Solicitors:
No Appearances (Applicants)
Australian Federal Police (Respondent)
File Number(s): 2016/236275
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EX TEMPORE Judgment
Listed before the Court today, with an estimate of two weeks, were three notices of motion, namely a notice of motion filed by the six defendants to the proceedings on 11 November 2016, a notice of motion filed by the parents of the first and second defendants; namely, Samir and Hoda Omar on 28 July 2017, together with a notice of motion filed by their sister Aaesha Omar, filed on 28 July 2017.
Each of those notices of motion sought to exclude certain property from restraining orders made by Fagan J ex parte on 8 August 2016 under ss 18 and 19 of the Proceeds of Crime Act 2003 (Cth).
When the notices of motion were called, each of the defendants, as well as the three persons I have referred to were called outside the Court. They did not attend. In fact, in the circumstances in which I will describe it has been discovered that the third to sixth defendants who are corporate entities have been deregistered for some time.
The Commissioner of the Australian Federal Police v Omar [2020] NSWSC 155 | Case summary | Zoe
In those circumstances, it must follow that the notices of motion will be dismissed. I will shortly make orders to that effect.
In addition, the plaintiff in the proceedings and the respondent to the motion, the Commissioner of the Australian Federal Police (the "Commissioner"), seeks orders that apart from the third to sixth defendants, the balance of the applicants on motion pay his costs of the motions, that those costs be paid on an indemnity basis and that those costs be payable forthwith. To address this application, it is necessary to explain the history of the proceedings, including the circumstances in which there was no appearance today.
As stated, on 8 August 2016 Fagan J made orders ex parte under ss 18 and 19 of the Proceeds of Crime Act 2003 (Cth) restraining certain items of property. On 11 November 2016, notices of motion were filed by the first to sixth defendants and those three other persons seeking to exclude property from those orders. In that regard, it should be noted that to obtain those orders, the moving parties had to demonstrate to the Court on the balance of probabilities that the various items of property were not derived from any relevant crime.
Thereafter, orders were made for the service of evidence by the applicants on the motions. The orders were continually flouted. In particular, on 17 November 2016, 14 February 2017, 4 April 2017 and 30 May 2017, various orders were made by the Registrar for the service of evidence, either by the defendants or the interested parties which were effectively not complied with.
Ultimately, on 23 June 2017, after serial non‑compliance, the notices of motion filed by Samir Omar, Hoda Omar and Aaesha Omar were dismissed. Given that some evidence had been served on behalf of the defendant parties, their notices of motion stayed on foot. Orders were made to extend their time for compliance with existing directions.
Notwithstanding those dismissals, on 28 July 2017, a further notice of motion was filed on behalf of Aaesha Omar, and a notice of motion was also filed on behalf of the Samir Omar and Hoda Omar. Thereafter, from that time, until April 2019 the motions meandered along with the Commissioner continually pressing for compliance with directions for the filing of evidence and that being continually flouted by the applicants on the motions, although some evidentiary material was spasmodically filed. It seems that on each occasion when the Commissioner was required to serve affidavits by a particular time, the Commissioner complied.
Ultimately, on 30 April 2019, the Prothonotary made orders listing the motions for hearing commencing today with an estimate of 10 days. Directions were made for the filing of a joint memorandum of issues and facts, together with written submissions to be filed prior to the hearing. One of those orders required that the written submissions on behalf of the applicants be filed by 24 January 2020. Consistent with everything that had happened before, that did not happen.
Ultimately, because of that default, the Commissioner caused the proceedings to be re‑listed on 6 February 2020. The solicitor for the applicants on the motions attended. The solicitor did not indicate at that stage that four of the moving parties; that is, the third to sixth defendants, had, by that time, been deregistered.
In an effort to preserve the hearing date on 6 February 2020, I made orders modifying the timetable for the service of submissions. I granted the parties liberty to restore on one days' notice. Again, there was noncompliance with the modified timetable for the service of written submissions. Accordingly, the Commissioner moved to re‑list the matter before me on 13 February 2020.
