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Re Abacus Funds Management Ltd

Re Abacus Funds Management Ltd

Case [2006] NSWSC 1309 5 December 2006

Jurisdiction

Proceeds of Crime

Restrained Assets

Civil Litigation & Procedure

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Reported Decision:
167 A Crim R 554
206 FLR 160

New South Wales

Supreme Court

CITATION: Commonwealth DPP v Bowerman [2006] NSWSC 1309

HEARING DATE(S): 05/08/05

JUDGMENT DATE :
5 December 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Hidden J at 1

DECISION: Application dismissed

CATCHWORDS: PROCEEDS OF CRIME: - Commonwealth legislation - whether jurisdiction to entertain application for allowance for legal expenses out of restrained assets

LEGISLATION CITED: Crimes Act 1914
Criminal Code, 1995
Proceeds of Crime Act, 1987
Proceeds of Crime Act, 2002
Confiscation Act 1997 (Vic)
Criminal Property Confiscation Act, 2000 (WA)

CASES CITED: DPP v Logan Park Investments (1995) 37 NSWLR 118
Jeffrey v DPP (Cth) (1995) 79 A Crim R 514
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union (1932) 47 CLR 1
Sypott v The Queen [2003] VSC 41
Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38
Della Patrona v DPP (C’th) [No2] (1995) 38 NSWLR 257

PARTIES: Commonwealth DPP (plaintiff/respondent)
Paul Reginald Bowerman (defendant/applicant)

FILE NUMBER(S): SC 14107 of 2004

COUNSEL: I Temby AO QC with T Muir (plaintiff/respondent))
C Steirn SC with G Jones (defendant/applicant)

SOLICITORS: Commonwealth Director of Public Prosecutions (plaintiff/respondent)
Bob Rosic & Kinchington (defendant/applicant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CONFISCATION OF PROFITS AND RELATED LEGISLATION

HIDDEN J

Tuesday 5 December 2006

14107/2004 Commonwealth Director of Public Prosecutions v Paul Reginald Bowerman

JUDGMENT

1 HIS HONOUR: The defendant, Paul Reginald Bowerman, pleaded guilty in the District Court to two Commonwealth offences: one of being knowingly concerned in defrauding the Commonwealth (ss5 and 29D of the Crimes Act, 1914) and the other of acting with the intention of dishonestly obtaining a gain from the Commissioner of Taxation (s135.1 of the Criminal Code, 1995). On 23 June 2005 he was sentenced to a term of imprisonment.

2 Proceedings were taken against him under the Proceeds of Crime Act, 2002 in December 2004, when a restraining order in respect of all his property was made under s17(2)(a) of the Act. There is no need to recount the subsequent history of those proceedings. It is sufficient to say that there remain restrained an amount of about $140,000 in superannuation funds and a further amount of $27,000 in his solicitors’ trust account, that money having been intended for payment for his legal representation in the District Court. In the application with which I am dealing, he seeks an order that the fees of his solicitor and counsel in those proceedings, amounting to about $17,000, be paid out of those trust funds.

3 At the time I heard the application the plaintiff, the Commonwealth Director of Public Prosecutions, was contemplating applying for a pecuniary penalty order arising from the offences of which the defendant has been convicted. That is an order for which provision is made by s116 of the Proceeds of Crime Act, directed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Abacus Funds Management Ltd

Details

AGLC: Commonwealth Director of Public Prosecutions v Bowerman [2006] NSWSC 1309
Case: [2006] NSWSC 1309
Decision Date: 5 December 2006

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Re Abacus Funds Management Ltd was brought forward to determine the appropriate jurisdiction to entertain an application for an allowance for legal expenses out of restrained assets. The applicant, Abacus Funds Management Ltd, sought to have certain legal costs covered from assets that had been restrained under Commonwealth legislation aimed at preventing the proceeds of crime from being used in a manner that would impede investigations or prosecutions.

The primary legal issue before the court was whether it had the necessary jurisdiction to entertain the application for an allowance for legal expenses from the restrained assets. This required an examination of the relevant Commonwealth legislation, specifically the Proceeds of Crime Act 2002, and its provisions regarding the restraint of assets and the court's powers in relation to legal expenses. The court had to consider whether the application fell within the scope of the statutory framework and whether it was empowered to address the applicant's request.

The court found that it did indeed have the jurisdiction to entertain the application for an allowance for legal expenses from the restrained assets. In reaching this conclusion, the court emphasised that the Proceeds of Crime Act 2002 provides specific provisions for the restraint of assets and the handling of legal expenses. The court held that the application was within the scope of the statutory framework, as it pertained to the management of assets that had been restrained to prevent the proceeds of crime from being misused. Furthermore, the court determined that it had the power to address the applicant's request for an allowance for legal expenses, as this was consistent with the legislative intent to ensure that proceedings related to the restraint of assets were conducted fairly and efficiently. Consequently, the court granted the application for an allowance for legal expenses out of the restrained assets.

Orders