The Commissioner of the Australian Federal Police v Dickson

[2020] NSWSC 869

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Commissioner of the Australian Federal Police v Dickson & Ors [2020] NSWSC 869

Hearing dates:

18 June 2020

Date of orders:

18 June 2020

Decision date:

06 July 2020

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Pursuant to s 95 of the Proceeds of Crime Act 2002 (Cth) (Act), the Court declares that the property in the Schedule to these Orders was forfeited to the Commonwealth immediately before the start of 29 September 2018, pursuant to s 92(1) of the Act.

(2) These orders be entered immediately.

SCHEDULE – see paragraph [22]

Catchwords:

PROCEEDS OF CRIME – declarations – declaration sought that various property forfeited to the Commonwealth – order of the Court required to register Commonwealth as owner of various property – restraining orders previously made by the Court

Legislation Cited:

Criminal Code (Cth)

Proceeds of Crime Act 2002 (Cth)

Cases Cited:

Commonwealth v Issakidis [2018] NSWSC 378

Issakidis v R [2019] NSWCCA 302

Issikadis v The Queen [2020] HCASL 121

Category:

Procedural and other rulings

Parties:

The Commissioner of the Australian Federal Police (Plaintiff)
Anthony James Dickson (First Defendant)
Michael John Issakidis (Second Defendant)
Prima Ultima Pty Ltd (Third Defendant)
Dagmar Maxianova (Fourth Defendant)
Dampeir Finance FX Solutions Limited (New Zealand Company no 2433960) (Fifth Defendant)
McFrolick Pty Ltd (Sixth Defendant)
Sydney City Prestige Wholesale Pty Ltd (Seventh Defendant)
Ipswich City Council (Eighth Defendant)
Donrecka Issakidis (Ninth Defendant)
Hilldon Pty Limited (Tenth Defendant)
Bristol Wattle Properties Pty Ltd t/as Dampier Finance Group (Eleventh Defendant)
Dampier Finance FX Strategies Limited (New Zealand Company No 2433038) (Twelfth Defendant)
Jodaway Pty Limited (Thirteenth Defendant)
Robin Thomas Ross Harper (Fourteenth Defendant)
Wee Sleekit Pty Limited (Fifteenth Defendant)

Representation:

Counsel:
C Conde (Plaintiff)
R Candelori (Solicitor) (Second Defendant)
L Henry (Solicitor) (Ninth, Tenth and Thirteenth Defendants)

Solicitors:
AFP (Plaintiff)
McGirr Lawyers (Second Defendant)
Macpherson Kelley (Ninth, Tenth and Thirteenth Defendants)

File Number(s):

2012/108692

Publication restriction:

Nil

Judgment

1. On 18 June 2020 I heard an application pursuant to s 95 of the Proceeds of Crime Act 2002 (Cth) (“the Act”) for forfeiture of certain identified property set out in the schedule to the Notice of Motion filed on 1 May 2020.

2. After hearing submissions I granted the orders sought and executed short minutes of order entering the orders immediately.

3. These are my reasons for making those orders.

Restraining Orders

4. In 2012 orders were made by McCallum J restraining certain items of “Relevant Property” pursuant to s 18 of the Act.

5. In November 2013 Harrison J made orders restraining a further four items listed as “Relevant Property” pursuant to s 18 of the Act.

6. In April 2018 there was an amendment to the description of two of the items of “Relevant Property” pursuant to the slip rule. In May 2018 an ancillary order was made pursuant to s 39 of the Act to amend the restraining orders to cover item 28 of the “Relevant Property”.

Relevant Criminal Proceedings

7. In April 2012 the second defendant was arrested and subsequently charged with conspiring to dishonestly cause a loss to the Commonwealth and money laundering offences contrary to s 135.4(5) of the Criminal Code (Cth), and conspiring to deal with property of a value of $1,000,000 believed to be the proceeds of crime contrary to ss 11.51 and 400.31 of the Criminal Code.

8. On 13 June 2017 the second defendant was convicted of the offences in the Supreme Court.

9. On 29 March 2018 he was sentenced by Harrison J to a sentence that included a fixed non-parole period of 7 years and 6 months, expiring on 15 April 2025: Commonwealth v Issakidis [2018] NSWSC 378.

10. A notice of appeal against conviction filed by the second defendant was heard and dismissed on 20 December 2019: Issakidis v R [2019] NSWCCA 302.

11. On 24 April 2020, the High Court of Australia dismissed the second defendant’s application for special leave to appeal from that decision: Issikadis v The Queen [2020] HCASL 121.

12. I am satisfied on the evidence contained in the affidavit of Steven Scott Davidson, that following the conviction and sentence of the second defendant, notices pursuant to s 92A of the Act were prepared and distributed to all relevant interest holders. I am satisfied that no objection or notice was received in response.

