The Commissioner of the AFP v Kaur and Singh - [2016] VSC 13

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…

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 The Commissioner of the AFP v Kaur and Singh

Details

AGLC: The Commissioner of the AFP v Kaur and Singh [2016] VSC 13
Case: [2016] VSC 13
Decision Date: 9 February 2016

CaseChat Overview and Summary

The Commissioner of the Australian Federal Police applied to the Supreme Court of Victoria for an order under the Proceeds of Crime Act 2002 (Cth) to restrain and examine the proceeds of crime held by the respondents, Kaur and Singh. The court was tasked with deciding whether the Commissioner's applications should be adjourned pending the outcome of criminal proceedings against the respondents, and whether the form of notice served on the respondents complied with statutory requirements. The respondents argued that the applications should be dismissed because they were not properly served and that the court should not proceed with the applications until the outcome of the criminal proceedings.

The court considered the statutory requirements for service of notice under the Proceeds of Crime Act 2002 (Cth) and the Supreme Court (Criminal Procedure) Rules 2008 (Vic). The court found that the Commissioner had complied with the requirements for personal service and that the form of notice was acceptable. The court also considered the appropriate time to proceed with the applications, noting that the criminal proceedings were not yet finalised. The court found that the applications should not be dismissed on the basis of the manner in which notice was given, and that the applications should proceed in the circumstances.

The court held that the applications for a restraining order, an examination order, and ancillary orders should not be dismissed on the basis of the manner in which notice was given. The court found that the Commissioner had complied with the statutory requirements for service of notice and that the form of notice was acceptable. The court also held that the applications should not be adjourned pending the outcome of the criminal proceedings, and that the applications should proceed in the circumstances. The court made an order that the applications be not dismissed on the basis of the manner in which notice was given.

Orders