Supreme Court New South Wales Medium Neutral Citation: In the matter of an application by the Commissioner of the Australian Federal Police [2020] NSWSC 179 Hearing dates: 4 March 2020 Date of orders: 06 March 2020 Decision date: 06 March 2020 Jurisdiction: Common Law Before: Harrison J Decision: (1) Refer Xiaoting He to the Registrar of the Court for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance with respect to: (a) Advice generally in relation to the Commissioner's application for forfeiture of the Campsie property and any rights that she may have having regard to either s 49(4) or s 72 of the Proceeds of Crime Act 2002; (b) Representation generally in the conduct of the remaining issues in the proceedings, in particular the Commissioner's current forfeiture application, including at directions, interlocutory or final hearings; (c) Drafting or settling documents to be filed or used in the proceedings. (2) Adjourn the proceedings for directions before me at 9.30am on 1 May 2020. (3) Reserve the costs of and incidental to the hearing of the Commissioner's motion for a forfeiture order with respect to the Campsie property. (4) Grant liberty to the parties to apply on 48 hours' notice to the Court by arrangement with my Associate. Catchwords: CIVIL PROCEDURE – where defendant not legally represented – referral to pro bono legal assistance CRIME – proceeds of crime – application for forfeiture of property Legislation Cited: Proceeds of Crime Act 2002 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Commissioner of the Australian Federal Police v Fernandez (2018) 336 FLR 386; [2018] NSWCA 198 In the matter of an application by the Commissioner of the Australian Federal Police [2017] NSWSC 1206 Category: Procedural and other rulings Parties: Commissioner of the Australian Federal Police (Plaintiff) Representation: Counsel: T Prince (Plaintiff) Solicitors: Australian Federal Police, Criminal Assets Litigation (Plaintiff) File Number(s): 2017/62310 Publication restriction: Nil Judgment 1. HIS HONOUR: By summons filed on 27 February 2017, the Commissioner of the Australian Federal Police sought a series of orders pursuant to the Proceeds of Crime Act 2002 (Cth). On that day, Adams J made a number of orders, including restraining orders, under s 19 of that Act, in respect of various pieces of property, including a property in Gordon Street, Campsie. On 1 September 2017, Campbell J made forfeiture orders in respect of the restrained property other than the Campsie property: see In the matter of an application by the Commissioner of the Australian Federal Police [2017] NSWSC 1206. 2. Ms Xiaoting He is the registered proprietor of the Campsie property. Mr Wen Lin is her spouse. They live there with their three children. There is a registered mortgage over the property in favour of Westpac Banking Corporation. 3. On 13 September 2017, Ms He and Mr Lin filed a notice of motion seeking a declaration pursuant to s 49(4) that it is not in the public interest to forfeit the Campsie property. On 9 November 2018, Ms He and Mr Lin filed an amended notice of motion which included an additional prayer seeking the making of a hardship order pursuant to s 72 of the Act. Registrar Bradford made an order by consent on 29 May 2019 dismissing prayers 3 to 13 of the amended notice of motion and reserving costs. 4. On 18 September 2019, Registrar Bradford made orders in relation to the filing of evidence in support of the Commissioner's application for forfeiture of the Campsie property as well as any applications that Ms He and Mr Lin proposed to make. On 6 December 2019, Registrar Jones made an order listing the matter for hearing and directing Ms He and Mr Lin to file any evidence or further applications by 31 January 2020. 5. The proceedings came before me on 4 March 2020 on the Commissioner's application for the forfeiture order pursuant to s 49 of the Act. That section provides as follows: 49 Forfeiture orders--property suspected of being proceeds of indictable offences etc. (1) A court with * proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if: (a) the * responsible authority for a * restraining order under section 19 that covers the property applies for an order under this subsection; (b) the restraining order has been in force for at least 6 months; (c) the court is satisfied that one or more of the following applies: (i) the property is * proceeds of one or more * indictable offences; (ii) the property is proceeds of one or more * foreign indictable offences; (iii) the property is proceeds of one or more * indictable offences of Commonwealth concern; (iv) the property is an instrument of one or more * serious offences; and (e) the court is satisfied that the authority has taken reasonable steps to identify and notify persons with an * interest in the property. (2) A finding of the court for the purposes of paragraph (1)(c): (a) need not be based on a finding that a particular person committed any offence; and (b) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in paragraph (1)(c) was committed. (3) Paragraph (1)(c) does not apply if the court is satisfied that: (a) no application has been made under Division 3 of Part 2-1 for the property to be excluded from the * restraining order; or (b) any such application that has been made has been withdrawn. Refusal to make a forfeiture order (4) Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied: (a) is an * instrument of a * serious offence other than a * terrorism offence; and (b) is not * proceeds of an offence; if the court is satisfied that it is not in the public interest to make the order. 1. Ms He appeared at the hearing of the application assisted by an interpreter but without legal representation. 