 2013 and has not returned); and correspondence with the New South Wales Trustee (Exhibit B) (which indicates that the New South Wales Trustee and Guardian has no objection to the proposed orders which are sought).

Summary of the relevant facts

The making of a restraining order against the defendant

4. The background to this matter is rather lengthy. For present purposes, a brief summary will suffice. The plaintiff commenced proceedings against the defendant, Nasser Battal, on 27 January 2009 pursuant to the Criminal Assets Recovery Act 1990 (NSW) (the Act), seeking, in part, to restrain the defendant's interest in certain property at Leumeah in the State of New South Wales (the Leumeah Property). At that time, the defendant was a serving New South Wales Police Force officer who was being investigated by the plaintiff for corrupt conduct. On 27 January 2009, the Court made orders, including an order pursuant to s 10 of the Act, restraining the defendant's interest in the Leumeah Property.

The proceeds assessment order

5. On 29 January 2009, the plaintiff filed a summons seeking an assets recovery order under s 22 of the Act; and a proceeds assessment order pursuant to s 27 of the Act.

6. On 22 July 2011, the defendant pleaded guilty to numerous criminal charges in the District Court of New South Wales.

7. On 10 October 2012, the Court made orders, by consent of the parties, including an order pursuant to s 27(1) of the Act that the defendant pay to the NSW Treasurer the sum of $50,000 in satisfaction of a proceeds assessment order.

The family law proceedings in the Federal Circuit Court

8. On 12 September 2013, consent orders were made in the Federal Circuit Court of Australia in family law proceedings between the defendant and his wife, May Battal. As part of the arrangement reflected in the consent orders, the defendant agreed to transfer to his wife his interest in the Leumeah Property in return for her promise to pay the sum of $25,000 to the defendant. On 20 November 2013, orders were made, by consent, in this Court which included an order that the sum of $25,000 payable by May Battal to the defendant pursuant to the Federal Circuit Court orders be paid instead to the New South Wales Trustee and Guardian. In compliance with that order, Mrs Battal paid the sum of $25,000 to the New South Wales Trustee and Guardian who has held the sum on trust ever since.

The defendant’s legal representation in the proceedings

9. Mr Walsh, solicitor, filed an appearance on behalf of the defendant in these proceedings on 30 July 2009. No notice of ceasing to act; no notice of change of solicitor; and no fresh notice of appearance appear to have been filed. However, for several years Nicholas Paneras has purported to act on behalf of the defendant in the proceedings as his solicitor. I note from a number of the court’s records of proceedings that Mr Paneras (or someone instructed by him) has appeared on behalf of the defendant in these proceedings at various hearing dates and dates for directions. Moreover, Mr Paneras has corresponded with the plaintiff on behalf of the defendant in relation to these proceedings. In recent times, the plaintiff has corresponded with Mr Paneras relating to the question of the moneys held on trust by the New South Wales Trustee and Guardian; the plaintiff’s claim to be entitled to those moneys; and the plaintiff’s proposed application to this Court for an order that the moneys be paid to the Treasurer.

The present dispute

10. There is a dispute between the defendant and the plaintiff as to what should happen to the amount paid to the New South Wales Trustee and Guardian. Mr Paneras has claimed in correspondence with the plaintiff that his client still had some entitlement to the moneys paid to the New South Wales Trustee and Guardian. Thus the defendant has refused to consent to an order that the monies held by the New South Wales Trustee and Guardian be paid to the Treasurer.

11. Correspondence between the plaintiff and the defendant's solicitor ensued, in the course of which the defendant's solicitor, most recently by letter dated 28 August 2015 to the plaintiff, informed the plaintiff that he was instructed that the defendant did not consent to the proposed order for payment out by the New South Wales Trustee and Guardian. However, Mr Paneras informed the plaintiff in the same letter that he was instructed to accept service of any documents. I am satisfied that, by that date, the defendant's solicitor (and through him, the defendant) was well and truly aware of the orders which would be sought by the plaintiff in these proceedings for payment to the Treasurer, although, as at that date, the notice of motion had not yet been filed.

12. On 2 September 2015, Mr Paneras told Mr Tumeth for the first time that the defendant was "on the run overseas and there is a contract out on him because of information he previously supplied to the authorities". Mr Paneras informed Mr Tumeth that he no longer had instructions and that he would not be appearing in Court in relation to the proceedings. He also informed Mr Tumeth that he did not think that Mr Battal would be appearing in relation to these proceedings.

Application to dispense with service

13. The plaintiff also seeks an order dispensing with the requirement for service of the notice of motion and affidavits on the defendant. This order is sought under s 14 of the Civil Procedure Act2005 (NSW) and r 18.2(2)(c) of the Uniform Civil Procedure Rules 2005 (NSW). I am satisfied that, in the circumstances of this case, it is appropriate to dispense with the requirement for service on the defendant. The evidence establishes that he left Australia on 20 October 2013. His present whereabouts are not revealed by the evidence, except that he is outside Australia. Although Mr Paneras did not see fit to file a notice of appearance in this Court, his participation in these proceedings and his representation, as recently as 28 August 2015, that he had instructions from the defendant is sufficient to satisfy me that the defendant has had notice of the application by the plaintiff. I infer that the defendant has chosen not to play any part in these proceeding and has decided neither to appear in opposition to the orders sought nor to instruct a solicitor to resist such orders on his behalf.

Summary and conclusion

14. I am satisfied, in all the circumstances, that it is appropriate to make the orders sought by the plaintiff in the minute of order handed up by Mr Tumeth.

Orders

15. In these circumstances, I make the following orders:

1. The requirement for service of the plaintiff's notice of motion filed on 21 October 2015 upon the defendant be dispensed with.

2. The respondent, being the New South Wales Trustee and Guardian, pay the sum of $24,635.63 to the New South Wales Treasurer in partial discharge of the proceeds assessment order made against the defendant by the Court on 10 October 2012.

3. The respondent is to retain the balance of the moneys in its possession and control, $605, in payment of its fees and expenses incurred in or in connection with the performance of the duties imposed on the respondent under the restraining order made on 27 January 2009, as varied by the Court on 20 November 2013.

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Decision last updated: 01 December 2015