The Commissioner of the AFP v Kaur and Singh
[2016] VSC 13
•9 February 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S CI 2015 6308
| IN THE MATTER of the Proceeds of Crime Act 2002 (Cth) | |
| BETWEEN | |
| THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Applicant |
| - and - | |
| VARINDER KAUR AND HARPAL SINGH | Respondents |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 12 and 29 January 2016 |
DATE OF RULING: | 9 February 2016 |
CASE MAY BE CITED AS: | The Commissioner of the AFP v Kaur & Singh |
MEDIUM NEUTRAL CITATION: | [2016] VSC 13 First revision (1 March 2016) |
PROCEDURE – Confiscation of proceeds of crime – Application for restraining order, examination order and ancillary orders – Adjournment of applications - Form of notice – Manner in which notice given – Personal service - No order as to costs – Proceeds of Crime Act 2002 (Cth) ss 26(1), 26(4), 26(5), 33, 39(ca), 39(3A), 39(4A), 180, 182 – Supreme Court (Criminal Procedure) Rules 2008 (Vic) rr 6.04(3), 6.05, 6.06(3), 6.07, 6.09(2) - Acts Interpretation Act 1901 (Cth) ss 2, 28A – Judiciary Act 1903 (Cth) s 79(1).
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms A Duran (solicitor) | Australian Federal Police |
| For Ms Kaur and Mr Singh | Mr D Sheales | Logie-Smith Lanyon Lawyers |
HIS HONOUR:
Introduction
At the hearing on 12 January 2016, Ms Varinder Kaur and Mr Harpal Singh sought a relatively routine adjournment of applications by the Commissioner of the Australian Federal Police (the ‘Commissioner’) as to whether they should be examined pursuant to s 180 of the Proceeds of Crime Act 2002 (Cth) (the ‘Commonwealth Act’). Ms Kaur also sought an adjournment of the application as to whether she should be required to provide an affidavit of her assets and liabilities pursuant to s 39(ca) of the Commonwealth Act.
The Commissioner agreed to the adjournment. However, Ms Kaur and Mr Singh (who were jointly represented) seek their costs of the hearing on 12 January 2016. The Commissioner opposes that application.
Ms Kaur and Mr Singh argue that the Commissioner failed to use the correct form, and did not give proper notice of the applications and hearing. Each had been served by mail with notice of the application. They were subsequently told of the date upon which the contested application would be heard. They contend that service should have been effected personally, and at an earlier point of time.
The Commissioner argues that the correct form prescribed by the relevant rules was used and that service by mail was appropriate. Further, Ms Kaur and Mr Singh failed to seek consent to an adjournment prior to the hearing. Had they raised the issue with the Commissioner prior to the hearing, he would have consented and the costs would not have been incurred.
The applications raise two procedural issues of some significance. The first is the manner in which notice should be given by the Commissioner where an application has already been commenced ex parte in relation to property. The second relates to the manner of service of the notice. There is also the question of the costs of the adjourned hearing.
For the reasons set out below, I am of the view that:
(a)it was not necessary for the Commissioner to file (or serve) a fresh notice after the ex parte application;
(b)the original notice was in the required form;
(c)it was necessary for the Commissioner to serve the original notice personally on Ms Kaur and Mr Singh prior to the hearing on 12 January 2016;
(d)the Commissioner failed to serve that notice within the time prescribed by the Supreme Court (Criminal Procedure) Rules 2008 (Vic) (the ‘Victorian Rules’);
(e)however, no order for costs ought to be made as Ms Kaur and Mr Singh failed to seek consent to the adjournment prior to the hearing on 12 January 2016.
Factual background
On 14 December 2015, the Commissioner filed an ex parte application which sought restraining and related orders. The restraining orders related to one property and the proceeds of sale of a second property (the ‘subject property’). The related orders were to direct Ms Kaur to provide a s 39(ca) affidavit – that is, an affidavit provided by a suspect to a specified person within a specified period, setting out his or her interests in property and any liabilities – and for s 180 examinations of Ms Kaur and Mr Singh about their affairs.
On 15 December 2015, Riordan J, sitting in the Practice Court, granted the restraining order over the subject property ex parte. His Honour adjourned the application by the Commissioner in relation to the provision by Ms Kaur of a s 39(ca) affidavit and for s 180 examinations of both, holding that an ex parte application determination of those matters was inappropriate. Unlike the restraining orders, the Commissioner could not point to any prejudice that might be caused by putting Ms Kaur and Mr Singh on notice of those applications. Riordan J adjourned those applications so that Ms Kaur and Mr Singh could be put on notice. The Commissioner now seeks orders arising from those applications.
