Re Application Under Section 19 of the Proceeds of Crime Act 2002 (Cth); Ex Parte Commissioner of the Australian Federal Police v P [No 3]
[2019] WASC 75
•12 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE APPLICATION UNDER SECTION 19 OF THE PROCEEDS OF CRIME ACT 2002 (CTH); EX PARTE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -v- P [No 3] [2019] WASC 75
CORAM: SMITH J
HEARD: 19 FEBRUARY 2019
DELIVERED : 19 FEBRUARY 2019
PUBLISHED : 12 MARCH 2019
FILE NO/S: CIV 1350 of 2017
EX PARTE
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant
AND
EX PARTE
P
First Respondent
EX PARTE
N
Second Respondent
Catchwords:
Proceeds of Crime Act 2002 (Cth) s 19 - Restraining order - Proceeds of indictable offence - Prevention of disposition of property - Ex parte application - Turns on own facts
Proceeds of Crime Act 2002 (Cth) s 38 - Custody and control order - Proceeds of indictable offence - Prevention of disposition of property - Application to enable the official trustee to take custody and control of the property - Ex parte application - Turns on own facts
Legislation:
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 5
Criminal Code Act 1995 (Cth), s 135.1(3), s 400.9(1), s 400.9(1A), s 400.9(2)(c)
Proceeds of Crime Act 2002 (Cth), s 19, s 20A, s 21, s 22, s 25, s 26(4), s 29(1), s 29(2)(d), s 33(1), s 38, s 42, s 314, s 329(1), s 329(3), s 335(2), s 338
Result:
Restraining order made
Custody and control order made
Category: B
Representation:
Counsel:
| Applicant | : | Ms L B Black |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
Solicitors:
| Applicant | : | Commissioner of The Australian Federal Police |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
Case(s) referred to in decision(s):
Commissioner of The Australian Federal Police v P [2017] WASC 114
SMITH J:
The application
Pursuant to s 26(4) of the Proceeds of Crime Act 2002 (Cth) (the Act) the Commissioner of the Australian Federal Police (the Commissioner) applies, as a 'proceeds of crime authority' who is a 'responsible authority' within the meaning of s 25 of the Act,[1] ex parte for a restraining order under s 19 of the Act against N in respect of property listed in [3] of sch A of an amended chamber summons filed on 18 February 2019.
[1] These terms are defined in s 338 of the Proceeds of Crime Act 2002 (Cth).
The item of property listed in [3] of sch A relates to a bank account in the name of AP.
The Commissioner also seeks an order pursuant to s 38 of the Act, that the official trustee take custody and control of the property listed in [3] of sch A.
The application was heard ex parte. At the conclusion of the hearing on 19 February 2019 I formed the opinion that the orders sought by the Commissioner should be made. The reasons why I made the orders are as follows.
Background
AP is the child of both P and N.
On 8 March 2017, Banks‑Smith J made unexplained wealth restraining orders, pursuant to s 20A of the Act, against P and N relating to four properties registered in the name of N or a company (DNA), two vehicles in the name of another company (DN), and nine bank accounts in the name of P, N, DN or DNA, on grounds that there was a reasonable suspicion that on reasonable grounds:[2]
(a)property in the name of P, N, DN, DNA, a third company DND and a family trust (DN Family Trust) were all controlled by P and N, and held for their ultimate benefit;
(b)the total wealth of each of P and N exceeded the value of their lawfully acquired wealth; and
(c)that each of P and N had committed offences against the Commonwealth, namely s 135.1(3), s 400.9(1) and s 400.9(1A) of the Criminal Code 1995 (Cth).
[2] Commissioner of The Australian Federal Police v P [2017] WASC 114 [56] ‑ [70].
The evidence in support of this application for a restraining order and a custody and control order
Federal agent Gareth Alexander Reilly (Federal agent Reilly) deposes in his seventh affidavit sworn on 24 December 2018 that he suspects that the money in the bank account of AP is proceeds of an indictable offence contrary to s 400.9(1A) of the Criminal Code.[3] His stated reasons for the suspicion are drawn from the following knowledge and information obtained during the course of enquiries conducted by him and other members of the Australian Federal Police:
[3] Seventh affidavit of Gareth Alexander Reilly, filed on 24 December 2018 [8], [51].
