Visser v New South Wales Crime Commission

[2013] NSWCA 467

Court of Appeal

New South Wales

Case Title:

Visser v New South Wales Crime Commission

Medium Neutral Citation:

[2013] NSWCA 467

Hearing Date(s):

19 December 2013

Decision Date:

19 December 2013

Before:

Basten JA;
Meagher JA

Decision:

(1) Order that the third applicant be removed from the proceedings as an applicant and be joined as the second respondent.

(2) Dismiss the application for leave to appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CONTRACT - judgment entered by consent in proceedings under Criminal Assets Recovery Act 1990 (NSW) - motion under Contracts Review Act 1980 (NSW) to set aside consent orders

PROCEDURE - civil - application for leave to appeal - adjournment sought to obtain legal aid - legal aid refused for trial - unlikely prospect of grant of legal aid - application for legal aid belated

PROCEDURE - civil - application for leave to appeal - parties - tutor required for applicant under 18 years of age - conflict between interests of proposed tutor and child applicant - child applicant to obtain no benefit from success of application - child applicant removed as applicant and joined as respondent

Legislation Cited:

Supreme Court Act 1970 (NSW), s 75A

Category:

Principal judgment

Parties:

John Visser (First applicant)
Donna-Marie Lewis (Second applicant)
New South Wales Crime Commission (First Respondent)
Sharnielle Visser-Lewis (Second Respondent)

Representation

- Counsel:

Counsel:

Applicants self-represented
I D Temby QC (First Respondent)

- Solicitors:

Solicitors:

Applicants self-represented
NSW Crime Commission (First Respondent)

File Number(s):

CA 2013/222356

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Hidden J

- Date of Decision: 

21 August 2012

- Citation:

[2012] NSWSC 1100

- Court File Number(s):

SC 2007/264616

JUDGMENT

1. THE COURT: On 7 December 2007 the New South Wales Crime Commission ("the Commission") commenced proceedings against the owners of certain property, identified as "serious crime related property", pursuant to the Criminal Assets Recovery Act 1990 (NSW). The property included two boats in the name of John Visser and land at Heathcote, south of Sydney, in the names of John Michaels, Donna-Marie Lewis, Andrew Richardson and Sharnielle Visser-Lewis as joint tenants. "John Michaels" and "Andrew Richardson" were aliases used by John Visser. On 28 May 2008 the proceedings were resolved by the entry of consent orders signed by Mr Visser's solicitor (Michael Croke) on his behalf and by Ms Lewis on behalf of herself and Sharnielle Visser-Lewis, her daughter. The solicitor witnessed the signatures of Ms Lewis.

2. On 15 January 2009, Mr Visser filed a motion seeking to set aside the consent orders. In its amended form, the motion sought relief under the Contracts Review Act 1980 (NSW). The matter was heard by Hidden J in the Common Law Division who dismissed the motion in a judgment delivered on 21 August 2012: NSW Crime Commission v John Visser [2012] NSWSC 1100. The application before this Court seeks leave to appeal from that judgment.

3. The application was filed on behalf of Mr Visser, Ms Lewis and Ms Visser-Lewis. It was substantially out of time, but the Commission does not oppose an extension of time on the grounds of the delay. The Commission did however submit that the application for leave to appeal was without merit and should be dismissed.

4. The applicants both sought an adjournment based on a statement by Ms Lewis that she had an appointment to see legal aid next Monday. The application was opposed. There was no basis to expect aid to be granted in such a matter - indeed Mr Visser said legal aid was not available to him before the trial judge. The application is far too late. The application for an adjournment is refused.

5. By the terms of the consent order, the third defendant, Ms Visser-Lewis, released the State and the Commission from any claim for damages and the restraining order over her interests in the Heathcote property was removed. The order made by the trial judge did not adversely affect her, because the consent orders were, in substance, favourable to her interests. To the extent that she purported to seek leave to appeal, her application should be dismissed. As directed by the Court on 5 August 2013, she should have been removed as an applicant and joined as a respondent in the proceedings. That did not happen, but the Court should now make that order.

6. The consent orders imposed joint and several liability on Mr Visser and Ms Lewis for payment out of the restrained property of amounts of $17,500 to Mr Visser's solicitor, Mr Croke; payment of the Commission's costs in an amount of $50,000 and payment of a proceeds assessment order in the sum of $265,500.

7. The bases of the application before the trial judge were threefold:

   (a) payment of $120,000 had been made by Mr Visser to Mr Mark Standen, then a senior officer with the Commission, purportedly to remove the caveat over the Heathcote property;
   (b) the execution of the consent order by Mr Croke on behalf of Mr Visser had been without authority, and
   (c) Ms Lewis had signed the consent order under duress, without understanding the import of the document.

   (a) Payment to Standen

8. The trial judge was not satisfied, solely on the basis of Mr Visser's evidence, that a payment of $120,000 was made, as he claimed: at [12]. He noted that there had been no reference to that issue when the application to set aside the consent orders was filed in January 2009. Mr Visser first raised the matter of payment to Mr Standen in an interview with Commission officers on 15 April 2009. According to Mr Visser the payment had been made in April 2008, through the agency of one James Kinch, when Mr Visser was in the Netherlands. At the hearing of the motion, Mr Visser had arranged for Mr Standen (by then in custody) to attend to give evidence. However, he was not called. The trial judge, who heard evidence from Mr Visser, concluded that the payment would clearly have been corrupt and that Mr Visser "could not have believed otherwise": at [13]. He concluded that such a payment, even if made, could not found a claim for relief under the Contracts Review Act. There is no reason to doubt that proposition.