13. Section 92A of the Act provides:

92A Notice of date of forfeiture under this Part, etc.

(1) The *responsible authority for the *restraining order referred to in paragraph 92(1)(b) must, before property is forfeited under this Part, take reasonable steps to give any person who has or claims, or whom the authority reasonably believes may have, an *interest in the property a written notice stating:

(a) the date on which the property will be forfeited under this Part unless it is excluded from forfeiture; and

(b) the effect of section 93 (which deals with *extension orders); and

(c) that the person may be able to apply for an order under one of the following sections in relation to the property:

(i) section 29 (which deals with the exclusion of property from *restraining orders);

(ii) section 94 (which deals with the exclusion of property from forfeiture);

(iii) section 94A (which deals with compensation).

(2) However, the *responsible authority need not give a notice to a person under subsection (1) if the person has made:

(a) an application for an *extension order in relation to the property; and

(b) an application under section 30, 31 or 94 in relation to the property.

14. Section 95 of the Act provides:

95 Court may declare that property has been forfeited under this Part

The court that made the *restraining order referred to in paragraph 92(1)(b) may declare that particular property has been forfeited under this Part if:

(a) the *responsible authority applies to the court for the declaration; and

(b) the court is satisfied that that property is forfeited under this Part.

15. The reason stated by Mr Davidson for seeking a declaration pursuant to s 95 of the Act, as opposed to the automatic operation of the Act being sufficient, is that the Queensland Land Titles Office refused to register the Commonwealth as owner of certain real properties which have been forfeited to the Commonwealth, and indicated that further evidence was needed; for example, an order of the Court confirming that the property has forfeited to the Commonwealth.

16. That need underpins the basis of the plaintiff’s notice of motion seeking the declaration.

17. I am satisfied that this is an appropriate basis for seeking the declaration and that making that declaration is a proper exercise of this Court’s power in those circumstances.

18. I take into account and accept that s 97(1)(a) of the Act provides that despite s 96 of the Act, registrable property as defined in the Act does not vest in the Commonwealth until the applicable registration requirements have been met. I also accept that s 97(1)(c) provides that the Commonwealth is entitled to be registered as the owner of the property in the circumstances that present here and third, that the Official Trustee, pursuant to s 97(1)(d) of the Act has the power on behalf of the Commonwealth to do or authorise the doing of anything necessary or convenient to obtain the registration of the Commonwealth as the owner.

19. I note the safeguards under the Act including ss 99 and 107.

20. In any event, it seems to me that the second defendant has exhausted all possible rights of appeal, his application for special leave to appeal his conviction having been dismissed in April 2020.

21. I am satisfied that the declaration sought in the Notice of Motion of 1 May 2020 should be made.

Orders

22. I make the following orders:

1. Pursuant to s 95 of the Proceeds of Crime Act 2002 (Cth) (Act), the Court declares that the property in the Schedule to these Orders was forfeited to the Commonwealth immediately before the start of 29 September 2018, pursuant to s 92(1) of the Act.

2. These orders be entered immediately.

SCHEDULE

(1)       The interest of Michael John Issakidis in Villa X, XX XXXXX XX Ave, Benowa QLD (Lot 7, Survey Plan 102563, Title ref:

XXXXX XXX,Queensland).

(2)       Princess 57 Motor Yacht, including interest of Dampier Finance FX Solutions Limited (NZ company no. 2433690) (HIN:

                     XXXXX XXXXX XXXX).

(3)       Rolls Royce Phantom Sedan motor vehicle, registration XXX (Queensland), including interest of Dampier Finance FX Solutions Limited (NZ

                    company no. 2433960) (VIN: XXXXX XXXXX XXXXX XXX).

(4)       Aston Martin DBS Coupe motor vehicle, registration XXX (Qld) (VIN: XXXXX XXXXX XXXXX XX).

(5)       Rolls Royce Phantom Sedan motor vehicle, registration XXX (Qld), including interest of Dampier Finance FX Solutions Limited (NZ company

                     no. 2433960) (VIN: XXXXX XXXXX XXXXX XX).

(6)       Proceeds of the sale of Porsche 911 Carrera motor vehicle, registration XXX (Qld) (VIN: XXXXX XXXXX XXXXX XX).

(7)       The interest of Hilldon Pty Ltd (ACN 073 248 389) in XX XXXXX Road, Redbank QLD 4301 (Lot 140, Survey Plan 173937, Title Ref:

XXXXX XXX, Queensland).

(8)       The interest of Donrecka Issakidis in XX XXXXX XXXXX X Crescent, Paradise Point QLD (Lot 655, Survey Plan 156109, Title Ref:

XXXXX XXX, Queensland).