2. It emerged during the course of the proceedings that Ms He opposed the forfeiture order sought by the Commissioner. She did not in terms articulate her position clearly but it soon became apparent, and I concluded at least, that she wished to contend that the Campsie property was neither an instrument of a serious offence nor the proceeds of an offence or, even if it were, that the Court should be satisfied that it is not in the public interest to make an order pursuant to s 49(1) of the Act. Moreover, having regard to two affidavits that Ms He sought to read, it appears that she wished alternatively to make an application for relief of hardship pursuant to s 72 of the Act. 3. Mr Prince of counsel, who appeared for the Commissioner, and those who instructed him, all assisted me considerably during the course of the proceedings. However, despite that assistance, and uncontroversially, I formed the view that Ms He did not sufficiently understand or appreciate the complexities of her current legal position and that she was not capable of protecting it without legal advice. The matters that are potentially called for determination are not without some complexity: see, for example, Commissioner of the Australian Federal Police v Fernandez (2018) 336 FLR 386; [2018] NSWCA 198. It is clear from that case, if it were not otherwise, that a person in Ms He's position bears the onus of proving that s 49(4) has been satisfied: Fernandez at [83]-[86]. I do not consider that Ms He will be able properly or adequately to represent herself without a suitably qualified barrister or solicitor. 4. UCPR r 7.36 is in the following terms: 7.36 Referral to a barrister or solicitor (1) If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. (2) For the purposes of subrule (1), the court may take into account-- (a) the means of the litigant, and (b) the capacity of the litigant to obtain legal assistance outside the scheme, and (c) the nature and complexity of the proceedings, and (d) any other matter that the court considers appropriate. (2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral. (3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person. (4) If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel. (4A) If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant's referral, the registrar may make an order terminating the litigant's referral. (5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral. (6) A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister. 1. In my opinion, it is clearly in the interests of the administration of justice that an order be made referring Ms He for pro bono legal assistance. I presently do not know what evidence Ms He may wish to rely upon in addition to the affidavits that she filed in court. I have certainly not had the benefit of written submissions or oral presentation of the way in which Ms He may wish to assert that it is not in the public interest to make an order under s 49(1) of the Act. I do not know even in general terms, and certainly not precisely, how Ms He might wish to contend that any of her dependents may be entitled to relief pursuant to s 72 of the Act. I reiterate that it would not be fair to invite, let alone require, the Commissioner to contribute to the possible clarification of these things at this stage. 2. The Court and the parties are bound by the overriding purpose to secure the just, quick and cheap determination of all issues in the proceedings. I am particularly concerned that the just disposition of the Commissioner's application cannot be achieved without Ms He being represented by a legally trained expert. I hasten in that context to note that my reference to securing the just disposition of the proceedings is not intended in any way to suggest that the Commissioner's approach to this litigation has not been conspicuously and helpfully directed to achieving just such an outcome. The best indicator of that can be seen in the fact that the Commissioner did not oppose the orders that I propose to make, despite the fact that on one view Ms He may well have been considered to have chosen to make a decision, when the proceedings were before the Registrar, not to oppose the Commissioner's application and that she should not be permitted at this stage to resile from it. My present and troubling concern is that I need to be satisfied that any decisions made by Ms He at that time were informed by a proper understanding of her legal position. The nature and complexity of the present proceedings lead me to have some doubt about that and satisfy me that she is in need of legal assistance. 3. In the circumstances I propose to make the following orders: 1. I refer Xiaoting He to the Registrar of the Court for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance with respect to: 1. Advice generally in relation to the Commissioner's application for forfeiture of the Campsie property and any rights that she may have having regard to either s 49(4) or s 72 of the Proceeds of Crime Act 2002; 2. Representation generally in the conduct of the remaining issues in the proceedings, in particular the Commissioner's current forfeiture application, including at directions, interlocutory or final hearings; 3. Drafting or settling documents to be filed or used in the proceedings. 1. I adjourn the proceedings for directions before me at 9.30am on 1 May 2020. 2. I reserve the costs of, and incidental to, the hearing of the Commissioner's motion for a forfeiture order with respect to the Campsie property. 3. I grant liberty to the parties to apply on 48 hours' notice to the Court by arrangement with my Associate. ********** 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: 06 March 2020