The Commissioner of the Australian Federal Police v Mac

[2013] NSWSC 917

Supreme Court

New South Wales

Medium Neutral Citation:	The Commissioner of the Australian Federal Police v Mac [2013] NSWSC 917
Hearing dates:	10 July 2013
Decision date:	10 July 2013
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Matter adjourned for mention.
Catchwords:	PROCEDURE - proceeds of crime - application to have matter listed for mention and to have defendant in court to enable settlement negotiations to proceed - application granted
Legislation Cited:	Civil Procedure Act 2005 Crimes (Administration of Sentences) Act 1999 Proceeds of Crime Act 2002 (Cth)
Category:	Procedural and other rulings
Parties:	The Commissioner of the Australian Federal Police (Plaintiff) Tien Ly Mac (Defendant)
Representation:	Counsel: Mr M Hassall (Plaintiff) Mr GJ Jones (Defendant) Solicitors: Proceeds of Crime Litigation Australian Federal Police (Plaintiff) Trivo Lawyers (Defendant)
File Number(s):	2011/245126
Publication restriction:	None

Judgment

1. These proceedings were brought under the Proceeds of Crime Act 2002 (Cth). The defendant Tien Ly Mac has made an application for an exclusion order under that Act, the period of hearing and determination of which was extended by order made by Beech-Jones J to 24 August 2013. That application is listed for hearing on 23 and 24 July 2013.

1. By consent, in February 2013, Johnson J made orders sought under s 13 of the Act by the plaintiff, the Commissioner of the Australian Federal Police, for the examination of the defendant, who is presently in custody. Consent orders were also made in relation to the interest in the property affected by the restraining order presently in force of RHG Mortgage Corporation Limited.

1. Since then, in accordance with the Commissioner's Litigation Settlement policy, which was in evidence, the parties have pursued settlement negotiations.

1. The matter came before me today in the Duty Judge's list. The defendant's application for an order for mediation was then not finally pressed, in circumstances where the hearing is fast approaching and enquiries made by the Commissioner had revealed that a court-appointed mediator was not available within the required timeframe.

1. For the defendant an application was then made for the matter to be listed for further mention next week, at a time when the defendant is present, so that efforts to resolve the matter could be pursued effectively. That order was submitted to accord with the requirements of s 56 of the Civil Procedure Act 2005, which it was common ground imposes relevant obligations on both the Court and the parties.

1. Section 56 relevantly provides:

"56 Overriding purpose

(cf SCR Part 1, rule 3)

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court."

1. The Commissioner did not consent to that application, submitting that the settlement negotiations could continue without the steps proposed for the defendant. For the defendant the potential difficulties which might emerge, if there was to be any delay and what would be saved, if a settlement was achieved before the approaching hearing, were submitted to favour the course proposed being acceded to.

1. In the result, having ascertained that suitable facilities are available, I have concluded that the matter should be listed for mention on Thursday, 18 July at 9.30 am before me and that the defendant should be brought to Court that day. I am satisfied that those steps are necessary for the purpose of the proper, efficient and effective conduct of these proceedings (see s 77 of the Crimes (Administration of Sentences) Act 1999).

1. They also accord with what the dictates of justice requires in the circumstances which have arisen (see s 58 of the Civil Procedure Act) and will facilitate the resolution of these proceedings, consistently with the requirements of s 57, which provides:

"57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1)."

1. Accordingly, I will ask the Registrar to take the steps necessary to have the defendant brought to Court on 18 July.

Order

1. For the reasons given, I adjourn the matter for mention before me at 9.30am on Thursday, 18 July 2013.

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Decision last updated: 10 July 2013