Cook v NSW Crime Commission [2004] NSWSC 295

New South Wales Supreme Court

CITATION : Cook v NSW Crime Commission [2004] NSWSC 295 HEARING DATE(S) : 10/12/2003 JUDGMENT DATE : 15 April 2004

JUDGMENT OF : Hidden J at 1 DECISION : Application to set aside orders made in the absence of the applicant granted.

CATCHWORDS : PRACTICE AND PROCEDURE: Application to set aside confiscation orders - orders made in absence of applicant and his solicitor - applicant in custody - Judge unaware that applicant had changed solicitors. LEGISLATION CITED : Criminal Assets Recovery Act 1990 Supreme Court Rules - Pt 40 r9 CASES CITED : Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 676-7 NSW Crime Commission v Ibrahim and Anor [2002] NSWSC 791 PARTIES : Alistair Robert Cook - applicant New South Wales Crime Commission - respondent FILE NUMBER(S) : SC 11041/00 COUNSEL : Mr GD Wendler - Applicant Mr I Temby QC - Respondent SOLICITORS : John Weller & Associaties - Applicant Mr John M Giorguitti - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

Thursday, 15 April, 2004

11041/00 – Alistair Robert COOK v NEW SOUTH WALES CRIME COMMISSION

JUDGMENT 1 HIS HONOUR: On 15 May 2001 the respondent, the New South Wales Crime Commission, obtained against the applicant, Alistair Robert Cook, an assets forfeiture order, pursuant to s22 of the Criminal Assets Recovery Act 1990, and a proceeds assessment order, pursuant to s27 of the Act. The orders were made by Sully J at a hearing at which the applicant did not appear and no legal practitioner appeared for him. The applicant now seeks, pursuant to Pt 40 r 9 of the Supreme Court Rules, that those orders be set aside. It is necessary to set out the history of the proceedings. 2 The applicant was charged with certain drug offences, and on 4 May 2000 an order was made, pursuant to s10 of the Act, restraining all his interests in property. An amended summons of the same date sought the forfeiture and proceeds assessment orders. That summons, together with notice of the restraining order, was served upon him in custody on 22 May 2000. 3 The applicant instructed Mr John Weller, solicitor, to act for him in the criminal proceedings and in the proceedings the subject of this application, to which it is convenient to refer as the confiscation proceedings. The respondent became aware of Mr Weller's involvement in June 2000 and he filed a notice of appearance in the confiscation proceedings on 24 August that year. 4 On 9 April 2001 Kirby J ordered that the summons be listed in the applications list of 7 May 2001 and that the respondent notify the applicant accordingly. On 18 April the respondent faxed a notice in accordance with that order to Mr Weller. 5 On 7 May 2001 the summons was listed before Sully J. There was no appearance by or on behalf of the applicant, and his Honour stood the matter over before himself on 15 May. On 9 May the respondent faxed a notification of that date to Mr Weller. 6 In the meantime, in April 2001, the applicant had withdrawn instructions from Mr Weller and engaged Mr Leon Goldberg, solicitor. The reasons for this, which are entirely legitimate, need not concern us. However, the first the respondent knew of this development was when it received a fax to that effect from Mr Weller in the mid-afternoon of 14 May, the day before the summons was listed for hearing. Within a half-hour of receiving that fax the respondent sent a fax to Mr Goldberg, informing him of the hearing the following day. In the event, a notice of ceasing to act by Mr Weller was not filed until 24 May and Mr Goldberg has never filed a notice of appearance. 7 On 15 May, as I have said, there was again no appearance by or on behalf of the applicant. Nor had any affidavit evidence been filed on his behalf. He was still in custody at that time. On that occasion senior counsel for the respondent relied upon affidavit evidence that Mr Weller had been notified of the hearing date by the steps which I have described. The transcript discloses that senior counsel then said: "… I can inform your Honour that there has been a subsequent telephone conversation with that solicitor, who spoke in terms of taking steps to get off the record. Nonetheless, our position is, he was on the record, he was given notice, and that orders can accordingly be made." 8 Sully J made the assets forfeiture order, the subject of that order being a home unit in Queensland where the applicant had been living with his de-facto wife and children, together with the proceeds assessment order in an amount to be assessed. On 21 May the respondent forwarded a sealed copy of those orders to Mr Weller, as he was still then on the record. On his own evidence, the applicant became aware of the orders no later than early July 2001, when they were discussed during a conference with Mr Goldberg. 9 On that occasion Mr Goldberg proposed making an application for an exclusion order, pursuant to s 25(1) of the Criminal Assets Recovery Act. Subsequently Mr Goldberg referred the applicant to other solicitors for that purpose, and on 19 November 2001 such an application was filed. However, that application was subject to the six month time limit imposed by s 25(4) of the Act, which had expired a few days earlier. It is not necessary to explain how the application came to be filed out of time, but I should say immediately that no fault on the part of the solicitors who filed it has been suggested. Ultimately, on 12 December 2001 the applicant consented to an order that that application be dismissed, with each party to pay his or its own costs. 10 The applicant now asks me to set aside the orders of Sully J of 15 May 2001, relying upon the power of the Court under Pt 40 r9(3)(a) to set aside an order made in the absence of a party. The application was initiated by a notice of motion filed on 28 April 2003, but is now pursued by an amended notice of motion of 10 December 2003. The relevant subrule confers a wide discretion on the Court, which can set aside an order made in the absence of a party "whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of motion for the order …" It is necessary to examine the circumstances in which the orders were made in the absence of the applicant and his efforts since then to remedy the situation. 