(9)       The interest of Dampier Finance FX Solutions Limited (NZ company no. 2433960) in XX XXXXX XXXXX X Crescent, Paradise Point QLD (Lot

          655, Survey Plan 156109, Title Ref: XXXXX XXX, Queensland).

(10)      The interest of Donrecka Issakidis in X XXXX Crescent, Southport, QLD (Lot 1404, Survey Plan 165604, Title Ref: XXXXX XXX,

           Queensland).

(11)      The interest of Dampier Finance FX Solutions Limited (NZ company no. 2433960) in X XXXX Crescent, Southport, QLD (Lot 1404, Survey

           Plan 165604, Title Ref: XXXXX XXX, Queensland).

(12)      Mercedes C230 motor vehicle, registration XXXXX X (Qld) (VIN: XXXXX XXXXX XXXXX XX).

(13)      Lamborghini Spyder motor vehicle, registration XXX (Qld) (VIN: XXXXX XXXXX XXXXX XX).

(14)      Hyundai Tucson motor vehicle, registration XXXXX (Qld) (VIN: XXXXX XXXXX XXXXX XX).

(15)      The interest of Jodaway Pty Ltd (ACN 099 765 036) in X/XX, XX XXXXX XXXXX Court, Wynnum West, QLD (Lot 9 in Survey Plan 150828

          (Title Ref: XXXXX XXX) Queensland), the net proceeds of sale of that property and any interest earned thereon.

(16)      The interest of Jodaway Pty Ltd (ACN 099 765 036) in XX/XX, XX XXXXX XXXXX Court, Wynnum West, QLD (Lot 14 in Survey Plan 150828

          (Title Ref: XXXXX XXX) Queensland).

(17)      The interest of Jodaway Pty Ltd (ACN 099 765 036) in XX/XX, XX XXXXX XXXXX Court, Wynnum West, QLD (Lot 17 in Survey Plan 150828

          (Title Ref: XXXXX XXX) Queensland).

(18)      The interest of Jodaway Pty Ltd (ACN 099 765 036) in XX/XX, XX XXXXX XXXXX Court, Wynnum West, QLD (Lot 18 in Survey Plan 150828

          (Title Ref: XXXXX XXX) Queensland).

(19)      The interest of Jodaway Pty Ltd (ACN 099 765 036) in XX/XX, XX XXXXX XXXXX Court, Wynnum West, QLD (Lot 46 in Survey Plan 150828

           (Title Ref: XXXXX XXX) Queensland).

(20)      The interest of Jodaway Pty Ltd (ACN 099 765 036) in XX/XX, XX XXXXX XXXXX Court, Wynnum West, QLD (Lot 47 in Survey Plan 150828

           (Title Ref: XXXXX XXX) Queensland).

(21)      The interest of Jodaway Pty Ltd (ACN 099 765 036) in XX/XX, XX XXXXX XXXXX X Court, Wynnum West, QLD (Lot 72 in Survey Plan

          150828 (Title Ref: XXXXX XXX) Queensland).

(22)      The interest of Jodaway Pty Ltd (ACN 099 765 036) in XX/XX, XX XXXXX XXXXX X Court, Wynnum West, QLD (Lot 74 in Survey Plan

           150828 (Title Ref: XXXXX XXX) Queensland).

(23)       The interest of the Second Defendant (as lessor) in the lease granted over the following real property Villa X, XX XXXXX XX Avenue,

            Benowa QLD (Lot 7, Survey Plan 102563 (Title Ref: XXXXX XXX), Queensland).

(24)      The interest of the Ninth Defendant (as lessor) in the lease granted over the following real property X XXXX Crescent, Southport QLD (Lot

           1404, Survey Plan 165604 (Title Ref: XXXXX XXX) Queensland).

(25)      Rental income derived from the following real property Villa X, XX XXXXX XX Avenue, Benowa Queensland (Lot 7, Survey Plan 102563

          (Title Ref: XXXXX XXX) Queensland).

(26)      Rental income derived from the following real property X XXXX Crescent, Southport QLD (Lot 1404, Survey Plan 165604 (Title Ref:

XXXXX XXX) Queensland).

(27)      Funds standing to the credit of National Australia Bank Account Number XX-XXX-XXXX in the name of NH Partnership Pty Ltd (including

           any funds deposited into this account after 21 November 2013).

(28)      Funds standing to the credit of National Australia Bank Account BSB Number 084-004, Account Number XX-XXX-XXXX.

(29)      Funds standing to the credit of National Australia Bank Account Number XX-XXX-XXXX in the name of DV Issakidis (including any funds

           deposited into this account after 21 November 2013).

**********

Amendments

07 July 2020 - Amendments made to cover page to correct Catchwords and add representation.

Amendments made to paragraphs [9] correcting sentencing judge.

Decision last updated: 07 July 2020