Supreme Court New South Wales Medium Neutral Citation: The Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd (No 2) [2015] NSWSC 1883 Hearing dates: 8 December 2015 Date of orders: 08 December 2015 Decision date: 10 December 2015 Jurisdiction: Common Law Before: Schmidt J Decision: Orders made in terms sought. Catchwords: PROCEDURE – notice of motion – proceeds of crime - restraining orders – further orders made in terms agreed –pleadings – leave sought to amend summons granted Legislation Cited: Criminal Code (Cth) Proceeds of Crime Act 2002 (Cth) Cases Cited: The Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd (Supreme Court (NSW), Bellew J, 17 April 2015, unrep) Category: Procedural and other rulings Parties: The Commissioner of Australian Federal Police (Plaintiff) Pharmacy Depot Hurstville Pty Ltd (First Defendant) Yaakop (Jacob) Youssef (Second Defendant) Hamza Amin Zoghbi (Third Defendant) Representation: Solicitors: Proceeds of Crime Litigation, Australian Federal Police (Plaintiff) Galloways Solicitors & Attorneys (First, Second and Third Defendants) File Number(s): 2015/114787 Publication restriction: No Judgment 1. In April 2015, Bellew J made ex parte orders under the Proceeds of Crime Act 2002 (Cth), including orders under s 18, restraining certain property and orders under s 180, for examination of certain persons (see The Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd (Supreme Court (NSW), Bellew J, 17 April 2015, unrep)). 2. On 8 December 2015, I gave the Commissioner of the Australian Federal Police leave to amend the summons filed in the proceedings and made further orders in terms agreed by the parties to the proceedings, which parties to the Commissioner's 25 November motion, Naima Wahab, Khodr Mohamad Ali and H & J Property Holdings Pty Ltd, did not appear to oppose. 3. I made those orders, being satisfied on the affidavit evidence of Mr Cutler, a member of the Australian Federal Police and an "authorised officer" under s 338 of the Act, who had sworn the affidavit on 17 April 2015, which had formed the basis on which Bellew J had earlier made orders, as well as further affidavits sworn on 20 November and 3 December, that the requirements of s 18 of the Act had been satisfied. That section requires the Court to make certain orders on such satisfaction. 4. Mr Cutler is a member of the Criminal Assets Confiscation Taskforce and the case officer assigned to conduct an investigation into the alleged criminal activities of the defendants. 5. The basis of Mr Cutler's suspicions that the defendants have committed offences under s 134.2 and s 400.9(1) of the Criminal Code (Cth), were outlined in detail, in his affidavits. Like Bellew J, I am satisfied on the material disclosed that there are reasonable grounds to suspect that the defendants have committed serious offences, as defined and that Mr Cutler holds the suspicions to which he deposed, on reasonable grounds. That satisfaction flows from what Mr Cutler explained as to the investigation into suspected fraudulent Pharmaceutical Benefits Scheme claims made by the first defendant, Pharmacy Depot, of which the other two defendants, Mr Youssef and Mr Zoghbi, are working directors and shareholders. 6. The orders made disposed of the motion, other than in respect of certain property, cash, described in Schedule A to the summons, the subject of an application made in a motion filed on 8 December. Orders for the hearing of that motion were also made by consent. 7. The property the subject of the orders is real property associated with the three defendants and their alleged offending, in ways explained in Mr Cutler's affidavits. The defendants consented to the orders sought. Given that the other parties to the motion, who each have an interest in that property, which is suspected to be the result of the provision of proceeds of the defendants offending and under their effective control, did not appear to oppose the orders sought, having been served with the motion, I was satisfied that the orders pressed were appropriate to be made. Orders 1. It was for those reasons that I ordered that: "UPON THE PLAINTIFF PROVIDING, ON BEHALF OF THE COMMONWEALTH, THE USUAL UNDERTAKING AS TO COSTS AND DAMAGES, THE COURT ORDERS BY CONSENT WITHOUT ADMISSIONS, PURSUANT TO SECTION 316 OF THE PROCEEDS OF CRIME ACT 2002 (CTH), THAT Restraining orders 1 Pursuant to section 18 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule One A below must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders 2 Without limiting the Court's Order 8 of 17 April 2015, restraining all of the second defendant's 'property' within the meaning of s 338 of the Proceeds of Crime Act 2002 (Cth), pursuant to section 18 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Two A below must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the Court's Orders in these proceedings. 3 Without limiting the Court's Order 9 of 17 April 2015, restraining all of the third defendant's 'property' within the meaning of s 338 of the Proceeds of Crime Act 2002 (Cth), pursuant to section 18 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Three A below must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the Court's Orders in these proceedings. Custody and control orders 4 Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee in Bankruptcy is to take custody and control of the property specified in Schedule One A below. Amended summons 5 Pursuant to section 64 of the Civil Procedure Act 2005 (NSW), the Plaintiff be granted leave to file an Amended Summons in the form annexed and marked 'A'. Other orders 6 The interested parties file and serve any evidence in support of the First Respondent's Notice of Motion filed 8 December 2015 by Friday, 15 January 2016. The matter is listed for further directions on Tuesday, 16 February at 9:00am. SCHEDULE ONE A Property associated with Pharmacy Depot Hurstville Pty Ltd 1. The interest of Khodr Mohamad Ali in real property located at XXX XXXXXX Road, XXXXXXXXX NSW, being Lot XX in Deposited Plan XXXX. 2. Real property located at XX/X XXXXXXXXX XXXXX, XXXXXXXXXX NSW, being Lot XX in Strata Plan XXXXXX held in the name of H & J Property Holdings Pty Ltd. SCHEDULE TWO A Property associated with Yaakop (Jacob) Youssef 1 Funds standing to the credit of Bankwest account number XXX-XXXXXX-X in the name of Yaakop Youssef and Manam Fares as at 17 April 2015 2 Funds standing to the credit of National Australia Bank Limited account number XXX-XXX XX-XXX-XXXX in the name of Yaakop Youssef, Mohammad Youssef and Inaam Youssef as at 17 April 2015 3 Funds standing to the credit of National Australia Bank Limited account number XXX-XXX XX-XXX-XXXX in the name of Yaakop Youssef as at 17 April 2015 SCHEDULE THREE A Property associated with Hamza Amin Zoghbi 1 Funds standing to the credit of Commonwealth Bank of Australia travel money card number XXXXXXXXXXXXXXXX in the name of Hamza Amin Zoghbi as at 17 April 2015 2 Funds standing to the credit of Australia and New Zealand Banking Group Limited account number XXX-XXX XXXX-XXXXX in the name of Hamza Amin Zoghbi and Naima Wahab as at 17 April 2015 3 Bankwest Home Loan account number XXX-XXXXXX-X in the name of Hamza Amin Zoghbi ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2015