Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dickson v Commissioner of the Australian Federal Police [2023] NSWCA 10 Hearing dates: 1 February 2023 Date of orders: 14 February 2023 Decision date: 14 February 2023 Before: Macfarlan JA; Brereton JA Decision: Dismiss the application for leave to appeal, with costs. Catchwords: CIVIL PROCEDURE — whether requirements for pecuniary penalty order application satisfied — whether an originating process may constitute an application and written notice by a proceeds of crime authority for a pecuniary penalty order under ss 134 and 136 of the Proceeds of Crime Act 2002 (Cth) CIVIL PROCEDURE — challenge to constitutional validity of pecuniary penalty order regime — whether Court permitted to value taxation benefits resulting from commission of offences in order to determine amount of pecuniary penalty under s 121 of the Proceeds of Crime Act 2002 Legislation Cited: Criminal Code Act 1995 (Cth), ss 135.4(5), 11.5(1) and 400.3(1) Proceeds of Crime Act 2002 (Cth), ss 121, 134, 136 Cases Cited: Pratten v Commonwealth of Australia [2017] HCATrans 124 Saffron v Commissioner of Taxation (1991) 30 FCR 578 Category: Procedural rulings Parties: Anthony James Dickson (Applicant) Commissioner of the Australian Federal Police (Respondent) Representation: Counsel: Applicant (Self-represented) J C Conde / A L Reid (Respondent) Solicitors: Australian Federal Police, Criminal Assets Litigation (Respondent) File Number(s): 2022/211206 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2022] NSWSC 799 Date of Decision: 17 June 2022 Before: Ierace J File Number(s): 2012/108692 [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.] Judgment 1. THE COURT: This is an application by Mr Dickson for leave to appeal from a decision of Ierace J of 17 June 2022 ([2022] NSWSC 799) whereby his Honour: 1. dismissed a notice of motion filed by Mr Dickson seeking a stay or dismissal of a paragraph (paragraph [29]) of a second further amended summons filed by the respondent Commissioner on 23 June 2014 seeking a pecuniary penalty order ("PPO") under the Proceeds of Crime Act 2002 (Cth) (the "POC Act"); and 2. dismissed a cross summons filed by Mr Dickson by which Mr Dickson sought to challenge the constitutional validity of the provisions of the POC Act upon which the Commissioner relied. 1. On 22 December 2014 Mr Dickson was convicted of offences contrary to ss 135.4(5), 11.5(1) and 400.3(1) of the Schedule to the Criminal Code Act 1995 (Cth) of conspiring with another person to dishonestly cause a loss or risk of loss to the Commonwealth and conspiring to deal with property of a value of $1,000,000 or more, believing it to be the proceeds of crime. Challenges to the convictions were not finally resolved until 12 June 2019. Mr Dickson was unsuccessful. The proceedings seeking a pecuniary penalty, which had been commenced in 2012, were held in abeyance until the criminal proceedings were concluded. Orders under the POC Act for the forfeiture of property were however made earlier. 2. Relevantly for present purposes, s 134 of the POC Act provides that a proceeds of crime authority, which includes the respondent Commissioner, "may apply for a pecuniary penalty order" within a specified time. Section 136 is in the following terms: "136 Notice of application (1) The *responsible authority must give written notice of the application to a person who would be subject to the *pecuniary penalty order if it were made. (2) The *responsible authority must include a copy of the application with the notice. (3) The *responsible authority must give a copy of any affidavit supporting the application to a person who would be subject to the *pecuniary penalty order (if it were made) within a reasonable time before the hearing of the application." 1. Section 121 of the POC Act provides that in respect of a "serious offence" (which concept includes those of which Mr Dickson was convicted) the penalty amount is relevantly to be determined by valuing the benefits the person received from the commission of the offences, subject to deduction of identified amounts. 2. The first ground of Mr Dickson's proposed appeal to this Court involves a challenge to the primary judge's finding that the Commissioner's original summons constituted an application by the Commissioner under s 134 of the POC Act for a pecuniary penalty order and also constituted a "written notice of the application" for the purposes of s 136. 3. His Honour's conclusions at [51], as follows, were in our opinion clearly correct, with the result that leave to challenge them should not be given: "There is no apparent impediment to a document commencing legal proceedings, in this case a summons, being the vehicle of the application and, by its service upon the first defendant, also being notice of that application for the purposes of s 136 of the [POC] Act. Although s 136(2) refers to a "a copy of the application" accompanying the notice, I do not accept that it prohibits the application consisting of orders sought in a summons or notice of motion that is duly served on a defendant." 