New South Wales Supreme Court CITATION : New South Wales Crime Commission v Ibrahim & anor. [2002] NSWSC 105 CURRENT JURISDICTION: Supreme Court of New South Wales FILE NUMBER(S) : SC 10830/98 HEARING DATE(S) : 11 February 2002 JUDGMENT DATE : 11 February 2002 New South Wales Crime Commission PARTIES : Romeo Shaul Ibrahim Maria Marguerite Ibrahim JUDGMENT OF : Sully J at 1 COUNSEL : I. Temby QC - Plaintiff G. Wendler - Defendant SOLICITORS : S. E. O'Connor - Plaintiff John D. Weller & Assoc. - Defendant LEGISLATION CITED : Criminal Assets Recovery Act DECISION : In accordance with short minutes - see page 5 of judgment IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SULLY J Tuesday 11 February 2002 10830/98 – NEW SOUTH WALES CRIME COMMISSION v ROMEO SHAUL IBRAHIM & ANOR. JUDGMENT 1 HIS HONOUR: An application is made for the adjournment of the notice of motion filed 14 November 2001, as to which notice of motion I shall have presently some more to say. The application for the adjournment is refused for reasons upon which, also, I will touch in what follows. 2 Current in the Court are proceedings No 010830/98. The plaintiff is the New South Wales Crime Commission and there are two defendants, Mr Romeo Shaul Ibrahim and Mrs Maria Marguerite Ibrahim, his wife. 3 The proceedings have been brought, speaking for the moment simply and broadly, pursuant to various of the provisions of the Criminal Assets Recovery Act ("the Act"). 4 Within those proceedings Mr and Mrs Ibrahim have filed a notice of motion seeking relevantly the following relief: "1. Pursuant to s 25(1)(b) of the Criminal Assets Recovery Act 1990 an order (exclusion order) excluding the interests of the applicants from the operation of the Assets Forfeiture Order in relation to the property identified in the schedule annexed to this notice of motion". 5 The assets forfeiture order, to which reference is made in the notice of motion, is an order that was made by Simpson J of this Court on 9 April 2001. The notice of motion thus filed has drawn from the New South Wales Crime Commission a notice of motion of its own. That notice of motion seeks relevantly the following relief: "1. That the Court determine the following question separately and prior to the hearing of the notice of motion filed by Mr and Mrs Ibrahim on 14 November 2001; whether the respondents have made their application for an exclusion order within six months after the assets forfeiture order took effect." 6 It is not controversial that the fate of both notices of motion turns essentially upon the construction of s 25(4) of the Act. That subsection provides as follows: "(4) After an assets forfeiture order has been made an application for an exclusion order may not be made by a person; (a) if the person was given notice of the proceedings that led to the relevant restraining order or assets forfeiture order – unless it is made within six months after the assets forfeiture order took effect and leave to apply has been granted by the Supreme Court or (b) in any other case – unless it is made within six months after the assets forfeiture order took effect or the Supreme Court has granted leave to apply after that time." 7 It is not controversial that on 8 April 1998 both Mr and Mrs Ibrahim were served with a number of documents in connection with the proceedings current in the Court. One of those documents was an amended summons. It was filed pursuant to leave granted by Dowd J of this Court on 1 April 1998. It is not controversial that paragraph 4 of the amended summons in terms claims a forfeiture order. 8 The first question to be decided is whether service upon each of Mr and Mrs Ibrahim of that amended summons constituted in the sense contemplated by s 25(4)(a) of the Act "Notice of the proceedings that led to the relevant restraining order or assets forfeiture order." 9 It is submitted by the counsel for Mr and Mrs Ibrahim that the correct answer in law to that question is a negative answer. It is submitted, put simply, that the proceedings that led to the relevant restraining order or assets forfeiture order were the actual proceedings before Simpson J on 9 April 2001. It seems to me that as a matter of construction that submission is wrong in law. 10 I do not think that there is any room for serious disputation that the relevant proceedings for the purposes particular to the present case of s 25(4)(a) of the Act are the proceedings that were commenced by the relevant originating process, that is to say by the amended summons of which I have earlier spoken. 