Australian Federal Police v Commonwealth Bank of Australia [2014] NSWSC 1443

Supreme Court New South Wales

Medium Neutral Citation: Australian Federal Police v Commonwealth Bank of Australia [2014] NSWSC 1443 Hearing dates: 11/09/2014 Decision date: 11 September 2014 Jurisdiction: Common Law Before: Garling J Decision: (1)Application to vacate order for examination refused. (2)Application for orders made orally today dismissed. (3)Order the applicants to pay the costs of the Commissioner of the Australian Federal Police of today. Catchwords: PROCEDURE - civil - judgments and orders - examination order - Proceeds of Crime Act 2002, s 180 - set aside orders; application for - late application - no error in orders demonstrated - no injustice Legislation Cited: Proceeds of Crime Act 2002 Category: Procedural and other rulings Parties: Australian Federal Police (Plaintiff) Commonwealth Bank of Australia (Defendant) Anh Quan Pham and Thi Yang Huong Le (Applicants) Representation: Counsel: A Moses SC (P) No appearance (D) R M Jefferis (Applicants) File Number(s): 2013/238905

Judgment 1This is an application without a notice of motion being filed by Mr Anh Quan Pham and Mrs Thi Yang Huong Le for an order in the following form: "That the order for examination made on 18 June 2014 with respect to Mr Pham and Mrs Le be rescinded." 2Some procedural history is necessary. On 6 August 2013 the Commissioner of Australian Federal Police ("AFP"), as plaintiff, commenced proceedings in this court seeking amongst other orders a restraining order pursuant to s 19.1(d) of the Proceeds of Crime Act 2002 ("the Act") with respect to property identified in the schedule to the Summons. 3The property identified in the schedule to the Summons consisted of funds standing to the credit of Mr Pham in the Commonwealth Bank of Australia at a specific account number and, secondly, a sum of cash of $18,000 seized by members of the AFP on 2 August 2013 at the Commonwealth Bank of Australia. 4On 6 August 2013 Adams J made the restraining order sought and stood the proceedings over for directions to 3 September 2013. 5On 28 April 2014, Mrs Le and Mr Dinh Thanh Pham, who is not the applicant before me, filed a notice of motion seeking an order pursuant to ss 29, 29A and 31 of the Act excluding from the property restrained by the court's order of 6 August 2013, the funds in the Commonwealth Bank account and the cash seized by the AFP. 6As well, the notice of motion sought a declaration that the funds in the bank account and the cash moneys were held on trust by Anh Quan Pham for the applicant Mr Dinh Thanh Pam and Mrs Le. 7After the service of that notice of motion the Commissioner sought and without opposition was granted orders on 18 June 2014 for the examination of Mr Anh Quan Pham and Mrs Le pursuant to s 180 of the Act. 8As a consequence of that order on 1 August 2014 an approved examiner fixed the examinations to take place on 16 and 17 September 2014 respectively. 9On 2 September 2014, the Registrar of the Common Law Division in light of the fixing of those examinations made a series of orders, one of which was to stand the substantive matter, and a Notice of Motion for exclusion of property, over for directions to 11 November 2014. In support of that Notice of Motion for exclusion of property the two applicants before me today, Mr Anh Quan Pham and Mrs Le, each swore an affidavit which was filed on 28 April 2014. 10Application is made today to this court for the rescission of the orders of 18 June 2014, for the examination to take place. It is submitted that such an order ought be made because of a failure by the Commissioner to provide to the lawyer for the applicants, a direct "yes" or "no" answer to a question which was posed in these terms: "Is it the AFP's intention to arrest, detain or charge either of the examinees or any member of their family travelling with them whle they are in Australia for the purposes of the examination?" 11It is said that the failure of the Commissioner to provide a direct yes or no answer to that question which was apparently first asked on 1 September by letter of the solicitors for the examinees is of such significance that the interests of justice require the court to revoke its earlier order. I am quite unable to see how that is so. The proceedings were commenced by the Commissioner in respect of property. There was a proper basis for the commencement of those proceedings as the interlocutory restraining order made by this court demonstrates. The applications before me today do not oppose the making of an examination order. The terms of the order have been served on their solicitor who was present when the order was made and a least the applicant, Ms Le, seeks an order for her own benefit, namely, that the court exclude from the restraining order the moneys in the Commonwealth Bank account and the cash money; it being said that in truth she has a beneficial interest in both of those funds and, no doubt it would be said those funds did not come from or were not the proceeds of a crime. 12It does not seem to have been raised by the lawyers for the applicants before me when the orders were made that as a condition of the order the court should impose some obligation on the Commissioner to refrain from undertaking his statutory obligations with respect to crimes committed on Australia nor does it seem to have been raised with the court that such an order ought not be made unless the Commissioner consented to examination by audio visual link. In fact the issue about whether or not the applicants before me were to be arrested whilst in Australia does not seem to have occurred at all prior to the correspondence of 1 September 2014. 13I am not persuaded to make any orders. I am not persuaded, firstly, because the orders for examination having been made by a Judge of this court unless there was some error or other inadequacy on the one hand and none is here asserted or, alternatively, there had been a significant change in the circumstances, there is simply no basis to appeal in effect from one Judge of the court to another. 14Secondly, the first bubble seems to have emerged in the correspondence commencing on 1 September from the solicitor for the applicants and it does not constitute, and could not constitute, a fact of circumstances sufficient to enable this court to act to revoke or rescind an earlier order of the court. 15Thirdly, I see no injustice here. The Commissioner has commenced proceedings, and interlocutory processes have been commenced within those proceedings, in which the property is sought to be excluded, at least part of it. Such exclusion would be to the advantage of the applicants. The order for examination was made in the light of an application to exclude property and it is one proper and ordinary step in the process of ensuring a fair hearing between the parties, in accordance with the provisions of the Proceeds of Crime Act. Whether or not the examination should take place by audio visual link, which the approved examiner can order in accordance with s 190 of the Proceeds of Crime Act, has not been expired, because no application has been made of the approved examiner, although the approved examiner has been appointed for at least six weeks. 16Finally, the lateness of the application being brought just a few days before the examinations are due to take place, does not merit a concession in favour of the applicants. 17Altogether, I am simply not satisfied there is any basis for me to vacate the order for examination. 18I make the following orders: (1)Application to vacate order for examination refused. (2)Application for orders made orally today dismissed. (3)Order the applicants to pay the costs of the Commissioner of the Australian Federal Police of today.