Patterson v Khalsa (No.4) [2014] NSWSC 35

Supreme Court New South Wales

Medium Neutral Citation: Patterson v Khalsa (No.4) [2014] NSWSC 35 Hearing dates: 04/02/2014 Decision date: 04 February 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) I fix the examination of Ms Khalsa on oath as to compliance with the freezing order and other ancillary and related issues to take place at 2 pm on 6 February 2014. (2) I remand Ms Khalsa in custody to the Department of Corrective Services for delivery to the Court at 2 pm on Thursday 6 February 2014. (3) I reserve all questions of costs. (4) I direct that pending the resumption of the examination or any further order of the Court, that the Sheriff keep in safe custody a computer and two iPads belonging to Ms Khalsa, two mobile telephones belonging to Ms Khalsa, the two passports belonging to Ms Khalsa and any cash with which she was in possession at the time she was leaving Australia. Catchwords: FREEZING ORDER - deliberate non-compliance - arrest warrant issued - defendant arrested and detained in custody - whether detention in custody should continue until examination commencing on 6/2/2014 - no point of principle Legislation Cited: Patterson v Khalsa (No 2) 2013 NSWSC 901 Category: Consequential orders Parties: Will Patterson (P) Akal Khalsa (D) Representation: Counsel: J Lonergan SC (P) In person (D) Solicitors: Slater & Gordon (P) File Number(s): 2009/297855

