Bujak v Solicitor-General - [2009] NZSC 42

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IN THE SUPREME COURT OF NEW ZEALAND
SC 64/2008
[2009] NZSC 42
BETWEENSLAWOMIR BUJAK

Appellant

ANDTHE SOLICITOR-GENERAL

Respondent

Hearing:31 March 2009

Court:Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ
Counsel:E Orlov and F Deliu for Appellant

M S R Palmer and M F Laracy for Respondent

Judgment:15 May 2009

JUDGMENT OF THE COURT

A.THE APPEAL IS DISMISSED.
B.THE APPELLANT IS ORDERED TO PAY TO THE RESPONDENT COSTS
OF $15,000 AND REASONABLE DISBURSEMENTS.

REASONS
(Given by Wilson J)
Introduction
[1]       The appellant challenges the registration under the provisions of the Mutual Assistance in Criminal Matters Act 1992 of a Polish Court order restraining him from dealing with assets in this country, pending the determination of proceedings against him in Poland.
[2]       Registration of the order is challenged on the grounds that –
·     the Polish authorities had not established that the assets represented benefits to the appellant of, or were tainted by, his alleged offending;
·     the order was for the forfeiture of, rather than restraint in dealing with, the appellant’s assets;
·     in the judgment now under appeal the Court of Appeal had departed from some of its own findings in an earlier judgment, in breach of the principles of res judicata and issue estoppel;
·     a Polish prosecutor had provided evidence about the proceedings against the appellant and the Polish legal system, but was not an independent witness.

Before considering these arguments, we will summarise the history of this litigation and examine the statutory scheme.
Litigation history
[3]       The Polish authorities have brought numerous charges against Mr Bujak alleging the misappropriation of funds, vehicles and other property. Pursuant to the Polish Code of Penal Procedure 1997,[1] an order freezing the property of Mr Bujak was proposed by the prosecution and confirmed by a Regional Court in Poland.
[1]      Articles 291 – 295.
[4]       Poland requested the Attorney-General of New Zealand to register the Polish Order against Mr Bujak’s assets believed to be in New Zealand. The Attorney-General instructed the Solicitor-General to take the necessary steps to register the Polish Order as a foreign restraining order under the Act.[2] After an ex parte hearing before Clifford J in the High Court at Wellington, the Court made an order registering the Polish Order. It gave no reasons for doing so.
[2] Mutual Assistance in Criminal Matters Act, s 2.
[5]       Mr Bujak appealed to the Court of Appeal.[3] The Court remitted the proceeding to the High Court because it considered that “it was important to ensure that the respondent could come into court and challenge the making of the order.”[4] Further, the Court expressed a preliminary opinion that Mr Bujak was “entirely correct”[5] in his submission that the Polish Order does not “on its face”[6] fall within the statutory definition of foreign restraining order in s 2(1) of the Act.
[3]R v Bujak [2007] NZCA 347 (CA 185/07, 15 August 2007) (William Young P, Hammond and Robertson…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bujak v Solicitor-General

Details

AGLC: Bujak v Solicitor-General [2009] NZSC 42
Case: [2009] NZSC 42
Decision Date: 15 May 2009

CaseChat Overview and Summary

The Supreme Court of New Zealand was asked to determine whether a Polish court order, which restricted the appellant, Mr. Slawomir Bujak, from dealing with his assets in New Zealand, could be registered under the Mutual Assistance in Criminal Matters Act 1992. Mr. Bujak challenged the registration of the Polish order on several grounds, including that it did not restrain his property but instead seized it, and that it was not in accordance with the principles of res judicata and issue estoppel. The Court of Appeal had previously allowed the registration of the order, and Mr. Bujak appealed to the Supreme Court.

The court examined the statutory scheme, noting the definitions of foreign forfeiture orders, foreign pecuniary penalty orders, and foreign restraining orders. It considered the distinctions between tainted property and benefits derived from alleged offending and whether the Polish order was intended to seize or restrain the appellant's property. The court also reviewed the role of the Polish prosecutor's evidence and the principles of res judicata and issue estoppel.

The Supreme Court found that the Polish order was intended to restrain the appellant's property rather than seize it, and that the prosecutor's evidence was credible and supported the registration of the order. The court held that the Court of Appeal's earlier comments did not prevent it from reaching a different conclusion. Therefore, the appeal was dismissed, and Mr. Bujak was ordered to pay costs of $15,000 and reasonable disbursements to the respondent.

This case highlights the importance of examining the substance of a foreign order, rather than specific words, in determining whether it qualifies as a foreign restraining order under the Mutual Assistance in Criminal Matters Act 1992. The court's decision also demonstrates the role of expert evidence in establishing the nature and scope of foreign proceedings, as well as the need for consistency in the application of legal principles.

Orders