There was no appearance for the applicants on the motions on that day, save that seven minutes after the matter was listed, the solicitor for the applicants on the motions sent an email to my Associate, copied to the Commissioner, advising that his instructions had been withdrawn. He stated he was in the process of filing a notice of ceasing to act but that due to prior court commitments, he was unable to appear.
I ordered that the matter be stood over before me sitting as the duty judge on Wednesday 19 February at 10.00am. I also made it clear that I expected the solicitor for the applicants on the motions to attend on that day, given that even though he was in the process of filing a notice of ceasing to act, he was still the solicitor on the record.
Between 13 February 2020 and 19 February 2020, the solicitors for the Commissioner corresponded with the solicitors for the applicants on the motion in an effort to direct him as to his obligation to attend last Wednesday. Ultimately, he did so.
On 19 February 2020, the solicitor advised me that he had ceased to act, and efforts were made to ensure that contact details for the various moving parties were obtained. I directed the solicitor to advise either his clients, or his former clients, that the motion was listed for hearing today, that if they did not attend their motions would be dismissed in their absence, that the Commissioner may apply for costs, and they should advise the solicitor for the Commissioner by 5.00pm on 20 February 2020 whether they intended to appear.
In an effort to reduce costs, I vacated the orders concerning the filing of joint memorandum of issues and fact, and I extended the time for the provision of the balance of all documents to be provided by the Commissioner until 5.00pm today.
It seems that the applicants' former solicitor did advise his former clients as directed. On 20 February 2020, an email was received from the second defendant advising both the Court and the Commissioner that he and the other defendants would not be attending court today. Given the relationship between the first and second defendants and Samir, Hoda and Aaesha Omar, that can be taken as a reference to all the applicants on the motions.
It seems that the difficulties in obtaining contact details for the moving parties from the applicant's former solicitor prompted the Commissioner to undertake company searches of the third to sixth defendants. Those searches revealed that the fourth defendant was deregistered on 15 October 2017, the third defendant was deregistered on 3 June 2018, the fifth defendant was deregistered on 26 August 2018 and the sixth defendant was deregistered on 26 May 2019.
An affidavit read on behalf of the Commissioner sets out the various work done by the Commissioner's legal team in preparing for this hearing, which was considerable. A hearing with an estimate of ten days in the Supreme Court is no small matter. It can be expected that the Commissioner would take it seriously and prepare it accordingly, which he appears to have done so until relieved of compliance with the Court orders.
The Commissioner has filed some short submissions in support of the application for indemnity costs and an order that the costs be payable forthwith. The submissions identify a number of factors said to justify that relief. The first point is that on any view, an order for costs must follow, given that the outcome of the notices of motion is that they will be dismissed. That proposition is clearly correct. Second, so far as costs being payable forthwith and indemnity costs are concerned, the Commissioner's submissions point to the background to which I have referred, as well as the capitulation by the moving parties on the eve of the hearing. The submissions point to the repeated and serious defaults of various orders by the moving parties and the generally desultory manner in which they have pursued their applications. Again, that submission is clearly correct. The submissions also contend that the moving parties' motions were hopeless from their inception. However, given that on a costs application it is not appropriate to assess the merits of the application, I do not need to address that submission, save to accept that there has clearly been a complete and utter capitulation.
The forms of the order that I have been presented with does not seek any order for costs against the third to six defendants, they being deregistered. Further, they do not seek any personal costs order against the solicitor for the moving parties. In that respect, I make no further comment. Otherwise, this is a clear‑cut case for an order for the payment of costs on an indemnity basis, and that those costs be payable forthwith. The moving parties have been in gross default of court orders over a sustained period. Notwithstanding that they secured a hearing for 10 days in this Court they capitulated on the eve of the hearing, thereby causing the Commissioner great cost and expense.
Accordingly, I make the orders in the short minutes of order that have been handed up to me, and that I will sign and date today.
I will vacate all existing orders against the Commissioner for the filing of materials in relation to the notices of motion filed by the defendants, as well as Samir and Hoda Omar and Aaesha Omar.
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Decision last updated: 02 March 2020