EX TEMPORE Judgment 1On 1 May 2013, on the application of the plaintiff, I made a series of orders against the defendant, Ms Akal Khalsa, with respect to the freezing of her assets, and ancillary orders with respect to the provision of information. There was no compliance with the requirements of a number of paragraphs of the freezing order made on 1 May 2013, and the information required to be provided was not provided. Consequently on 10 May 2013, in light of that failure to comply on the application of the plaintiff, I ordered that Ms Khalsa attend this Court on 18 June 2013 for examination on oath with respect to compliance with the freezing order and other ancillary and related issues. 2When the matter was called on on 18 June 2013, there was no appearance by or on behalf of Ms Khalsa in compliance with that order. I was satisfied on that day that the examination order would have come to her attention. I adjourned the application for examination and I fixed it to take place on 21 June 2013. 3When the matter returned before me on 21 June 2013, I was satisfied that a sealed copy of the orders of the Court had been served on Ms Khalsa in accordance with the Court's orders, and the contents of those orders would have come to her attention. 4There was no appearance by or on behalf of Ms Khalsa when the matter was called for hearing at 2 pm on 21 June 2013. For the reasons which I gave on that day, which are recorded as Patterson v Khalsa (No 2) 2013 NSWSC 901, I issued an arrest warrant in the terms largely contended for by the plaintiff. 5Today, 4 February 2014, pursuant to that arrest warrant the Sheriff of New South Wales and his officers, in compliance with the warrant, have arrested Ms Khalsa and brought her before the Court. The Court has been informed that Ms Khalsa was arrested as a consequence of being detained at Sydney International Airport as she was attempting to depart Sydney to Wellington on a business class ticket on a Qantas flight. The departure documents being used by Ms Khalsa recorded her name as Dr Margaret Maria Saviane. 6When Ms Khalsa was brought to court, the Sheriff handed to the Court the originals of two passports, one an Australian passport issued in the name of Akal Khalsa and the other an Italian passport issued in the name of Margaret Maria Saviane. As well, a bundle of documents were provided to the court as having been in Ms Khalsa's possession when she was detained at the airport. Those documents are not yet the subject of any explanation on oath, or in any other way by Ms Khalsa. 7Ms Khalsa accepts that in the last six months of 2013 she has travelled to New Zealand, to India, to Myanmar and to Malaysia. The documents with which she was found and which have been provided to the Court indicate that she has arrangements to travel from New Zealand to Fiji in the very near future. At the airport, when arrested, Ms Khalsa had in her possession a significant sum of Japanese currency, Yen, in cash. 8In the course of initial discussion with the Court, Ms Khalsa informed the Court that she has no residential address in Sydney and that she is a person who has no assets. However, it does appear from the documents with which Ms Khalsa was found and which have been provided to the Court, that she has a residence in New Zealand, she has purchased a motor vehicle there and as recently as last week has withdrawn a sum of $35,000 from a bank account in her name in the National Australia Bank in Sydney entirely contrary to the terms of the freezing order. As well, during the course of the later discussion, Ms Khalsa informed the Court that she was the "half-owner" of a factory in Sydney. 9Ms Khalsa proposes that pending the fixing of a new date for her examination in accordance with the original Court orders, she be permitted to go at liberty in the community, and to stay with her sister. She says that it would be appropriate for that order to be made because, first, she is no longer in possession of the originals of her passports, secondly, she has no access to any funds which would enable her to leave the jurisdiction, thirdly, her ability to be at liberty is necessary so that she can consult lawyers for the purpose of obtaining advice about the court's orders and the arrest warrant, including with respect to the examination which the Court has ordered to take place with respect to the freezing order which was granted. She offers her promise or personal, and unsupported undertaking to appear in court at 2pm on Thursday next which is when the Court presently anticipates that the examination will be scheduled. 10A court is always reluctant to have any individual deprived of their liberty. Such a step is a significant one and one which is not be taken lightly. It is not a step which is in any measure designed or intended to punish an individual. There is no matter before the Court by way of an application or otherwise for the punishment of Ms Khalsa. However, the Court needs appropriately to be satisfied that, should it make an order permitting Ms Khalsa to be at liberty, she having been brought to Court as a consequence of the arrest warrant, that she will attend in accordance with the Court's order. 11This is not the time for the Court to go behind its earlier orders. That is because there is no application for it so to do; nor is there any material before it which would cause the Court to call into question the basis of any of its earlier orders. Those orders were made for the reasons expressed and published at the time. No application has been made, although one might be, for any of those orders to be discharged. Accordingly, the commencement point for the consideration of this question is the acceptance that those orders were properly made for the reasons there expressed and they presently stand. 12The second matter to be considered is that the Court, in the absence of any application to set aside any orders, should proceed to hold the examination of the defendant in accordance with its previous orders as soon as is reasonably practicable. Given the urgency of the matter, I have determined that the Court should hear the examination of Ms Khalsa on her oath with respect to the matters covered by the freezing order at 2 pm on Thursday 6 February 2014, a little under 48 hours from now. 13That being so the question is whether the Court could be appropriately satisfied that the unsupported promise by Ms Khalsa to live with her sister at a nominated address in Caringbah and to attend at court at 2 pm on Thursday is sufficient to ensure that the Court's orders will be complied with. 14Acknowledging the seriousness of the matter with which I am dealing, I cannot be satisfied on the material presently before me that there is any real prospect that Ms Khalsa would attend at 2 pm on Thursday 6 February. The Court was satisfied when it issued the arrest warrant that there had been disobedience to its orders. I was satisfied that Ms Khalsa had intentionally or deliberately failed to comply with the Court's orders and in those circumstances issued the relevant warrant. 15It is quite clear from the material now before me that Ms Khalsa presents what can properly be described as a serious flight risk. She has passports in different names. She has come and gone from this jurisdiction as she wished over the last six months. She has arrangements to go to other countries should she be allowed to remain at liberty. She has no ties in Sydney except the presence of her sister but she has a home in New Zealand. On the face of things she appears to have been in breach of the Court's freezing orders, knowing of their existence. In those circumstances I am not satisfied that there is any real prospect of Ms Khalsa obeying the Court order and attending at 2 pm on Thursday 6 February. Accordingly, she will be remanded to the custody of the Department of Corrective Services to be produced to court at 2 pm on Thursday 6 February 2014. 16I indicate that because Ms Khalsa has not had the benefit of retaining a lawyer and obtaining legal advice that if she does so, and if she wishes to make any application with respect to her detention in custody, or with respect to the order for the examination which is to take place at 2 pm on Thursday next, I will hear it, because I am the duty judge and I am available to sit and hear any such application on short notice to the Court. All that needs to happen is that any lawyer retained by Ms Khalsa needs to contact my associate for the purpose of obtaining such an order, and also to inform the solicitors for the plaintiff of her intention to make such an application. 17For those reasons I will make the following orders: (1)I fix the examination of Ms Khalsa on oath as to compliance with the freezing order and other ancillary and related issues to take place at 2 pm on 6 February 2014. (2)I remand Ms Khalsa in custody to the Department of Corrective Services for delivery to the Court at 2 pm on Thursday 6 February 2014. (3)I reserve all questions of costs. (4)I direct that pending the resumption of the examination, or any further order of the Court, that the Sheriff keep in safe custody a computer and two iPads belonging to Ms Khalsa, two mobile telephones belonging to Ms Khalsa, the two passports belonging to Ms Khalsa and any cash with which she was in possession at the time she was leaving Australia.