The Commissioner of the Australian Federal Police v Hills Greenery Pty Ltd

[2023] NSWSC 559

Supreme Court

New South Wales

Medium Neutral Citation:

The Commissioner of the Australian Federal Police v Hills Greenery Pty Ltd [2023] NSWSC 559

Hearing dates:

25 May 2023

Date of orders:

25 May 2023

Decision date:

25 May 2023

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See [14]

Catchwords:

CIVIL PROCEDURE — hearings — adjournment — where third defendant sought orders in notice of motion — where plaintiff considered that a constitutional issue might arise in relation to one of the orders sought — where plaintiff needed further time to consider whether a constitutional issue might arise and sought an adjournment to the hearing of the motion — where all parties affected by the orders sought consented to the adjournment — whether to grant the adjournment — adjournment granted

Legislation Cited:

Commonwealth Constitution

Civil Procedure Act 2005

Judiciary Act 1903 (Cth)

Proceeds of Crime Act 2002 (Cth)

Uniform Civil Procedure Rules 2005

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

The Commissioner of the Australian Federal Police (P)
Hills Greenery Pty Ltd (D1)
NSW Greenery Pty Limited (D2)
Bilal Hassan Allam (D3)
ATM Greenland Pty Limited (D4)

Representation:

Counsel:
S Clemmett (P)
J T Johnson (D1)
K Elkheir (D2)
G Jones (D3)
T Barber (D4)

Solicitors:
Minter Ellison (P)
Auslex (D1)
Cordoba Legal (D2)
Allied Lawyers (D3)
Barber Lawyers (D4)

File Number(s):

2020/102598

Publication restriction:

Not Applicable

EX TEMPORE JUDGMENT

1. This is an application for an adjournment by the Commissioner of the Australian Federal Police (“the Commissioner”) of a Notice of Motion filed 16 May 2023 (“the Motion”). The Motion has been fixed for hearing this morning before me as the Duty Judge.

Background

2. The Court gave directions with respect to the hearing of the Motion which obliged the parties to take steps for the orderly preparation of the matter, including by filing evidence and submissions to enable the Court to hear and determine it.

Possible Constitutional Issue

3. By email of 23 May 2023, the solicitor for the Commissioner informed the Court that, although the Commissioner had consented to the directions made by the Registrar and had anticipated that any argument on the Motion would be short thereby making it appropriate to be dealt with in the Duty List, the Commissioner had taken the view that Order 2 sought in the Motion might give rise to a constitutional issue. Proposed Order 2 reads: "Pursuant to Uniform Civil Procedure Rules 36.16(2)(b) the orders made by Walton J on 27 March 2023 be set aside".

4. The solicitor for the Commissioner informed the Court that whether the relevant order did actually give rise to a constitutional issue was under consideration not by the Commissioner himself, but by a part of the Commonwealth Attorney‑General's Department called the Office of Legal Services Coordination.

5. The solicitor informed the Court in later clarifying correspondence, that the constitutional issue which may arise was that the relevant order sought in the Motion relied upon r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 – naturally, State legislation – to seek to set aside an order made by the Court in the exercise of the Court's federal jurisdiction.

6. The clarifying correspondence said as follows:

“This calls for consideration of whether the State law is ‘picked up’ by s 79 of the Judiciary Act 1903 (Cth) in this case. Consideration of s 79 of the Judiciary Act 1903 (Cth) may involve application of the test for inconsistency under s 109 of the Constitution.”

7. I note that s 79(1) of the Judiciary Act 1903 provides:

“The laws of each State or Territory, including the 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 federal jurisdiction in that State or Territory in all cases to which they are applicable.”

8. Counsel appearing this morning for the Commissioner was not in a position, based upon her instructions, to provide any submission to this Court identifying a specific provision of either the Constitution or a law of the Commonwealth which “otherwise provided” for the purposes of s 79(1) of the Judiciary Act. Nor was she in a position to provide the Court with any submissions of substance to enable the Court to consider whether the possibility raised of a constitutional matter was real possibility.

Position of the third defendant

9. Confronted with this application for an adjournment of the hearing of the Motion, the party bringing the Motion – who is the third defendant in these proceedings and who was directly affected by orders made by Walton J – informed the Court that it consented to the adjournment.

Discernment

10. I am not required, in order to make an order which reflects the consensus of the relevant active parties, to make any determination at all as to whether, in substance, any constitutional question arises.

11. It is curious, to say the least, that the Commissioner, having engaged the Court's jurisdiction to make orders in accordance with federal legislation, being the Proceeds of Crime Act 2002 (Cth), would suggest that a procedural provision, which is a standard one in all Rules of the Supreme Court throughout Australia, dealing with a judgment heard in the absence of a party and enabling the Court to set aside that judgment as a matter of discretion, could, in the absence of a specific identified contrary federal legislative provision, be considered to warrant any issue arising under the Constitution.

12. If it was so, then it may give rise to significant difficulties in this Court undertaking any hearings under the Proceeds of Crime Act 2002 in the absence of any party and may well lead to a circumstance where the Court declines to exercise its jurisdiction where parties are not present. No doubt, the Commissioner has carefully considered that position in seeking an adjournment today.

13. However, the fact is that whatever my view may be is entirely irrelevant. Those that administer the laws of the Commonwealth within the Attorney-General's Department will take their time to make their mind up regardless of when matters are fixed in this Court, as to when they realise that there may be a constitutional question arising, and if so on what basis that may be. It seems that the provisions of s 56 of the Civil Procedure Act carry little, if any, significance to the Commissioner.

Orders

14. I make the following orders by consent:

1. Vacate orders 2 and 3 made by the registrar on 16 May 2023.

2. Vacate the hearing listed for today of the third defendant's Notice of Motion filed on 16 May 2023.

3. Adjourn the proceedings, including the Motion for directions, before the Registrar of the Common Law Division to 10 July 2023.

4. Reserve all questions of costs.

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Decision last updated: 15 June 2023