Solicitors:
Australian Federal Police (Plaintiff / Respondent on the motion)
Australian Criminal and Family Lawyers (Interested Party / First Applicant on the motion)
File Number(s): 2019/219062
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reasons for decision
By a notice of motion filed on 9 April 2021, the first applicant, Njaima Kasmi (hereinafter, "the applicant"), sought a number of procedural orders as to the conduct of the principal proceedings. The principal proceedings, relevantly, involved a substantive application by the applicant for orders under ss 31, 94 and 94A of the Proceeds of Crime Act 2002 (Cth) ("the Act") which application is to be found in an amended notice of motion filed on 12 March 2021.
The matter came before the Court in the Duty List. On the hearing of the matter, the Court made the following orders:
(1) Pursuant to s 93 of the Proceeds of Crime Act 2002 (Cth), an order is made extending the period before the property located at [Broadmeadows Victoria] is forfeited, to 18 December 2021.
(2) Any amended notice of motion in respect of the notice of motion filed on 9 April 2021 by the First Applicant, is to be filed and served by Friday 23 April 2021.
(3) Costs in respect of the notice of motion filed on 9 April 2021 by the First Applicant, be reserved.
(The address referred to in order 1, which has been partially redacted, shall hereinafter be referred to as "the Broadmeadows Property").
These are the reasons for the making of those orders.
Given the course of the proceedings, it is unnecessary to deal with the substance of the various procedural applications as many of them dissipated in the light of a conclusion reached by the Court as to the extension of a forfeiture period (to which I shall return). It is sufficient, for present purposes, to provide a overview of the relevant procedural background.
On 15 July 2019, Adamson J made orders in these proceedings, pursuant to the Act, against Mr Alaedine Rifai, the first defendant and Mr Amal Hilmi, the second defendant ("the July 2019 Orders"): see Application of the Commissioner of the Australian Federal Police; In the matter of Rifai [2019] NSWSC 914 at [22]. Relevantly, the July 2019 Orders restrained a number of items of property, including the Broadmeadows Property, pursuant to s 18 of the Act.
On 16 September 2020, Ms Samira Zeno, solicitor, claiming to act on behalf of the applicant, sent an email to Ms Kelly Minerds, a solicitor previously employed by the Australian Federal Police ("AFP"). Ms Zeno stated in that email that the applicant is the mother of Mr Hilmi and "Hilmi, although being the registered proprietor, does not hold an equitable interest in the property. My client seeks to assert her equitable interest in the property…".
On 18 September 2020, Mr Rifai and Mr Hilmi were sentenced in this Court after pleading guilty to conspiracy to defraud the Commonwealth, contrary to s 135.4(1) of the Criminal Code (Cth).
The "conviction day" as prescribed by s 333 of the Act, for the purpose of the referral notice (issued pursuant to s 92A the Act), was 18 September 2020.
Pursuant to s 92A(1) of the Act, the Commissioner of the AFP ("the Commissioner") gave notice of the following matters:
1. On 18 March 2021, being the day following the end of the 6 month period starting on the conviction day, the Broadmeadows Property will be forfeited to the Commonwealth in accordance with Pt 2-3 of the Act, unless:-
1. The Court makes an order excluding the Broadmeadows Property from forfeiture under s 94 of the Act; and/or
2. The Court makes an order extending the period before property is forfeited under s 93 of the Act.
Section 93 of the Act provides that the Court may make an order extending the period before property is forfeited (an extension order). The extended period specified must end no later than 15 months from the start of the conviction day (i.e. no later than immediately before the start of 18 December 2021).
On 12 March 2021, the applicant brought an application for a 6 month extension of the forfeiture period rather than the maximum available for 9 months.
That application was opposed in proceedings before Lonergan J. The Commissioner contended that there had been "undue delay" within the meaning of s 93(1)(c) in the bringing of the applicant's exclusion application. The consequence of this would have been that the Court's power under s 93 to make an extension order was not engaged. However, the Commissioner submitted that, if s 93 was engaged, it would not submit that an extension should be refused as a matter of discretion.
