The Commissioner of the Australian Federal Police v Ye and Fang (Ruling)

[2016] VCC 814

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
 Suitable for Publication

CONFISCATION LIST

Case No. CI-16-02260
CI-16-02262

IN THE MATTER of the Proceeds of Crime Act 2002 (Cth)

BETWEEN

THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE	Applicant
v
Huan Wen YE	First Respondent
and
Zhe FANG	Second Respondent

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2016
DATE OF RULING:	14 June 2016
CASE MAY BE CITED AS:	The Commissioner of the Australian Federal Police v Ye & Fang (Ruling)
MEDIUM NEUTRAL CITATION:	[2016] VCC 814

RULING
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Subject:  CRIMES COMPENSATION

Catchwords: Proceeds of crime – application for a restraining order pursuant to s25(17) of the Proceeds of Crime Act 2002 (Cth)

Legislation Cited:     Proceeds of Crime Act 2002 (Cth), s25; Acts Interpretation Act (Cth),  s28(1)(a)(ii); Supreme Court (Criminal Procedure) Rules 2008 (Vic), r6.04(3); County Court Miscellaneous Rules 2009, o10

Cases Cited:The Commissioner of the Australian Federal Police v Kaur & Singh [2016] VSC 13

Ruling:The application for a restraining order adjourned to enable service of application in accordance with the Rules.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms A Duran (solicitor) Mr T McLaughlin	Australian Federal Police
For the Respondents	No Appearance	-

HIS HONOUR:

1       This is an application by the Australian Federal Police (“AFP”) for a restraining order in relation to more than $27,000 in Australian currency and Chinese Yuan seized from the residence of the respondent (YE) on 2 July 2013 and, more than $25,000.00 seized from the respondent (FANG), when search warrants were executed by AFP members.  The applications are supported by an affidavits of Emily Nicolson, a Federal Agent, sworn 26 May, 2016 and, a number of exhibits.

2       Since the seizures and execution of the warrants, on 18 September 2015, the respondent (YE) has pleaded guilty to the offence of aid, abet, counsel or procure the dealing in proceeds of crime.  On 15 December 2015, he was convicted by a judge of this Court and was sentenced to a term of imprisonment of three years and eight months.  The respondent (YE) remains in custody and is serving the sentence at Fulham Correctional Centre.

3       On 18 September 2015, the respondent (FANG) pleaded guilty to the offence of aid, abet, counsel or procure the dealing in proceeds of crime.  On 15 December 2015, he was convicted by a judge of this Court and was sentenced to a term of imprisonment of three years and eight months.  The respondent (FANG) remains in custody and is serving the sentence at Fulham Correctional Centre. 

4       A copy of the applications and, the affidavit in support and exhibits, was served upon the respondents by express post mail on 27 May 2016.  Proof of service is provided by an affidavit of service sworn by Shona-Brie Smith sworn 31 May 2016.

5       When the applications were called on before me, there was no appearance by the respondents.

6       Ms Duran, who appeared on the applications for the applicant, properly brought to my attention a ruling of Justice J Forrest in The Commissioner of the Australian Federal Police v Kaur & Singh [2016] VSC 13. That was a ruling given on an application for, inter alia, examination orders and, his Honour was called upon to decide whether service by post of the application and materials was effective service. In my opinion, I am bound by that ruling.

7       The point in issue in Kaur was whether s28A(1)(a)(ii) of the Acts Interpretation Act (Cth), which permitted service of the application by post, has any role to play in the face of Rule 6.04(3) of the Supreme Court (Criminal Procedure) Rules 2008 (Vic) which required that service of the application be personal. His Honour, in that case, ruled that service of the application had not been effected because it was not served personally.

8       In his ruling, his Honour said, at paragraph 41:

“41.In my view, all that s 28A(1) and (2) means is this:  prima facie service may be effected personally or by pre-paid mail to certain addresses.  However, if there are other Commonwealth or State laws that authorise a method of service, s 28(1) of the AIA will not detract from, or override that method.  Section 28A(1)(a)(ii) does not, in my opinion, provide for an additional method of service where there is a prescribed method already authorised under the relevant State law.  In other words, s 28A(1)(a)(ii) ‘affects’ the operation of the Victorian Rule which insists on personal service (unless otherwise ordered).  Essentially s 28A (1) is a fall back provision where there is no prescribed method in Commonwealth or State legislation.”

9 In this Court, the application for a restraining order brought by the applicant is subject to Order 10 of the County Court Miscellaneous Rules 2009 (“the CC Rules”).Order 10.04(3), like Rule 6.04(3) of the Supreme Court (Criminal Procedure) Rules 2008 (Vic), “insists” that the kind of application before me be served personally “or in such manner as the Court directs”. In my opinion, it would have been possible for the applicant to apply to a judge of this Court for an order directing that the application and supporting materials in each case be served by prepaid post. But self-evidently, such application would necessarily have to be made before actual service. Unfortunately this was not done here.

10 Order 10 of the CC Rules is part of the law of this State. In my view, I am bound to follow the ruling of Justice J Forrest, the effect of which, when applied to the facts of this case, means that Order 10 of the CC Rules has not been complied with and the respondents have not been served with the application.

11      In those circumstances I decline to make the orders sought.  I will adjourn the further hearing of the applications until Tuesday, 12 July 2016 and direct that the respondents be served personally at Fulham Correctional Centre with a copy of the Application and the affidavit in support and a copy of the exhibits, together with a copy of this order.

12      Ms Duran submitted that the cost of compliance with the Rule was high, given the location of Fulham Correctional Centre.  In my opinion, the doubtless high cost of compliance with the rule is not a proper basis for directing that application of the rule be waived.  Waiver of the proper application of the rule should not be decided by the cost of compliance.  The issue is what is the surest way of bringing the application to the attention of the respondents.

13      I will hear the applicant on any further orders that may be required.

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