(2019) 93 ALJR 1282
The Commissioner of the Australian Federal Police v Gwe & Hoang [2018] NSWSC 992
(2017) 338 FLR 241
The Commissioner of the Australian Federal Police v Lordianto [2017] NSWSC 1196
Source
Original judgment source is linked above.
Catchwords
(2019) 93 ALJR 1282
The Commissioner of the Australian Federal Police v Gwe & Hoang [2018] NSWSC 992(2017) 338 FLR 241
The Commissioner of the Australian Federal Police v Lordianto [2017] NSWSC 1196
Judgment (2 paragraphs)
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EX TEMPORE Judgment
By notice of motion filed on 21 February 2020, the defendant in the substantive proceedings seeks orders as follows:
1. Pursuant to section 67 of the Civil Procedure Act 2005 (NSW), an order that the proceedings be stayed pending the disposition of the appeal in The Commissioner of the Australian Federal Police v Gwe & Hoang [2018] NSWSC 992; (2018) 273 A Crim R 410;
2. The plaintiff pay the defendant's costs of and incidental to this application; and,
3. Liberty to apply.
He relies upon an affidavit of Joshua Wong sworn 21 February 2020, and his own affidavit sworn on 19 March 2016; and an amended notice of appeal in the matter of Gwe v The Commissioner of the Australian Federal Police ("Gwe") which is exhibit 1 before the Court.
The Commissioner of the Australian Federal Police, the plaintiff in the substantive proceedings, opposes the orders sought. The Commissioner read an affidavit of Dr Victoria Roberts sworn on 12 March 2020.
These proceedings have their origins in action taken by the Commissioner to restrain assets held in Australia by the defendant, an Indonesian national.
The history of the proceedings to February 2018 appears comprehensively summarised in the judgment of N Adams J in The Commissioner of the Australian Federal Police v Johannes Tjongosutiono [2018] NSWSC 48. What follows assumes and relies upon knowledge of that decision by the listener today (and the reader in the published judgment).
Her Honour was there dealing with an application by the defendant for the revocation of restraining orders made by Davies J on 8 October 2015 under the Proceeds of Crime Act 2002 (Cth).
The matter before her Honour considered whether the Court could be satisfied that there were no grounds to make the restraining order at the time it was made or, if there were, whether the Australian property had ceased to be the proceeds or an instrument of crime as provided by section 330(4) of the Proceeds of Crime Act.
As to that alternative argument, the defendant contended before her Honour that he acquired the restrained assets for sufficient consideration without knowing the property and money was tainted, and in circumstances that would not arouse reasonable suspicion that the property was the proceeds or an instrument of an offence.
The decision in that matter was much delayed as the parties repeatedly sought to provide further written submissions to her Honour, as it became known that this or other courts had delivered judgments in which the operation of the relevant provision was considered. Those decisions were: a decision of the Supreme Court of Western Australia in The Commissioner of the Australian Federal Police v Kalimuthu (No 3) [2017] WASC 108; (2017) 338 FLR 241; a decision of her Honour Simpson J (as she then was) sitting as a single judge in the Common Law Division of this Court in The Commissioner of the Australian Federal Police v Lordianto [2017] NSWSC 1196; (2017) 268 A Crim R 563 and a decision from me in The Commissioner of the Australian Federal Police v Sun [2017] NSWSC 1476.
When her Honour delivered her judgment she had the benefit, perhaps rather dubious in regards to my decision, of those judgments. Her Honour refused the defendant's application.
After her Honour gave judgment, the proceedings were effectively stayed by consent to await delivery by the High Court in a relevant matter of a decision which, it was anticipated, would be dispositive of the construction and application of section 330(4) of the Proceeds of Crimes Act.
On 13 November 2019, the High Court delivered judgment in Lordianto v The Commissioner of the Australian Federal Police [2019] HCA 39; (2019) 93 ALJR 1282. That decision considered and determined the construction of section 330(4).
In the ordinary course, the Commissioner's application would now proceed. The foreshadowed next step in the proceedings is the defendant's application, filed but not yet fixed for hearing, for an order excluding the restrained property from restraint. It is that application and the further determination of the proceedings overall that the defendant seeks to have stayed pending the outcome of an appeal now before the Court of Appeal of this Court, and listed for hearing on 25 August 2020.
The defendant's argument rests on the asserted similarity between the facts of his case and the facts of that matter, which is Gwe. Although it is not contended that the Court of Appeal will make any determination dispositive of the interpretation of section 330(4) of the Act, that function having been served by the High Court decision in Lordianto, it is submitted that the determination of the factual issue at the heart of the appeal will be persuasive of, or influential in, the determination of the defendant's exclusion application.
Exhibit 1 is an amended notice of appeal in Gwe. In particular, the defendant argues that the determination of the proposed ground 2 will be of particular relevance to the determination of his own application. Ground 2 in Gwe is in these terms:
"In considering whether the appellants had discharged their onus of proving that they acquired the relevant property in circumstances that would not arouse a reasonable suspicion, the primary judge erred by drawing the wrong inference in the fact as he found them",
A number of particulars follow.