Lonergan J concluded that the Court's power under s 93 was engaged and granted the application for a 6 months extension of the forfeiture period: The Commissioner of the Australian Federal Police v Rifai - Application by Njaima Kasmi [2021] NSWSC 250.
After the announcement by her Honour that an order for a 6 months extension of the forfeiture period would be granted, in the course of the proceedings in the Duty List, the Commissioner indicated that he would not oppose a further 3 months extension, with such an extension being allowed under the Act (noting the extended period must end no later than 15 months from the start of the conviction day: s 93(1)). The Commissioner did not apply for an extension himself.
It was contended in submissions advanced by Mr K Anderson, counsel for the Commissioner, that Lonergan J had refused to consider an order for a 9 months extension for the forfeiture period on the basis of the relief sought in the application then brought by the applicant.
In a broad sense, that submission is correct, however, as is clear from the transcript of the proceedings, her Honour's observations were made in circumstances where, in my view, counsel for the applicant subsequently made a further application for the extension of the forfeiture period for 9 months.
Her Honour simply did not reach that further application due to the business of the Duty List before her, and the argument in the proceedings as to a 6 month extension had already occupied a significant period of time. That approach was, with respect, no doubt appropriate, but it does not result in a conclusion that the Court is now deprived of jurisdiction to consider an application for a 9 month extension.
The significance of that finding is that the Court is not jurisdictionally barred from considering an application to extend the forfeiture period from a period of 6 months to 9 months. There was an extant application before the Court for such an extension which had not been finally disposed of by the Court.
The Court's jurisdiction to grant an extension to the forfeiture period is found in s 93 of the Act. There are three statutory preconditions to the exercise of the discretion to grant an extension to the forfeiture period. If all three statutory preconditions are satisfied, the Court is able to exercise its discretion to extend the forfeiture period.
The first precondition, as contained in s 93(1)(a) of the Act, is that an application to extend the forfeiture period is made within 6 months of the relevant conviction day for the relevant conviction. As previously mentioned, the relevant conviction was the sentencing of Mr Rifai and Mr Hilmi in this Court on 18 September 2020. Any application to extend the forfeiture period had to be made by 17 March 2021. As discussed above, the application to extend an extension of 9 months was made before Lonergan J on 12 March 2021, which is within the required 6 months since the relevant conviction day. I am, therefore, satisfied that this first statutory precondition has been met.
The second statutory precondition, as considered at s 93(1)(b), is that the party making the application to extend the forfeiture period has also made applications under ss 30 or 31 of the Act to exclude the relevant property from the restraining order, or an application under s 94 of the Act to have the relevant property covered by a restraining order from forfeiture. The applicant in these proceedings has made applications under both ss 31 and 94 of the Act. I am, therefore, satisfied that the second statutory precondition has been met.
The third and final statutory precondition, pursuant to s 93(1)(c) of the Act is that the applications made under either ss 30 or 31 and s94 were made without undue delay and have been diligently followed up by the applicant. I am satisfied about the timeliness of applications made by the applicant seeking relief as per ss 30 or 31 and 94 of the Act. Those applications were made prior to the hearing of the extension application before Lonergan J on 12 March 2021 and neither party raised concerns about the timeliness of those applications before the Court as presently constituted.
The conclusion that the Court does have power to consider such an application has particular significance in the present circumstances because neither party opposed the exercise of the Court's discretion to extend the forfeiture period to 9 months.
It is in those circumstances that the Court exercised the discretion to extend the forfeiture period to 18 December 2021.
Counsel for the defendant, Mr Ahmed, sought for the matter to be listed before a judge who would ultimately preside over the substantive proceedings. However, I note that there are an ill-defined number of interlocutory issues still to be agitated. For these reasons, it is appropriate for the matter to be remitted to the Common Law Registrar's list for case management.
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Decision last updated: 30 June 2021