11 There is some controversy about what actually happened in connection with the hearing before Simpson J. There is affidavit evidence from Mr Stewart, who is the solicitor having effective carriage of the Crime Commission's present notice of motion, to the following effect: "I have been informed by Sue Jackson, a solicitor employed by the Commission, that on 9 April 2001 at 9.45 am she telephoned Weller. ... (Mr Weller was the solicitor then acting for Mr and Mrs Ibrahim) ... during that telephone conversation Weller advised Sue Jackson that his contact details had changed but the correspondence that had been sent to his previous contact details should have been forwarded to him. Weller informed Sue Jackson that he had not received the letter dated 14 March 2001. I am informed by Sue Jackson that she informed Weller that the matter had been listed for hearing at 10 am on 9 April 2001. I am also informed by Sue Jackson that at 9.50 am on 9 April 2001 she sent a copy of the letter dated 14 March 2001 via facsimile to Weller on the fax number 667 99155, being the fax number that Weller had informed Sue Jackson was his new office fax number." 12 Mr Weller has sworn an affidavit (the date of swearing of it not being entirely clear as matters stand), in which he, Mr Weller, comments as follows about the material which I have extracted from Mr Stewart's affidavit: ".... I received the phone call as referred to therein and in addition I requested that Sue Jackson advise the Court that I was about to enter another court in other proceedings, and as I had received no notice that the matter had been listed for hearing, could the matter be adjourned." 13 It is submitted that there is some fundamental unfairness about proceeding today to hear and to dispose of the notices of motion of which I have earlier spoken. It is submitted that unfairness has to do with a perceived wish, at least on the part of learned counsel now appearing for Mr and Mrs Ibrahim, that Mr Weller, and perhaps Mr Ibrahim, might have an opportunity of putting on some supplementary affidavit material explaining how it comes about that the exclusion order, for which application is now made, was not sought within the period of six months after the making of the assets forfeiture order on 9 April 2001. 14 I refused the application for an adjournment because it seems to me that once it is determined, as I have done as a matter of law, that paragraph (a) of s 25(4) of the Act is applicable; and once it is determined thereupon that in fact no application for an exclusion order was made within six months; and once it is clear, as in my opinion it is, that the relevant provisions of paragraph (a) as to notice have been complied with; then there is no purpose to be served by prolonging the present interlocutory application, so that additional evidence of the kind sketched out by learned counsel for Mr and Mrs Ibrahim in his submissions can be lodged with the Court. 15 The foregoing process of reasoning seems to me to result necessarily in the giving of a negative answer to the preliminary question postulated in the notice of motion filed by the Crime Commission. Once that position is reached, then the notice of motion of Mr and Mrs Ibrahim simply cannot succeed, for there is no way in which that claim for relief can be accommodated to the quite precise requirements of s 25(4)(a) of the Act. 16 The question posed in paragraph 1 of the notice of motion filed on 27 November 2001 by the New South Wales Crime Commission is answered "No". The notice of motion filed on 14 November 2001 by Mr and Mrs Ibrahim is dismissed with costs. (Mr Temby handed up handwritten minute of orders submitting to his Honour that it was consistent with what his Honour had just said and that his Honour might be satisfied that it was a document that he could sign and thus formalise the matter.) Do you wish to be heard on the form of those orders, Mr Wendler? (Mr Wendler indicated he had nothing to say.) 17 HIS HONOUR: In order to give effect in a more precise fashion to the orders which I have made, I make the formal orders in the manuscript minute which I have signed and which for the sake of convenience I set out hereunder. 18 The Court orders that: 1. The Court is to determine the following question, separately and prior to the hearing of the notice of motion, filed by the respondents on 14 November 2001: 'Whether the respondents have made their application for an exclusion order within six months after the assets forfeiture order took effect'. 2. The question be answered 'No'. 3. The notice of motion filed by the respondents on 14 November 2001 be dismissed. 4. The respondents pay the applicant's costs of the applicant's notice of motion, filed 27 November 2001, and the respondents' notice of motion, filed 14 November 2001. Those orders may be entered forthwith. ********** Last Modified: 02/28/2002 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.