9. The primary ground noted in the draft notice of appeal filed for the applicants is that "fresh and new evidence has become available after the 10 December 2012 hearing date", intended no doubt to be a reference to the hearing in December 2010. The fresh evidence relied upon with respect to the first issue, according to submissions filed two weeks before the hearing of the application in this Court, was apparently the availability of Mr Kinch to give evidence (he having been in custody in Thailand in December 2010). The applicant informed the Court that Mr Kinch was extradited to New South Wales in November 2012, over a year ago. No affidavit has been provided from Mr Kinch and it remains a matter of speculation as to what evidence he would give. However, supposing that he confirmed that Mr Visser had paid him $120,000, which he had forwarded to Mr Standen or an associate of Mr Standen, that would provide no support for the challenge to the consent orders.

10. The second matter relied upon before the trial judge was that Mr Visser had not authorised the solicitor, Mr Croke, to sign the consent order on his behalf. At trial, Mr Visser asserted that in signing the consent order, Mr Croke acted as the result of a "misunderstanding". The trial judge noted that the evidence "did not identify with any clarity what that misunderstanding was said to be": at [14]. The submissions in this Court take the matter no further.

11. As demonstrated by an exhibit before the trial judge, whilst the applicant was in custody in New South Wales Mr Croke had visited the applicant on 17 and 24 May 2008 (before the consent orders were signed), on two occasions on 26 May 2008 (before the consent orders were filed) and on a further six occasions before the end of August 2008. There were visits thereafter until mid-October 2009. The motion challenging the consent orders (and implicitly the agreement on which they were based) was filed in January 2009. 0n 21 April 2009, as noted by the trial judge, "Mr Croke wrote to the Commission to convey his instructions that the application was no longer to proceed, but that a variation was sought to pars 16 and 17 of the consent order, providing for deferral of payment of the proceeds assessment order and of the accrual of interest". Although Mr Visser denied giving such instructions, the trial judge was satisfied that Mr Visser "was aware of the import of the consent order before it was executed and that he did instruct Mr Croke to sign it on his behalf": at [19]. He regarded the suggestion that Mr Croke "took it upon himself to negotiate the consent order and sign it without instructions" as "absurd".

12. Needless to say, Mr Visser's case in this regard was significantly weakened by the failure to call Mr Croke. According to the written submissions filed in this Court:

    "Mr Croke solicitor was not called as John Visser had not spoken to him since October 2009 as he had a falling out with him over this matter at hand and the hearing was not till December 2010 during the hearing certain evidence came out in relation to Croke."

13. There was no elucidation of the nature of the falling out and no affidavit or draft of any evidence that Mr Croke might provide if called. He could have been called at the trial, but was not. The challenge is therefore not supported, as claimed, by any further evidence.

14. No arguable case having been identified suggesting error on the part of the trial judge, it is not necessary to consider the conditions required for the tender of "further evidence" on appeal, pursuant to s 75A(8) of the Supreme Court Act 1970 (NSW). Suffice it to say, Mr Visser confronted formidable hurdles in this regard which were not addressed.

15. With respect to Ms Lewis, the case run before the trial judge was that she had been subject to duress and had failed to understand the import of the document she was signing, both on her own behalf and on behalf of her daughter. That she had suffered from health problems in May 2008 was not in doubt. However, the trial judge noted that, although she gave evidence, she gave none demonstrating that the Commission had applied pressure to her to sign the order: at [22]. There was contemporary documentary evidence which suggested the contrary, including a letter dated 14 May 2008 to an officer of the Commission expressing appreciation for the officer's kindness with respect to the contract, discussed over the telephone and asking, apologetically, for details of the $50,000 amount specified for the costs of the Commission. The letter also said "I realised I have to pay bills for my children's father and [legal] fees for myself". The letter demonstrated a clear understanding of the content of the document containing the consent orders. The trial judge noted that when cross-examined about the letter she said she was "very sorry for writing it because it's a big lie". He noted that the assertion of untruth "remained unexplained": at [26]. The trial judge was satisfied that she did not act under duress from the Commission.

16. The written submissions in this Court sought to reagitate the merits of the order sought against Ms Lewis' interest in the property but produced no further evidence. Ms Lewis appeared before this Court on the hearing of the application for leave to appeal, but did not raise any new basis for challenging the judgment below. There is no ground raised upon which an arguable case could be mounted to challenge the finding of the trial judge.

17. The applications must be dismissed. To the extent that the daughter had a separate interest in the proceedings, she should not be penalised for the course taken on her behalf by her mother as tutor. In any event, the Commission did not seek costs. The Court makes no order as to costs.

18. The Court makes the following orders:

    (1) Order that the third applicant be removed from the proceedings as an applicant and be joined as the second respondent.

    (2) Dismiss the application for leave to appeal.

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