The adjourned application was listed for hearing on 12 January 2016. However, at the hearing, counsel for Ms Kaur and Mr Singh sought an adjournment on the basis that his clients had not been given proper notice of the hearing. The Commissioner did not oppose the adjournment, and the applications were adjourned to 29 January 2016.
It is necessary now to set out some facts relating to the knowledge of Ms Kaur and
Mr Singh as to the existence of the applications and hearing date.
On 14 December 2015, the Commissioner filed the application (the ‘14 December application‘) and affidavit in support which was heard by Riordan J.
On 16 December, the Commissioner delivered to Ms Kaur’s solicitors, Logie-Smith Lanyon Lawyers (‘LSL Lawyers‘), a letter by hand, enclosing a copy of the
14 December application, the affidavit in support, and the orders of 15 December. However, it did not provide or alert them to Riordan J’s reasons for judgment. Nor did it give notice of the date for the adjourned hearing – which had not yet been listed.
On 17 December, the Commissioner sent by express post the same documents to
Mr Singh (who at that time was not represented) at his address in Epping, Victoria.
On about 23 December, the Commissioner sought a return date for the adjourned hearing from the Court and the application was given a provisional date of
12 January 2016.
On 24 December, the Commissioner confirmed that date and sent LSL Lawyers and Mr Singh letters by express post advising them of the 12 January hearing date and time.
On 29 December, Mr Singh received his letter. However by that time, LSL Lawyers’ office had closed for the Christmas break. Accordingly, it did not come to their attention immediately and it is unknown when it arrived at the office. Nevertheless, the letter was opened by an employee on 29 or 30 December.
On 11 January, LSL Lawyers’ office re-opened. It obtained instructions to act for Mr Singh in addition to Ms Kaur.
That same day, the Court advised the Commissioner that the time for the hearing would be changed by a few hours. The Commissioner advised LSL Lawyers of the alteration, and the solicitors confirmed that it had received that notification. No question of an adjournment was raised with the Court or Commissioner.
As noted above, at the hearing on 12 January, Ms Kaur and Mr Singh sought an adjournment, to which the Commissioner consented, and sought their costs of the hearing, which the Commissioner opposes.
When is notice of an application required?
There are a number of provisions of the Commonwealth Act which deal with the giving of notice of certain applications.[1] However an application for an examination order under s 180 does not contain any explicit notice requirement.
[1]Proceeds of Crime Act 2002 (Cth) ss 26(1), 39(3A). See [31] below.
In this case, the orders of Riordan J mandated the giving of notice in relation to both the s 39(ca) affidavit and the s 180 examinations. None of the parties suggested that his Honour lacked the power to direct the Commissioner to give notice.
What is the appropriate form of notice?
The Commissioner used Form 6-6A in making the 14 December application. However, at the hearing on 12 January 2016, Ms Kaur and Mr Singh argued that
r 6.06(3) of the Victorian Rules applied and, as such, Form 6-6B should have been used by the Commissioner. Counsel for Ms Kaur and Mr Singh submitted that, had Form 6-6B been used pursuant to r 6.09(2), the Prothonotary would have been required to sign off on the hearing time and date, and would have intervened to ensure that the hearing was not listed on inadequate notice.
In response, the Commissioner argued that r 6.06(3) is not directed to the Commonwealth Act but, rather, to applications made ‘under the Act’, meaning the Confiscation Act 1997 (Vic), as defined in O 6. Accordingly, r 6.06(3) has no application in these proceedings.
In fact, both forms require the Prothonotary to ‘sign off’ on the hearing date. Thus the argument in relation to the Prothonotary’s role is irrelevant.
It is tolerably clear that the applicable form was Form 6-6A. As r 6.07 provides, unless specified otherwise, all applications under the Commonwealth Act should use Form 6-6A.[2] There are few specifications for use of other forms. Rule 6.05 makes specific provision about the form to be used for restraining order applications[3] – it mandates use of Form 6-6A. There are no other rules covering what form should be used for s 39(ca) affidavit order applications or s 180 examination order applications. Thus the general position applies and Form 6-6A must be used.
[2]Supreme Court (Criminal Procedure) Rules 2008 (Vic) r 6.07.
[3]Including (explicitly) under the Proceeds of Crime Act 2002 (Cth).