1. Mr Dickson's second proposed appeal ground assumes, incorrectly, that the primary judge granted leave to the Commissioner to make an application for a pecuniary penalty order out of time. As his Honour found that the application was in fact made within time (by means of the filing of the summons), it was unnecessary for him to reach a conclusion on this question and he did not do so. This proposed appeal ground is not therefore a basis upon which leave to appeal should be granted. 2. Mr Dickson's third proposed appeal ground involves the proposition, rejected by the primary judge, that the provisions of the POC Act upon which the Commissioner relies are constitutionally invalid because to implement them would require the Court hearing the application for a PPO in a case such as the present to determine the amount of income tax avoided as a result of offences of which Mr Dixon was convicted. Mr Dixon argues that such a determination "can only be made by the Federal Commissioner of Taxation ("FCT"), pursuant to the federal income tax legislation". 3. In our view there is no merit in this argument. For the purposes of determining the amount of a pecuniary penalty to be imposed in such a case the Court would, by reason of the terms of s 121 of the POC Act (see [4] above), be required to value the benefits he received from the commission of the offences. In circumstances where the tax evaded was payable not by him personally but by a company of which he was a director, that benefit is not necessarily equivalent to the unpaid tax liability. But assuming that the process would involve an estimation of the amount of the tax avoided, Mr Dickson has not been able to point to any legislative or other prohibition on the Court doing that. A similar exercise is undertaken, for example, when a court assesses damages to be awarded against professionals. If a solicitor or accountant negligently fails to advise a client about the client's ability to claim a particular tax deduction, there is no reason why the Court should not, for the purposes of assessing damages, estimate the tax that would have been saved if the negligence had not occurred. 4. An argument to similar effect was raised before, and rejected by, Gageler J of the High Court in Pratten v Commonwealth of Australia [2017] HCATrans 124. Gageler J's conclusions at lines 107–129, which we respectfully adopt, were as follows: "Whatever way the constitutional argument might possibly be formulated, I cannot consider it viable. For the purpose of determining his criminal liability, the question of whether Mr Pratten obtained a financial advantage through a reduction in his liability to pay income tax consequent on his failure to disclose assessable income was a question of fact. No doubt, it might have been sought to have been proved in a number of ways. But, as a question of fact, it was properly a question for the jury. What the jury plainly could not do was determine Mr Pratten's civil liability to pay income tax. But the jury was distinctly not asked to do that. The verdicts of the jury cannot bind the Tribunal in the conduct of the Pt IVC proceedings. Nor could it be suggested that the continuation of those proceedings by Mr Pratten would be an abuse of process in light of his convictions: see Saffron v Commissioner of Taxation (1991) 30 FCR 578. There is, as Mr Pratten points out, the theoretical potential for the continuation of his proceedings under Pt IVC to produce a result which is inconsistent with the implicit finding of the jury that he obtained a reduction in his liability to pay income tax consequent on his failure to disclose assessable income in each of the relevant years of income. But inconsistency between outcomes on similar issues in different proceedings cannot alone be indicative of a constitutional difficulty." 1. Gageler J found, as we do, that the argument was so lacking in merit that it could not preclude summary dismissal of the relevant proceeding. 2. Mr Dickson's fourth proposed appeal ground contains a number of sub-grounds. None of them raises a point that is arguably supportive of his application. It is unnecessary therefore to address them in any detail. We simply note, contrary to propositions forming part of those sub-grounds, that Mr Dickson did not demonstrate before this Court that the primary judge overlooked any material submissions or evidence of Mr Dixon, did not understand Mr Dixon's "cardinal argument", failed to refer to any High Court decision that ought to have been referred to or otherwise erred in making his dismissal orders. 3. For these reasons the Court dismisses Mr Dickson's application for leave to appeal, with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2023