(a)AP is 19 years old;
(b)enquiries of the Australian Taxation Office have revealed that AP is not located on the Australian Tax Office tax history system;
(c)N is a signatory of the bank account in the name of AP;
(d)the bank account in the name of AP had an opening balance on 21 August 2009 of $7,256.06;
(e)between 21 August 2009 and 20 October 2010, AP's bank account received 11 cash deposits totalling $3,000;
(f)on 20 October 2010, $10,000 was withdrawn from AP's bank account and a $10,000 cash deposit banked into a term deposit in AP's name;
(g)between 21 August 2009 and 15 February 2016, the bank account of AP received 44 cash deposits totalling $25,150;
(h)between 20 October 2010 and 20 September 2016, AP's term deposit received $2,387.28 in interest;
(i)on 20 September 2016, $11,854.28 was transferred from AP's term deposit to AP's bank account;
(j)on 26 September 2016, $11,854.28 was transferred from AP's bank account to a bank account in the name of N;
(k)on 10 March 2017, two days after being served with a restraining order made by Banks‑Smith J, N withdrew $12,600 in cash from AP's bank account; and
(l)on 22 March 2017, $7,000 was deposited in cash into AP's bank account and on 23 March 2017, $5,600 was deposited into AP's bank account. (It is notable that both those amounts were under the cash transaction reporting limit of $10,000 under the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 (Cth)).[4] The source of the two cash deposits on 22 and 23 March 2017, if not the same cash withdrawn from AP's account on 10 March 2017, is unknown.
[4] Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 5: 'Threshold Transaction'.
Grounds for making the application ex parte
Under s 26(4) of the Act, the court is required to consider the application without notice if requested by the responsible authority to do so, but is not required to determine the application ex parte.
The grounds for seeking to have the application heard ex parte are that Federal agent Reilly is of the opinion that if N or AP are provided with notice of the application to restrain the funds standing to the credit of AP's bank account, steps will be taken to withdraw the funds based upon:
(a)the ease with which AP can withdraw funds from the bank account from overseas through the bank's facility to do so; and
(b)the conduct of N after N was served with a restraining order made by Banks‑Smith J on 8 March 2017.
Despite the consequence that a restraining order made without notice will produce some prejudice to N and AP, I formed the opinion that the Commissioner had shown good reason to proceed without notice.
Having considered the foregoing matters set out in the seventh affidavit of Federal agent Reilly, I was satisfied that the interests of justice required the court to consider the application and make the order restraining the property. This was because the case for immediate restraint was very strong.
The nature of the property restrained is a bank account and there was evidence before the court that the account holders could move funds quickly and dissipate them if they were given notice of the application.
Whilst the restraining order was only sought against N, pursuant to s 19(1)(b) of the Act the restraining order will bind any other person, which will be effective to bind AP.
I also formed the opinion that the balance of justice favours proceeding to determine the application without notice on the following grounds:
(a)Section 33(1) of the Act requires that an ex parte order, once made, must be served by giving written notice to N and to the person who owns the property that the restraining order covers. Consequently, the restraining order must also be served by giving written notice to AP. It will then be open to N or AP, once served, to make an application under s 31(1) for an order pursuant to s 29(1) and (2)(d) to exclude the property under the restraining order on grounds that the interest in the property is not proceeds of an indictable offence.
(b)An application could also be made by N or AP under s 42 of the Act. Section 42 allows the court to revoke a restraining order on the application of a person who was not notified of this application, on grounds including where 'it is otherwise in the interests of justice to do so'.[5]
(c)Consequently, the rights of both N and AP, under s 29(1), s 29(2)(d), s 31(1) and s 42, enables N and AP to alleviate the prejudice they might suffer by the making of the order ex parte.
[5] Proceeds of Crime Act 2002 (Cth) s 42(5)(b).
Formal matters
The application has been made by the Commissioner, who is a 'proceeds of crime authority'.[6]
[6] Proceeds of Crime Act 2002 (Cth) s 338.
The Commissioner gave an undertaking as to the payment of damages on behalf of the Commonwealth of Australia, filed on 19 February 2018, pursuant to s 21 of the Act, with respect to this application.
