Commissioner of the Australian Federal Police v Cui [2016] NSWSC 1118

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of the Australian Federal Police v Cui [2016] NSWSC 1118 Hearing dates: 2 August 2016 Date of orders: 15 August 2016 Decision date: 15 August 2016 Jurisdiction: Common Law Before: Fagan J Decision: 1. The application by Weilei Cui and Sushan Li for deferral of the hearing of their notice of motion for an exclusion order until after the hearing and determination of the plaintiff's claim under paragraph 10 of his summons for forfeiture is dismissed.

2. Weilei Cui and Sushan Li are to pay the plaintiff's costs of their application referred to in order 1, such costs to be on an indemnity basis for the hearing of 2 August 2016.

3. The plaintiff is to file and serve any evidence in defence of the s 31 exclusion application of Weilei Cui and Sushan Li, by 5:00pm on 30 August 2016.

4. Weilei Cui and Sushan Li are to file and serve any evidence in reply by 5:00pm on 13 September 2016.

5. The proceedings are stood over to the list of the Common Law Registrar on 14 September 2016 for the appointment of a date for the hearing of the exclusion application. Catchwords: CRIMINAL LAW – proceeds of crime – application for exclusion from restraining order – application for forfeiture order – whether forfeiture application should be heard before exclusion application – Proceeds of Crime Act 2002 (Cth), ss 31 and 49

PRECEDENTS – uniform national legislation – decision of intermediate appellate court – duty of other such courts and single judges to follow Legislation Cited: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) Criminal Code (the Schedule to the Criminal Code Act 1995) (Cth) Proceeds of Crime Act 2002 (Cth) Cases Cited: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Commissioner of the Australian Federal Police v Zhang [2016] VSCA 171 Commissioner of the Australian Federal Police v Zhang (Ruling No 1) [2015] VSC 390 Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Category: Procedural and other rulings Parties: The Commissioner of the Australian Federal Police (Plaintiff/Respondent) Weilei Cui & Shushan Li (Interested Parties) Representation: Counsel: Ms Sharna Clemmett (Plaintiff/Respondent) Mr David O'Connor (Interested Parties)