The Commissioner of the Australian Federal Police v Cranston (No 2)

[2017] NSWSC 673

Supreme Court

New South Wales

Medium Neutral Citation:	The Commissioner of the Australian Federal Police v Cranston and Ors (No 2) [2017] NSWSC 673
Hearing dates:	26 May 2017
Date of orders:	26 May 2017
Decision date:	29 May 2017
Jurisdiction:	Common Law
Before:	Fullerton J
Decision:	1. Time for compliance with Order 180 of the summons by the 9th defendant is extended until close of business on 29 May 2017. 2. Time for compliance with Order 185 of the summons by the 13th defendant is extended until close of business today, 26 May 2017. 3. Costs of the motion are to be borne by the 9th and 13th defendants.
Catchwords:	Orders under the Proceeds of Crime Act 2002 (Cth) – Extension of time to comply with orders under s 39(1)(ca) of the Act
Legislation Cited:	Proceeds of Crime Act 2002 (Cth)
Category:	Principal judgment
Parties:	The Commissioner of the Australian Federal Police (Plaintiff) Daniel Simon Hausman (9th Defendant) Jessica Van Schreven 13th Defendant)
Representation:	Counsel: D McLure SC / D Habashy (Plaintiff) H Grace (9th Defendant and 13th Defendant)   Solicitors: Criminal Assets Litigation, Australian Federal Police (Plaintiff) W Korn (9th Defendant and 13th Defendant)
File Number(s):	2017/146280

Judgment

1. HER HONOUR: By notice of motion filed on 26 May 2017, the 9th and 13th defendants to the summons filed on 16 May 2017 seek an extension of time for compliance with orders made on 16 May 2017 that each of them file a statement of assets and liabilities pursuant to s 39(1)(ca) of the Proceeds of Crime Act 2002 (Cth) (“the POCA”), an order ancillary to restraining orders made under the Act.

2. An affidavit from their solicitor, Warwick Korn, dated 25 May 2017 was read in support of the summons.

3. In essence, Mr Korn states that although both of his clients were served with the orders as part of a bundle of documents on the evening of 18 May 2017 and the afternoon of 22 May 2017, neither have had the opportunity to receive legal advice as to their legal obligations under the orders. Mr Korn was not formally retained until 24 May 2017. He states that it was not until that time that he first became aware of his clients’ obligations to provide a statement of assets and liabilities in the form annexed as schedule 101 to the orders served on each of them.

4. Mr Korn also informs me that the 13th defendant has financial interests in New Zealand and that his current enquiries do not enable him to ascertain with certainty the nature of the interests she holds. He also advises that the seizure of the 9th defendant’s computer and telephone has contributed to the difficulties he has encountered in assisting the 9th defendant to prepare his statement of assets and liabilities. In addition, as at the date of swearing the affidavit, Mr Korn advises that no company searches had been undertaken by him to determine whether either of his clients holds any beneficial or non-beneficial interests in any Australian company. Finally, he informs me that he will need time to confer with his clients, their accountants and other financial advisors, and potentially to seek the advice of counsel, before the statement of assets and liabilities is furnished in compliance with the orders I made.

5. Mr McLure SC, who appeared for the Commissioner of the Australian Federal Police, opposed any extension of time being granted. He drew my attention to particular paragraphs in the affidavit of Mr Burtenshaw of 15 May 2017 sworn in support of the summons where the extent of the involvement of both defendants in a range of criminal activities the subject of the ongoing investigation by the Australian Federal Police is detailed. Mr McClure placed particular emphasis on the suspected involvement of the 9th defendant in conduct amounting to blackmail and the laundering of funds involved in the perpetration of that offence, and upon the extent of the activity of both defendants grounding Mr Burtenshaw’s suspicion that they were directly involved in the perpetration of the taxation fraud.

6. The obligation to furnish the sworn statement of assets and liabilities is imposed upon each of the defendants. While it may be necessary, perhaps even desirable, that legal advice is sought in order to ensure full compliance with the order, the obligation is not conditional upon receipt of that advice and even less on the defendants’ legal adviser seeking the advice of other professionals. The time fixed for compliance with the order, even if the statement needs to be augmented as more information comes to light, is in recognition of the operation and reach of the civil forfeiture regime under the POCA and the need to ensure that any property that may be the subject of forfeiture or a pecuniary penalty order is able to be identified by the Commissioner and, where necessary, orders made restraining the disposition or dealing in that property. I note that ancillary orders I made on 16 May 2017 in respect of a large number of defendants are in identical terms to those binding the 9th and 13th defendants.

7. In a proceeding of this level of complexity, involving as it does a large number of defendants and correspondingly wide and varied interests in property held both within this jurisdiction and beyond the jurisdiction, there is an overriding public interest in strict compliance with the orders of the Court, subject only to the Court being persuaded that orders of one kind or another under the Act ought be varied, or the time for compliance with them extended, where the Court is satisfied that the interests of justice dictate that occur, including by circumstances that render compliance especially onerous as, for example, ill health or incapacity.

8. I was not satisfied on the evidence before me that the 9th or the 13th defendants were unable comply with the order of the Court and within the time fixed for compliance to warrant an extension of time to 8 June 2017, the date proposed by Mr Grace of counsel who appeared on the application. I did however allow a modest extension of time in light of the need to hear and determine the application. I also ordered the defendants to pay the plaintiff’s costs of the application.

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Decision last updated: 19 June 2017