At the hearing of the application counsel for the Commissioner made it clear that the restraining order was only sought in relation to one suspect, namely N, as required by s 22 of the Act.
Pursuant to s 314 and s 335(2) of the Act, the court has jurisdiction to hear and determine the application by virtue of the fact that it also has jurisdiction to deal with criminal matters on indictment.
A restraining order must be made under s 19 of the Act when the following criteria are satisfied:
(a)a proceeds of crime authority applies for the order;[7]
(b)there are reasonable grounds to suspect that the property to be restrained is the proceeds of an indictable offence or an instrument of a serious offence;[8]
(c)the application is supported by an affidavit of an authorised officer and the authorised officer's affidavit deposes to his suspicion that the property is the proceeds of an indictable offence or an instrument of a serious offence, and includes the grounds upon which he holds the suspicion;[9] and
(d)the court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.[10]
[7] Proceeds of Crime Act 2002 (Cth) s 19(1)(c).
[8] Proceeds of Crime Act 2002 (Cth) s 19(1)(d).
[9] Proceeds of Crime Act 2002 (Cth) s 19(1)(e).
[10] Proceeds of Crime Act 2002 (Cth) s 19(1)(f).
The application is supported by the seventh affidavit of Federal agent Reilly. I am satisfied that Federal agent Reilly, as a member of the Australian Federal Police, is an authorised officer.
The offences
A restraining order may be made pursuant to s 19 of the Act if the restraining order relates to property suspected of being the proceeds of, or an instrument of, an indictable offence.
The offence which Federal agent Reilly suspects N has committed is an offence under s 400.9(1A) of the Criminal Code.[11] Section 400.9(1A) is not a 'serious offence' within the meaning of s 19(2) of the Act. A 'serious offence' is defined in s 338 of the Act to be an indictable offence punishable by imprisonment for three or more years, involving specified conduct. An offence under s 400.9(1A) of the Criminal Code is an offence punishable by imprisonment for two years, or 120 penalty units, or both.
[11] Seventh affidavit of Gareth Alexander Reilly, filed on 24 December 2018 [8].
Section 400.9(1A) provides that if a person deals with money or other property, and if it is reasonable to suspect that the money or property is proceeds of crime, the person commits an offence under s 400.9(1A).[12] Under s 400.9(2)(c), s 400.9(1A)(b) is taken to be satisfied if the value of the money and property involved in the conduct is, in the opinion of the trier of fact, grossly out of proportion to the defendant's income and expenditure over a reasonable period within which the conduct occurs.
[12] Additionally, for an offence under s 400.9(1A) to be established the value of the money or property, at the time of the dealing, must be less than $100,000. This criteria is satisfied.
Property is proceeds of an offence if it is wholly derived or realised, whether directly or indirectly, from the commission of the offence, or it is partly derived or realised, whether directly or indirectly, from the commission of the offence.[13]
[13] Proceeds of Crime Act 2002 (Cth) s 329(1).
Property can be proceeds of an offence even if no person has been convicted of the offence.[14]
[14] Proceeds of Crime Act 2002 (Cth) s 329(3).
The criteria in s 19 of the Proceeds of Crime Act is satisfied
I was satisfied that there are reasonable grounds to suspect that the property (the money in the bank account in the name of AP) is proceeds of an indictable offence. I made this finding based upon evidentiary material in the seventh affidavit of Federal agent Reilly and the facts found by Banks‑Smith J in Commissioner of The Australian Federal Police v P.[15] My reasons for this finding are as follows:
(a)P and N had an average declared taxable income of $36,513 between 2008 and 2016[16] which was obtained through their sole employment in DN;
(b)AP has no declared income;[17]
(c)P and N have large amounts of unexplained cash that is used to fund their lifestyle; and
(d)the declared income of N does not support the cash deposits made into AP's bank account.
[15] Commissioner of The Australian Federal Police v P [2017] WASC 114 [28] ‑ [55].
[16] Seventh affidavit of Gareth Alexander Reilly, filed on 24 December 2018 [14] - [17], [50(b)(ii)], [51(b)(ii)].