Moreover, and more importantly, the contents of the completed application in Form 6-6A conveyed all of the relevant information to Ms Kaur and Mr Singh, such as identifying the properties which were subject to the proposed orders and the precise nature of the relief (such as the provision of affidavit and examinations) sought by the Commissioner against the individuals.
I do not accept that a Commonwealth proceeding required the use of Form 6-6B. Form 6-6A was the appropriate form and the Commissioner was entitled to rely upon the original application as complying with the requirements of the Victorian Rules.
How should the application have been served?
The next question is how service of the notice upon Ms Kaur and Mr Singh should have been effected.
Ms Kaur and Mr Singh argue that the Victorian Rules alone apply to applications under the Commonwealth Act, and therefore require personal service.
Rule 6.04(3) of the Victorian Rules provides that:
A copy of an application, a copy of an affidavit and a notice given in a proceeding under the Commonwealth Act shall be served personally or in such other manner as the Court directs.
The Commissioner says that the Acts Interpretation Act (Cth) (‘AIA’) provides for service by pre-paid post to the addressee’s last known residential or business address as an alternative to personal service. Accordingly it is said that it was open to the Commissioner to effect service by post.
The provisions of the Commonwealth Act which deal with notice merely speak of ‘giving’ written notice of an application but no more.[4] Both ss 26 and 39(ca) also allow for applications to be made ex parte by the Commissioner. This is moot given the terms of the orders of Riordan J. The AIA, so it is argued, fills the gaps where there is no specific provision which applies to service in a Commonwealth Act.
[4]Proceeds of Crime Act 2002 (Cth) s 26 and 39(ca).
Section 2 of the AIA provides:
(1) This Act applies to all Acts (including this Act).
(2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.
Section 28A of the AIA (which applies by virtue of s 2 of the AIA) prima facie defines ‘service’ to mean personal service or service by pre-paid post to certain addresses where used in any Act. That is so whether the expression used is ‘serve’, ‘give’, ‘send’ or otherwise. It provides:
(1)For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b)on a body corporate—by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.
Section 28A(2) of the AIA Act then speaks to the interaction of this definition with any Commonwealth or State laws as to service:
(2) Nothing in subsection (1):
(a)affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or
(b)affects the power of a court to authorise service of a document otherwise than as provided in that subsection.
The Commissioner also relied on s 79(1) of the Judiciary Act 1903 (Cth) and argued that in the face of the asserted discrepancy between r 6.04(3) and s 28A:
The laws of each State or Territory, including laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising jurisdiction in that State or Territory in all cases to which they are applicable. [Emphasis added]
The Commissioner argued that, given the operation of s 79(1) of the Judiciary Act, the requirement for personal service in the Victorian Rules does not ‘override’ the definition in the AIA and, accordingly, service could be effected by post.
I reject this proposition. Service should be executed in accordance with the Victorian Rules. There is, as I will endeavour to explain, no work to be done under the AIA given the specific nature of the Victorian Rules in the context of an application that sought a number of forms of relief.
The short point is whether the operation of section 28A(1)(a)(ii) of the AIA in providing for another mode of service is curtailed by 28A(2)?
The Victorian Rule is made under s 25 of the Supreme Court Act 1986 (Vic) and/or the Criminal Procedure Act 2009 (Vic). The rule forms part of the law of the State of Victoria and authorises personal service only unless otherwise ordered by the Court.[5]
[5]Supreme Court (Criminal Procedure) Rules 2008 (Vic) r 1.02.
In my view, all that s 28A(1) and(2) mean is this: prima facie service may be effected personally or by pre-paid mail to certain addresses. However, if there are other Commonwealth or State laws that authorise a method of service, s 28A(1) of the AIA will not detract from, or override that method. Section 28A(1)(a)(ii) does not, in my opinion, provide for an additional method of service where there is a prescribed method already authorised under the relevant State law.[6] In other words, s 28A(1)(a)(ii) ‘affects’ the operation of the Victorian Rule which insists on personal service (unless otherwise ordered). Essentially s 28A(1) is a fall back provision where there is no prescribed method in Commonwealth or State legislation.
[6]More generally, see also Hertzfeld, Prince and Tully, Interpretation and Use of Legal Sources (2009, Thomson Reuters), [25.1.1260].
