The Commissioner of the Australian Federal Police v Zhang and Xing

[2015] NSWSC 61

Supreme Court

New South Wales

Medium Neutral Citation:	The Commissioner of the Australian Federal Police v Zhang & Xing [2015] NSWSC 61
Hearing dates:	9-11 February 2015
Date of orders:	11 February 2015
Decision date:	11 February 2015
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Second defendant to pay the plaintiff’s costs
Catchwords:	CRIMINAL LAW – Proceeds of crime – application to revoke restraining order or to exclude certain property from restraining order – applicant unrepresented – legal aid application pending – adjournments granted to allow applicant to pursue legal aid application CRIMINAL LAW – Costs – application for costs thrown away – where second defendant unprepared to proceed – application granted
Legislation Cited:	Proceeds of Crime Act 2002 (Cth)
Category:	Principal judgment
Parties:	The Commissioner of the Australian Federal Police (Plaintiff) Gulun Zhang (First defendant) Yuling Xing (Second defendant)
Representation:	Counsel: Mr D Tynan (Plaintiff) Second defendant (in person) Solicitors: Australian Federal Police
File Number(s):	2012/233065

Judgment

1. HIS HONOUR: These are proceedings under the Proceeds of Crime Act 2002 (Cth) (“the Act”). On 26 July 2012, the Commissioner of the Australian Federal Police obtained ex parte restraining orders under s 18 of the Act in relation to certain nominated property which includes what I understand to be the family home of Gulun Zhang and his wife, Yuling Xing. Mr Zhang was subsequently convicted of certain offences and is currently serving a sentence of imprisonment.

2. On 2 June 2014, Ms Xing applied by way of notice of motion for the Court to make various orders: in short, orders that would have the effect of revoking the restraining order or excluding the home from restraint. Ms Xing was represented by a solicitor at that time, but that solicitor filed a notice of it ceasing to act in December 2014. At that stage, the notice of motion had been listed for hearing over three days from Monday of this week, 9 February 2015.

3. Ms Xing appeared without representation before me on Monday. She indicated that she had applied for legal aid last week and that she was awaiting the outcome of that application. She explained that her delay in applying for legal aid was because she had another solicitor working for her in trying to reach a settlement of the matter. Settlement was not achieved.

4. Ms Xing applied for an adjournment of the hearing of her application. Mr Tynan of counsel opposed that application on behalf of his client, the plaintiff. I granted the application and stood the matter over to Tuesday with the hope that there would be news of the resolution of the application for legal aid.

5. Ms Xing again appeared without representation before me yesterday and, again, applied for an adjournment indicating that she had an appointment to see someone at Legal Aid today at 11.20am.

6. Ms Xing has again appeared before me this afternoon at 2.00pm and indicated that she had attended upon a solicitor at Legal Aid this morning. She informed me that this solicitor had discussed the case with her and had referred her to private solicitors in the city who would, she said, prepare a brief for a barrister. Although Ms Xing did not say this, I am assuming that counsel's advice is being sought as to, probably, the merits of her application that Legal Aid can take into account in determining whether or not to grant legal aid.

7. The upshot is that the application of Ms Xing has not been able to proceed over the three days allocated for it this week. Ms Xing again applies for an adjournment of the matter until the legal aid situation is resolved.

8. According to the submissions of Mr Tynan, which I have read, the critical matter is that there is apparently a deadline of 5 March when there will be automatic forfeiture of the property currently subject to restraint, according to the Act. As I understand it, that is not a date that can be extended. Ms Xing assured me that she had stressed the existence of this deadline a number of times to the Legal Aid solicitor she saw this morning. She also informed me that she will be proceeding immediately after I conclude the matter today to the office of the solicitor to whom the matter has been referred.

9. Mr Tynan opposed the proposal that I tentatively put to Ms Xing and had her agreement. That proposal was that I stand the matter out of the list, allowing liberty to restore if Ms Xing determines with the benefit of legal assistance to pursue her application.

10. As I indicated, the matter has been before the Court on each of the three days that I have referred to. On each occasion, the plaintiff has been represented by counsel and solicitor.

11. Mr Tynan informs me that he has been in the matter throughout. He is the author of very detail written submissions that are on the Court file which explain quite fully the plaintiff's attitude to the application. In short, it is contended that some of the orders sought by Ms Xing are statutorily impossible and some face significant evidentiary hurdles.

12. The difficulty for Mr Tynan is, and I sympathise with this, that in the event that an attempt is made to have the matter restored to the list and determined, his availability is limited to only next week (February 16 to 20) or Friday, 27 February, and nothing else before that deadline I mentioned of 5 March. It would be, indeed, very unfortunate and possibly disadvantageous to the plaintiff if the application was to be restored and pursued on an occasion when counsel who has been in the matter for so long is no longer available. That is a matter that I note and note for the future, if it be relevant, but it is not something that can affect what I do with the matter today.

13. Mr Tynan has instructions and has made an application for costs thrown away by the wasted three days that were supposed to be the hearing of Ms Xing's application. In response to that application, Ms Xing has drawn attention to her impecuniosity. I do have sympathy for her. It is a matter for the plaintiff whether any order I make is sought to be enforced. That is a matter in the plaintiff's hands, not mine. I think it is only just that the plaintiff should have the costs thrown away by this application being brought but not heard as scheduled.

14. I make the following orders.

1. The matter is stood out of the list.

2. The matter may be restored by either party on two days notice.

3. The second defendant is to pay the plaintiff's costs in respect of the three days set aside for the hearing of this application that did not, at the second defendant’s request, proceed.

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Decision last updated: 12 February 2015