11 I have no evidence from Mr Goldberg, but both the applicant and Mr Weller swore affidavits and gave oral evidence. Put shortly, the effect of their evidence is that the applicant told Mr Weller early in May 2001 that he had engaged Mr Goldberg, whereupon Mr Weller forwarded his papers relating to the matter to Mr Goldberg. When he received the respondent's notification that the confiscation proceedings were for hearing on 15 May, Mr Weller forwarded that notification on to Mr Goldberg. He tried to contact Mr Goldberg by phone on several occasions, but his calls were not returned. From time to time he had telephone contact with the applicant in prison but, unfortunately, he did not tell him about the hearing date of 15 May or, indeed, about the earlier listing on 7 May. The applicant was not made aware of either of those dates from any other source and, like Mr Weller, he understood that Mr Goldberg was handling both the criminal proceedings and the confiscation proceedings. 12 In those circumstances, no fault can be attributed to the applicant personally for the orders having been made in his absence. Equally, it is entirely understandable that he accepted Mr Goldberg's advice in July 2001 that the solution to the problem lay in an exclusion application, and it is no fault of the applicant that that application was lodged out of time. Later in July he was put on trial in respect of the drug charges, was acquitted and was released. Thereafter he had communication from time to time with Mr Goldberg, whom he understood to be looking after his interests in the confiscation proceedings. After his release, at the time the exclusion application was dismissed and thereafter, he was having financial and marital difficulties and was generally depressed. It was in these circumstances that he took no further action about the confiscation proceedings until early in 2003, when he re-engaged Mr Weller and the present application was put in train. 13 In the respondent's favour, it must be said that its steps to notify the applicant of the hearing date of 15 May 2001 through communication with Mr Weller, then the solicitor on the record, and Mr Goldberg were unexceptionable. Further, rather than making an application such as the present promptly after he became aware of the orders made in his absence, the applicant made an exclusion application which, in the event, was out of time. There was then a substantial delay before he took any further action to protect his interests. 14 On the other hand, as I have said, the applicant bears no personal responsibility for the fact that the orders were made in his absence, that a timely application to set those orders aside was not made, and that the exclusion application was made out of time. It is neither necessary nor desirable to ascribe blame for those unfortunate developments. The delay between the termination of the exclusion application and the pursuit of the present application is reasonably explained by his personal circumstances. From one of his affidavits it appears that there may have been an arguable basis to contest the orders made by Sully J. The respondent has not suggested that it would suffer any irremediable prejudice if the orders were now set aside and the issue were litigated. For those reasons alone I would have been minded to grant this application. However, there is another aspect of the case which, in my view, puts the matter beyond doubt. 15 As set out in para 7 of these reasons, senior counsel for the respondent before Sully J disclosed that Mr Weller, although still the solicitor on the record, had spoken "in terms of taking steps to get off the record." What he did not tell his Honour was that the respondent had information that the applicant had engaged Mr Goldberg. His Honour might reasonably have inferred from what he was told that the applicant, in custody awaiting trial upon drug charges, had parted company with his solicitor because he had no interest in the outcome of the confiscation proceedings. His Honour might not have been prepared to make the orders at that time if he knew that the applicant had engaged a new solicitor. 16 There is some parallel between this application and that dealt with by Sperling J in NSW Crime Commission v Ibrahim and Anor [2002] NSWSC 791. Sperling J set aside assets forfeiture orders made in the absence of the applicants in the light of evidence that the Judge who made the orders was not told about a conversation between the applicants' solicitor and an officer of the respondent that very morning in which the solicitor said that he was unaware of the hearing date, was engaged elsewhere, and did not wish the matter to proceed in his absence. At [55] his Honour referred to the obligation of a party making an ex parte application "to inform the Court of any material consideration not otherwise apparent," and the need "to meet a high standard of candour and responsibility in bringing all material matters to the notice of the tribunal, including matters which the absent party would rely upon if present," citing Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662, per Mahoney AP at 676-7. 17 His Honour made it clear that he found no impropriety on the part of senior counsel who appeared for the respondent when the orders were made, or those instructing him, there being nothing to suggest they were aware of the conversation at that time. Similarly, I would not suggest any impropriety on the part of senior counsel who appeared for the respondent before Sully J, and who also appeared before me, or his instructing solicitor. Understandably, at the time I heard the application neither of them had any independent recollection of what occurred before Sully J or of what was known to them at that time. I have no doubt that senior counsel would have informed his Honour that Mr Goldberg had been engaged as the applicant's solicitor if he had been aware of it. The fact remains that Sully J made the orders in ignorance of that information, which was clearly material. 18 Accordingly, I would grant the application and set the orders aside. I shall consult the parties about any consequential orders which should be made and, if necessary, hear argument on costs. **********