There are several other factors that support this conclusion. First, as counsel for Ms Kaur and Mr Singh pointed out, the non-specific service requirements of the Commonwealth Act apply to restraining orders – not to examination orders, which fall under ss 180 and 182. Sections 180 and 182 are silent as to service requirements. Given that silence, it may be assumed that r 6.04(3), which specifically governs the requirements of service of all forms of applications under the Commonwealth Act, is the applicable provision, rather than a catch-all in the AIA.
Second, and this flows from the first point, the application of the Victorian Rules alone provide for consistent modes of service in all forms of applications made under the Commonwealth Act.
Third, these applications raise service issues in terms of the exercise of personal rights, particularly in the case of ss 180 and 182 examinations. The Victorian Rules reflect the need to ensure that a person is on notice as to such an application.
Finally, as a general rule, where there is some conflict between a State law and a Commonwealth law, the Commonwealth law prevails. However, there is no conflict here. The AIA, which applies generically to all legislation, is not intended to override and render null a rule which is designed to provide the exhaustive means of service in precisely these types of applications.[7]
[7]Acts Interpretation Act 1901 (Cth) s 2(2).
I should briefly mention the decision in The Site Foreman Pty Ltd v Brand,[8] which was relied upon by the Commissioner. In that case, the Court was faced with a discrepancy between the service requirements under the Uniform Civil Procedure Rules 2005 (NSW) (the ‘UCPR’), which required personal service, and s 28A of the AIA, which, as discussed above, prescribes more forgiving service requirements. The Court found that, despite the NSW Rules, service could be effected under s 28A other than by personal service. The Commissioner analogised the present situation, in which state rules would require personal service, but s 28A of the AIA would provide another option.
[8](2011) 81 NSWLR 96, 101 [21] – 102 [24] (‘The Site Foreman’).
However, The Site Foreman concerned a matter under the Corporations Act 2001 (Cth) and was subject to s 5C of the Corporations Act, which in terms stated that the AIA applies. Indeed, the Court’s attention does not appear to have been drawn to s 2 of the AIA, a provision which is fundamental to the operation of that Act. Accordingly, I do not accept the Commissioner’s analogy with The Site Foreman.
For completeness, I should add that the cases which were followed in The Site Foreman were apt to the particular legislative context, but not to the position in this case. For instance, the Court followed Austar Finance Group Pty Ltd v Campbell[9] (and, indeed, some of the other cases cited follow Austar as well).[10] Austar dealt with the same legislative context as that in The Site Foreman. Thus s 5C of the Corporations Act was significant there, but is not of relevance here. Further, the Court noted that the rule for service under the UCPR was a general one – it applied broadly to service of originating processes in proceedings in the Supreme Court of New South Wales. It is not surprising that a court would be slow to interpret a broad rule for service, which applies generically across a range of different situations, as shutting out other options for service that apply in a more targeted way to particular applications.
[9](2007) 215 FLR 464, [40] (‘Austar’).
[10]For example: Balmain Leagues Club Ltd v Lankry [2009] NSWSC 1218, [1].
In summary, s 79(1) of the Judiciary Act is not engaged and personal service, as required by the Victorian Rules (which was not performed by the Commissioner), was the appropriate manner of service of the applications.
Costs
Although personal service was not effected, it is clear that the solicitors for Ms Kaur and Mr Singh were aware by 11 January (at the latest), of the application scheduled for 12 January 2016.
It also seems clear that even if the service by post was regular (which it was not), its recipients were short-served given the provisions in the Victorian Rules for exclusion of the Christmas holiday break (being 24 January to 9 January).[11]
[11]Supreme Court (Criminal Procedure) Rules 2008 (Vic) r 1.09.
However, it was only immediately prior to the commencement of the hearing that the respondents’ counsel advised counsel for the Commissioner that his clients were unable to proceed with the application and that they would be seeking an adjournment of the application on that day.
It is indisputable that the solicitors knew on 11 January (at the latest) of the 12 January applications. Had the lawyers for the respondents notified the Commissioner on the day before the hearing, it is reasonable to expect that the parties would have been able to reach an agreement to adjourn the application to another day. Where a party is concerned about not being able to respond adequately to an application and believes an adjournment is necessary, his or her opponent (or opponents) should be told as soon as that is appreciated. Co-operation between parties is critical in all forms of litigation. A party who simply waits until he or she reaches the door of the court (as happened here) and then, without notice, seeks the costs of the adjournment, cannot expect to recover those costs absent an unreasonable refusal of the adjournment.
In these circumstances, I am not persuaded that Ms Kaur and Mr Singh should have an order for costs in their favour.
I do not propose to make any order as to costs.
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