The Commissioner of the Australian Federal Police ("the Commissioner") moves the Court in its Duty List this morning for orders contained within short minutes of order pursuant to, inter alia, s 49 of the Proceeds of Crime Act 2002 (Cth).
It may be mentioned at the outset that the short minutes of order were originally styled as "consent orders" but were amended to the form that I have described as a result of the non-appearance of the third defendant whose property is sought to be affected by the orders sought within the short minutes of order. That property, to which I will return, is real property located at 248 Kiowarrah Road, Bevendale, New South Wales, lot 248 deposited plan 821796, and being the whole of the land in the identifier folio 248/821796 ("the property").
The matter has proceeded as against the third defendant ex parte as a result of the non-appearance of the third defendant or his legal representative in the proceedings today.
I have formed the view that the matter should proceed in that fashion as, in my view, on the evidence before the Court, including a supplementary statement after inquiry made by the legal representative for the Commissioner upon the request of the Court, there was proper service of materials relevant to the application and notice of the proceedings, in particular, the intention of the Commissioner to move for forfeiture orders in the matter described in the application to which I have referred earlier in this judgment.
Overall, the evidence of the Commissioner consisted of the following:
1. An affidavit of Rachel Elizabeth Meltser affirmed 26 March 2023 which goes to the question of service and the value of property;
2. The affidavit of Joseph Khoury sworn on 24 March 2023 which goes to the question of service;
3. The affidavit of Justin Veitch;
4. The second affidavit of Alexandra Navarrette, which was read in part, and the accompanying exhibit in the proceedings accompany that affidavit marked Exhibit E at pages 1, 2 and 74 to 78 (Exhibit AN-1).
Before proceeding, it should be noted the Court has been provided, and has for the purposes of these proceedings, the restraining order made by Cavanagh J, which order was made on 29 May 2020 and entered on 2 June 2020. By order 11 of the restraining order, his Honour ordered:
Pursuant to s 19 of the Act, the property specified in schedule 2 of these orders (being the property specified in schedule 3 of the amended summons) must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.
The property specified in Sch 3 for the purposes of those orders is the property.
Lastly, before I move to the present application, I mention that the principal proceedings brought by the Commissioner were proceedings by way of an Amended Summons filed in this Court on 29 May 2020. That application was productive of the restraining order to which I have referred and also is the subject or basis for the present application referred to in the short minutes of order.
By para 20B of the Amended Summons, the Commissioner sought a forfeiture order pursuant to s 49 of the Proceeds of Crime Act 2002 ("the Act") that the property listed in Sch 3 be forfeited to the Commonwealth. The property listed in Sch 3 is the property.
Returning to the short minutes of order, by para 1 of the orders sought in the Short Minutes of Order, the Commissioner sought an order broadly in terms with the order sought in the Amended Summons, by which I mean consistently para 20B. By that order, the Commissioner sought, pursuant to s 49 of the Act, that the property specified in Sch 1 (which is the property referred to in Sch 3 of the amended summons filed in these proceedings on 29 May 2020) be forfeited to the Commonwealth. Again, the property as specified in sch 1 is the property.
There is further relief sought in the orders sought by the Short Minutes of Order. Firstly, there is an order sought pursuant to s 56 of the Act as to the value of the property, being a value in the sum of A$577,000. There is a further order sought with respect to s 69(2) of the Act, seeking leave to the Commonwealth and persons acting on its behalf to dispose or deal with the forfeited property in Sch 1 and various other orders as to costs and the final disposition of the proceedings which are set out respectively in paras 4 to 7 of the amended summons.
I turn to the consideration of the application in the light of the summary of background circumstances to which I have referred and the evidence before me for the purposes of these proceedings.
Turning to the provisions of s 49 respectively, I consider that the order sought in paragraph 1 of the Short Minutes of Order should be granted for the following reasons:
1. The provisions of s 49(1)(a) have been satisfied having regard to the restraining order to which I have earlier referred;
2. The provisions of s 49(1)(b) have been satisfied having regard to the same restraining order and the dates upon which the order was made and given effect;
3. I consider that the provisions of s 49(1)(c) have been satisfied having regard to the provisions of s 49(3) in that no application of the kind there described has been made. I take it in that respect the intimation in submissions today as sufficient for the purposes of determining that question.
4. The provisions of s 49(1)(e) have been satisfied, having regard to the conclusions which I have already reached as to the steps taken by the Commissioner which provided effective service and to adequate notice. In particular, I consider that the evidence disclosed and I am satisfied that the requisite authority has taken reasonable steps to identify and notify persons with an interest in the property, namely the third defendant, in person and by his solicitor.
In the circumstances then, those conditions having been satisfied, the introductory words of s 49(1) provide that the Court must make an order that the property specified in the order be forfeited and that is, therefore, the order made.
I turn then to the balance of the orders sought to be made, namely s 56 of the Act. In my view, the provisions of s 56 are met in the present case having regard to the affidavit of Ms Meltser and in that respect, I verify, having regard to that evidence, that the subject amount of A$577,000 is the applicable amount for the purposes of that section. I consider that the application made in para 3 of the Short Minutes of Order is appropriate in the circumstances, having regard to my earlier observations as to the property the subject of the application.
Turning to the balance of the application, there appears to be no reason in the circumstances why costs orders should not be made in the circumstances of the matter in the manner proposed. I further note that, as para 7 of the Short Minutes of Order requests that I do, that by the making of the orders sought by the Commissioner the proceedings are otherwise finalised between the Commissioner and the third defendant. I note that there are proceedings remaining with respect to the other defendants to the proceedings.
I grant the application by the Commissioner in the terms sought in the Short Minutes of Order.
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Decision last updated: 28 March 2023