NSW Crime Commission v John Visser & Ors [2012] NSWSC 1100

Supreme Court New South Wales

Medium Neutral Citation: NSW Crime Commission v John Visser & Ors [2012] NSWSC 1100 Hearing dates: 3 December 2010 & 10 December 2010 Decision date: 21 August 2012 Jurisdiction: Common Law Before: Hidden J Decision: Motion dismissed Catchwords: CRIMINAL ASSETS - consent order for proceeds assessment orders and related orders - motion by defendants to set aside order under Contracts Review Act - no question of principle Legislation Cited: Criminal Assets Recovery Act 1990 Civil Procedure Act 2005 Contracts Review Act 1980 Category: Principal judgment Parties: NSW Crime Commission (plaintiff/respondent) John Visser (1st defendant/applicant) Donna Maree Lewis (2nd defendant/applicant) Sharnielle Visser-Lewis (3rd defendant/applicant) Representation: I Temby QC (plaintiff/respondent) In person (defendants/applicants) Alexandra Bishop - John M Giogiutti (respondent) File Number(s): 2007/264616

Judgment 1His HONOUR: On 7 December 2007 the plaintiff, NSW Crime Commission, commenced proceedings under the Criminal Assets Recovery Act 1990 against the first defendant, John Visser. Also joined as defendants were his partner, Donna Maree Lewis, and their daughter, Sharnielle Visser-Lewis. On the same day the Commission obtained a restraining order under s 10 (as it then was) of the Act with respect to all of Mr Visser's interests in property, comprising two boats and the family home at Heathcote. The home was registered in the names of all three defendants, and the interests of his partner and daughter in that property were also subject to the order. The initiating summons also sought assets forfeiture orders under s 22 of the Act, and a proceeds assessment order under s 27. 2Mr Visser had been charged with drug offences, the particulars of which are not relevant for present purposes, on 3 April 2007. Three days later he escaped from custody, and he was at large at the time the restraining order was made. He left Australia but returned on 14 May 2008, when he was arrested. He has remained in custody since, and was sentenced to a substantial term of imprisonment for the drug offences on 19 March 2010. 3Prior to Mr Visser's return to Australia Mr Michael Croke, solicitor, was involved in negotiations with the Commission with a view to settling the proceedings. Sharnielle Visser-Lewis was still a minor, and Ms Lewis acted as her tutor. However, whether Mr Croke was retained for that purpose is an issue which I must decide. 4On 28 May 2008 Mr Croke entered appearances for the three defendants, and on the same day a consent order was filed. The order bears the signature of Mr Croke, purportedly on behalf of Mr Visser as his legal representative, and the signatures of Ms Lewis on her own behalf and as her daughter's tutor, those signatures being witnessed by Mr Croke. The document discloses that Mr Croke and Ms Lewis signed it on 25 May, and a solicitor for the Crime Commission signed it on 27 May. 5Salient features of the order were as follows: * Provision was made for payment of Mr Croke's costs, agreed at $17,500, out of the restrained property (par 10). * Mr Visser and Ms Lewis were to pay the Commission's costs, agreed at $50,000 (par 11). * Proceeds assessment orders in the sum of $265,500 were made against both Mr Visser and Ms Lewis (pars 12 and 13). The intent was a proceeds assessment order totalling $265,500 for which Mr Visser and Ms Lewis were jointly and severally liable, so that payment of one order would satisfy the other. * Provision was made for a stay of execution of the proceeds assessment orders and the costs orders until a specified date, and for a deferral of the date from which interest on those orders under s 101 of the Civil Procedure Act 2005 would run (pars 16 and 17). * 6On 15 January 2009 Mr Visser filed a motion that the consent order be set aside, and it is that motion which came before me. A number of procedural steps were taken before and during the hearing of the motion, which it not necessary to recite in any detail. Mr Visser prepared the motion and a supporting affidavit himself, and was unrepresented at the hearing. It is sufficient to say that the motion sought a re-hearing under s 42 of the Civil Procedure Act 2005. Clearly, this was misconceived as that section is concerned with an application for re-hearing of proceedings by a party aggrieved by an arbitral award. At the hearing, with the consent of the Commission, Mr Visser filed an amended motion seeking relief under the Contracts Review Act 1980. Also at the hearing, again with the Commission's consent, Ms Lewis was joined as a co-applicant in the motion. 7There were three bases for the application: A substantial payment had been made to Mr Mark Standen, then a senior officer of the Commission, in satisfaction of the Commission's claim. Mr Visser had not given Mr Croke authority to sign the consent order on his behalf. Ms Lewis signed the consent order under pressure from the Commission, without understanding the import of the document. 8Mr Visser read an affidavit and gave oral evidence. Ms Lewis was permitted to give oral evidence without having prepared an affidavit, yet again without objection by the Commission. There is no need to examine the relevant provisions of the Contracts Review Act because I am satisfied that the evidence does not establish any basis for relief under that Act.