[17] Seventh affidavit of Gareth Alexander Reilly, filed on 24 December 2018 [21].
When regard was had to these matters I was satisfied that there was a sufficient basis to make the restraining order.
Custody and control order
The Commissioner also sought a custody and control order of the bank account of AP. Under s 38 of the Act, the court may order the Official Trustee to take custody and control of the property, or specified property, covered by a restraining order if the court is satisfied that this is required. A custody and control order enables the rights and duties imposed by pt 4-1 of the Act to be invoked.
Section 19(3) of the Act empowers the court to refuse to make a restraining order in respect of an indictable offence that is not a serious offence if the court is satisfied that it is not in the public interest to make the order.
There were no matters raised before me upon which I could be satisfied that it is not in the public interest to make the order.
For these reasons, I was satisfied that the order is required.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EH
Research Associate/Orderly to the Honourable Justice Smith
12 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -v- P [No 3] [2019] WASC 75 (S)
CORAM: SMITH J
HEARD: ON THE PAPERS
DELIVERED : 11 SEPTEMBER 2020
FILE NO/S: CIV 1350 of 2017
BETWEEN: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant
AND
P
First Respondent
N
Second Respondent
Catchwords:
Costs - Application for costs for a dismissed chamber summons - Satellite costs proceedings - In determining costs not in the public interest to determine the merits of a chamber summons dismissed by consent
Legislation:
Proceeds of Crime Act 2002 (Cth), s 20A, s 38, s 39(1), s 39(1)(ca), s 179B, s 179E, s 180
Result:
Orders: Costs of and incidental to the dismissed chamber summons dated 25 March 2020 be in the cause
Category: B
Representation:
Counsel:
| Applicant | : | No appearance |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
Solicitors:
| Applicant | : | Commissioner of The Australian Federal Police |
| First Respondent | : | Hager Grubb |
| Second Respondent | : | Hager Grubb |
Case(s) referred to in decision(s):
Commissioner of the Australian Federal Police v P [2018] WASC 314
Re Application under Section 20A of the Proceeds of Crime Act 2002 (Cth); Ex Parte Commissioner of the Australian Federal Police [2017] WASC 114
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2010) 265 ALR 112
SMITH J:
Application for costs for a dismissed chamber summons dated 25 March 2020 and the result
On 2 March 2017, the Commissioner of the Australian Federal Police filed a notice of originating motion, pursuant to the Proceeds of Crime Act 2002 (Cth) (the Act), seeking orders that included unexplained wealth orders against the first and second respondents, pursuant to s 179E of the Act.
On 25 March 2020, the respondents filed an amended chamber summons seeking orders that:
1.The applicant's application for unexplained wealth orders (Application) be:
1.1dismissed for want of prosecution; alternatively
1.2permanently stayed as an abuse of process; alternatively
1.3trial programming orders be made for the hearing of the Application; and
2.The applicant pay the respondents' costs of this application and any reserved costs, to be taxed or agreed.
The amended chamber summons, filed on 25 March 2020, amended a chamber summons filed by the respondents on 26 September 2019, in which the sought orders included the orders proposed in 1.1 and 1.2 of the amended chamber summons, but not 1.3.
After filing the amended chamber summons, the parties conferred and agreed to orders being made by the court to programme the substantive application for unexplained wealth orders towards a hearing. The consent orders made on 2 April 2020 required the filing and service of affidavits by the applicant (other than evidence solely of an expert nature) on or before 18 September 2020, and the filing and service of affidavits by the respondents (other than evidence solely of an expert nature) on or before 18 December 2020, and listed the matter for a further directions hearing following the resumption of court proceedings in 2021.
By consent, the parties also agreed to an order being made on 2 April 2020 dismissing the respondents' amended chamber summons with costs of the amended chamber summons to be decided on the papers.
The parties' representatives subsequently filed affidavits and submissions in support of the orders for costs sought by each party.
The parties respectively seek opposing costs orders. The respondents seek an order that the applicant pay their costs of and any reserved costs of the chamber summons. The applicant opposes the orders sought by the respondents and seeks an order that the respondents pay his costs of and incidental to the chamber summons, to be taxed if not agreed.
