The Commissioner of the Australian Federal Police v Mac (No 2) [2013] NSWSC 978

Supreme Court New South Wales

Medium Neutral Citation: The Commissioner of the Australian Federal Police v Mac (No 2) [2013] NSWSC 978 Hearing dates: 18 July 2013 Decision date: 18 July 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Orders made in terms of MFI 1. Catchwords: PROCEEDS OF CRIME - agreement reached - consent orders made Legislation Cited: Proceeds of Crime Act 2002 (Cth) Cases Cited: The Commissioner of the Australian Federal Police v Mac [2013] NSWSC 917 Category: Procedural and other rulings Parties: The Commissioner of the Australian Federal Police (Plaintiff) Tien Ly Mac (Defendant) Representation: Counsel: Mr GJ Jones (Defendant) Solicitors: Mr P McCarthy Proceeds of Crime Litigation Australian Federal Police (Plaintiff) Trivo Lawyers (Defendant) File Number(s): 2011/245126 Publication restriction: None

EX TEMPORE Judgment 1The matter came into the list today for mention as the result of orders which I made while sitting as Duty Judge on 10 July when I ordered that the matter would be mentioned today and that steps would be taken to ensure that the applicant would be before the Court today for reasons which I then explained (see The Commissioner of the Australian Federal Police v Mac [2013] NSWSC 917). 2Today over the course of the morning there have been discussions between the parties over the matters which were due to be heard next week. In the result an agreement has been reached and the parties have now asked the Court to make orders in the proceedings having in mind the provisions of s 316 of the Proceeds of Crime Act 2002 (Cth), which provides: "Consent orders (1) A court may make an order in a proceeding under Chapter 2 with the consent of: (a) the applicant in the proceeding; and (b) everyone whom the court has reason to believe would be affected by the order. (2) The order may be made: (a) without consideration of the matters that the court would otherwise consider in the proceeding; and (b) if the order is an order under section 47 (forfeiture orders relating to conduct constituting serious offences) or 49 (forfeiture orders relating to property suspected of proceeds of indictable offences etc.) - before the end of the period of 6 months referred to in paragraph 47(1)(b) or 49(1)(b) (as the case requires)." 3The proceedings were commenced by summons filed in July 2011 by the Director of Public Prosecutions. On 9 August 2012 a notice of transfer of responsibility pursuant to s 315B(2) of the Proceeds of Crime Act was filed. It gave notice that pursuant to s 315B the Commonwealth Director of Public Prosecutions, with the consent of the Commissioner of the Australian Federal Police, had transferred to the Commissioner responsibility for the application for principal orders and principal orders in these proceedings. Thereafter the Commissioner took various steps in the proceedings, including steps dealt with by Johnson J on 14 February 2013, when an application that steps be taken for the examination of persons there identified for the purposes of the proceedings to take place, was dealt with. 4In those circumstances, it appears, in accordance with the requirements of s 316, that before the Court today the relevant parties, namely, the defendant and the Commissioner for the Australian Federal Police, have consented to the orders which the Court is now asked to make in agreed terms. 5The orders proposed are to be made pursuant to s 29 of the Proceeds of Crime Act as to property to be excluded from restraint. Various property is identified in proposed order 1. Declarations are also sought under s 95 of the Act in relation to property identified at various schedules of the restraining order made by the Court on 8 August 2011 to be forfeited. Otherwise it is to be ordered that the plaintiff's summons and the defendant's motion of 8 October 2011 are to be dismissed and that the parties are to bear their own costs. 6Various matters are also to be noted by the Court, including that the plaintiff is to be released from an undertaking given on 8 August 2011 as to damages; that the defendant undertakes not to make any further application under the Proceeds of Crime Act; that the orders and declarations to which the parties have agreed represent a full and final settlement of the proceedings; and there is also liberty to apply provided for. 7In all of the circumstances, having regard to the provisions of the Act on which the parties rely, I am satisfied that the orders to which they have agreed should be made. Accordingly, I make orders in terms of MFI 1 and note the matters there outlined as well. 8I vacate the hearing fixed to commence on Monday 22 July and also vacate the order that the applicant be brought before the Court that day.