For the reasons that follow, the appropriate order for costs, of and incidental to, the amended chamber summons, is that, costs be in the cause.
Procedural background to the filing of the chamber summons on 26 September 2019 and the amended chamber summons on 25 March 2020
On 8 March 2017, Banks‑Smith J made:[18]
(a)unexplained wealth restraining orders against the first and second respondents, pursuant to s 20A of the Act;
(b)custody and control orders of specified property, pursuant to s 38 of the Act;
(c)an order, pursuant to s 39(1)(ca), directing the first and second respondents to give a Federal agent a sworn statement within a specified period setting out his or her interests in property, and his or her liabilities, for the period from 1 January 2010 to 8 March 2017;
(d)a preliminary unexplained wealth order, pursuant to s 179B of the Act, against the first and second respondents, requiring the first and second respondents to appear before the court, on a date to be fixed, for the purpose of enabling the court to decide whether or not to make an unexplained wealth order against the first and second respondents, pursuant to s 179E of the Act; and
(e)examination orders, pursuant to s 180 of the Act, against a number of persons, including the first and second respondents.
[18] Re Application under Section 20A of the Proceeds of Crime Act 2002 (Cth); Ex Parte Commissioner of the Australian Federal Police [2017] WASC 114.
At the time the examination notices were issued by an approved examiner, the respondents had left Australia and were living in Vietnam.
The examination notices were sent to the first and second respondents' solicitors in Perth who entered appearances, on behalf of the respondents in the proceedings, but they advised the applicant that they had no instructions to accept service of the examination notices, on behalf of the respondents.
The respondents did, however, offer to attend examinations in Vietnam. On instructions from the first and second respondents, their solicitors wrote to the approved examiner on 30 April 2018 requesting an examination by video-link from Vietnam.
On 3 May 2018, the approved examiner declined to make a direction that the examinations be conducted by video-link.
On 14 June 2018, following an application by the applicant, an approved examiner issued fresh examination notices for the first and second respondents to attend examinations. The second examinations were scheduled to take place in Perth for the first respondent at 10.00 am on 9, 10 and 11 July 2018; and the second respondent at 10.00 am on 19 and 20 July 2018. Each of the examination notices were sent by post to the last known addresses of the respondents in Ho Chi Minh City, Vietnam. The respondents did not attend. Their solicitors argued that they had not been lawfully served in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (Hague Convention).
By chamber summons, filed on 27 July 2018, the applicant applied for ancillary orders, pursuant to s 39(1) of the Act, seeking an order that the respondents attend an examination within 56 days of the date of the order. Orders were also sought:
(a)pursuant to the examination order made by Banks-Smith J on 8 March 2017, that the applicant apply to an approved examiner to issue a further examination notice for the examination of each respondent in Western Australia under pt 3-1 of the Act, returnable within 36 days of the date of the order; and
(b)in the event that either or both of the respondents fail to attend an examination under pt 3-1 of the Act, within 56 days of the date of the order, the matter be listed for a directions hearing for orders programming the matter for a final hearing of the applicant's application for unexplained wealth orders against the respondents under s 179E of the Act.
The orders sought in the chamber summons, filed on 27 July 2018, were sought by the applicant to remedy what the applicant claimed was a failure of the first and second respondents to attend a compulsory examination.
The applicant's chamber summons, filed on 27 July 2018, was dismissed.[19] After hearing the parties, I found that the court had no power to make the orders sought by the applicant.[20] No finding was made as to whether service of the examination notices on the respondents in or about June 2018 was effective.[21]
[19] Commissioner of the Australian Federal Police v P [2018] WASC 314.
[20] Commissioner of the Australian Federal Police v P [2018] WASC 314 [51].
[21] Commissioner of the Australian Federal Police v P [2018] WASC 314 [53].
At the request of the respondents, arrangements were then attempted to be made by the applicant for the respondents to attend examinations in Singapore and an assurance was given to the respondents by Ms Fishbourne, on behalf of the applicant, by email sent on 3 May 2019, to the respondents' lawyers that the respondents would not be subject to the Singapore Penal Code.[22] However, the respondents sought and obtained a legal opinion from a Singaporean counsel, that the undocumented assurances provided by Ms Fishbourne, on behalf of the applicant, could not be said to be legally binding upon the Public Prosecutor of Singapore. The respondents then withdrew their consent to attend examinations in Singapore.[23]
[22] Affidavit of Bruce Graeme Grubb sworn 2 October 2019 page 33, annexure BBG‑14.
[23] Affidavit of Bruce Graeme Grubb sworn 2 October 2019 pages 41 and 61 ‑ 65.
On 9 August 2019, the respondents' solicitors were advised by Ms Fishbourne, on behalf of the applicant, that the applicant would not be arranging any further examinations of the respondents in another jurisdiction, and stated:[24]
I acknowledge your purported lack of instructions in relation to the examination notices of [P] and [N]. Accordingly, the Commissioner will not involve you in any further correspondence in attempting to arrange an Examination of [P] and [N].
For the avoidance of doubt, I will repeat the Commissioner's position as set out in my email dated 5 August that it is the intention of the Commissioner to conduct an Examination of both [P] and [N] and when he has had the opportunity to do so, he will be in a position to progress with his application for unexplained wealth orders.
[24] Affidavit of Bruce Graeme Grubb sworn 2 October 2019 page 73.
Disposition of the applications for costs orders of the chamber summons dismissed by consent
The court has said on many occasions that its scarce resources should not be weighed down by expensive satellite litigation for costs orders which engage the resources of the parties and the court in litigation that is disproportionate to the issues involved. Satellite litigation of this kind is contrary to the public interest, the interests of the parties, and is actively discouraged by the court.
Although in this matter both parties filed short submissions as to costs and short supporting affidavits; in circumstances where no programming orders or preparation was made for the hearing of the amended chamber summons, this application for costs has, in my view, engaged resources that are disproportionate to the costs incurred by the parties in respect of and incidental to the amended chamber summons.
This principle is relevant to this matter because what the parties seek the court to do, is to engage with the parties' arguments as to whether the respondents' application for orders for a permanent stay or dismissal of the applicant's application for unexplained wealth orders had any proper basis in law or in fact.
In the applicant's written submissions, filed on 4 May 2020, it is conceded that in most cases, where there has been no trial on the merits, it is not appropriate for the court to make a prediction as to the outcome.[25] However, it is argued on behalf of the applicant that the court can order costs where a party has acted unreasonably to the extent that the other party should obtain the costs of the action.
[25] Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2010) 265 ALR 112 [117] ‑ [118]; Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 ‑ 625 (McHugh J).
However, to determine whether the respondents have acted unreasonably would require the court to embark upon consideration of the merits of the respondents' amended chamber summons.
In circumstances where the applicant had not filed any affidavit material in opposition to the respondents' chamber summons and it was agreed by the parties that the chamber summons should be dismissed without a determination of the merits of the application, it is now not appropriate for the parties to attempt to engage the court in a consideration of the merits of the application.
To determine which party has acted unreasonably would in this case necessarily require the court to embark upon the merits of the respondents' application to dismiss or to permanently stay the applicant's application for unexplained wealth orders for want of prosecution. Plainly, in circumstances where the chamber summons was dismissed by consent, and programming orders were made to progress the substantive application, but not list for hearing, it is not in the public interest to do so.
In any event, there is insufficient material before the court to determine the merits of the application. In the respondents' written submissions, a submission is made that, but for the filing of the chamber summons, the progress of the application for unexplained wealth orders would have remained stultified. In the absence of argument, it is difficult to ascertain whether the respondents' supporting affidavit sworn by Bruce Graeme Grubb on 20 April 2020, contains relevant evidence in support of this contention.
In the applicant's written submissions, filed on 4 May 2020, an argument is put that the orders sought by the respondents had no proper basis in law or in fact. In support of the applicant's submissions, the applicant filed an affidavit sworn by Simone Demetra Fishbourne, which does not annex any relevant documents, but simply refers to unattached correspondence between the parties from 27 September 2019 to 10 March 2020 as correspondence showing that the applicant attempted to understand the issues in dispute arising from the chamber summons.
It is for these reasons the appropriate order for costs is the costs of the respondents' dismissed chamber summons be in the cause.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
11 SEPTEMBER 2020
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