As is apparent from the decision of Rothman J in Gwe, against which Mr Gwe's appeal lies, the argument in Gwe turned on the contention that Ms Hoang, in checking that money transferred by her from Indonesia to Australia had arrived, never looked beyond the "home screen" of the online internet banking application and, therefore, the circumstances of the transfer were not such as to arouse a reasonable suspicion that the funds deposited into the relevant Australian accounts were the instruments or proceeds of crime. Had she looked beyond the home screen and seen the records of numerous cash deposits from various locations for sums which fell just short of the $10,000 trackable limit, she might have become suspicious, but the factual circumstance in that case was that she did not do so.
As N Adams J set forth in the revocation judgment, the defendant in these proceedings makes similar claims: in transferring money to Australia for the support of family members studying here and for property investment purposes, he only ever checked what is described as "the home screen" of his various accounts, after the expiration of the period in which he had been advised by the money changer that the transfer would be effected, to see that his balance reflected the transfer. His evidence on affidavit was that he did not examine the transaction record and, thereby, become aware that the money entering his accounts did so by structured cash deposits. Deposits effecting a money transfer in that way evaded the attention of authorities and are consistent with money laundering.
The defendant submits that the determination of the Gwe appeal and, specifically, ground 2 will provide persuasive dicta on how a similar factual dispute, as in his matter, should be resolved. He argues that, particularly having regard to the substantial amount of money the subject of the restraining orders, he should be given every opportunity to test the legitimacy of the restraint of assets and be permitted to be, potentially, armed with any helpful or persuasive authority to assist him in that task.
The delay caused, it is submitted, cannot be great - perhaps, in the order of 6 months - and is not determinative of the application. Even though section 56 of the Civil Proceedings Act 2005 (NSW) requires the cheap and quick dispensation of justice, the Court is reminded that the justness of the outcome remains a significant consideration.
If denied a stay, the defendant may be prejudiced in that, if his exclusion application is decided adverse to him and the Gwe appeal subsequently provides authority helpful to him, he would be put to the trouble and expense of an appeal. A short delay, it is argued, would eliminate that possibility.
The Commissioner argues that there is no sufficient reason for a stay of the present proceedings to be granted. The law has now been settled by the High Court in Lordianto, and the Gwe appeal will not determine any issue of principle that could make a difference to the determination of the defendant's exclusion application. Not only does each case turn on its own facts, but the fact in the defendant's case, submits the Commissioner, and those in Gwe are not in any event sufficiently similar as to make the Gwe appeal relevant to the determination of the defendant's matter.
In a matter where there has already been significant delay, proceedings described by counsel for the defendant as "proceeding at a glacier pace", a stay would only increase delay with no real benefit to be obtained thereby.
Since the Commissioner has given an undertaking to this Court with respect to the original restraint proceedings concerning damages, it is argued by the Commissioner that he may be prejudiced by delay.
Determination
There is no question that this Court has the power to order a stay of proceedings in matters such as these. Section 67 of the Civil Procedure Act provides that, subject to the rules of the Court, the Court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day. Further, the Court of course has recourse to its inherent power to stay proceedings if to do so is in the interests of justice.
Having considered the evidence, and the arguments, and read the relevant authorities including, critically, the High Court case in Lordianto and the decisions of Rothman J and N Adams J, in Gwe and this matter respectively, I am not persuaded that there is a proper basis upon which to further delay this matter and order a stay of proceedings pending the outcome of Gwe v The Commissioner of the Australian Federal Police.
As a matter of ordinary procedure, it is uncommon to stay a matter to await a determination of a factual matter in another unrelated case. Generally, each matter is determined on its own facts and factual decisions do not lay down a course that other courts must follow.
Further, there is good reason in this case to doubt the closeness of the factual correlation between the facts in Gwe and those in this matter. Although there are factual similarities in the claim advanced by the defendant, as pointed to by counsel for the defendant in this matter, and those of the applicant in Gwe, there are also some marked dissimilarities.
The similarity is in the contention of each that only the home screen of a banking internet application was viewed such that the nature of the transactions that had occurred to give a particular balance on a particular day were not known.
Mr Tjongosutiono, however, had a further cause to investigate the bona fides of his method of transferring funds from Indonesia to Australia that did not apply in Gwe, and herein lies the first of the dissimilarities. That is in the decision of the Westpac Banking Corporation to reject his business and give notice to him to close his accounts and remove all funds from those accounts.
That feature adds to the defendant's knowledge an extra layer of information relevant to the application for exclusion and the question of whether his suspicions ought to reasonably have been raised by the circumstances of the transfer of funds. That consideration did not apply in Gwe.
Further, as the Commissioner has made clear, unlike in the proceedings in Gwe, it is intended by the Commissioner to cross-examine the defendant on his affidavit in this matter with a view to exploring particularly those aspects of his evidence he deposed to in his 2016 affidavit, which N Adams J found implausible. Given that, it cannot be known what the defendant's evidence will be at the completion of any hearing of the exclusion application. It may be that the defendant will not waiver in his evidence and his evidence overall will be consistent with that as given in his affidavit but, equally, it may be that his evidence varies. What his evidence in total will be is simply unknown at this stage.
On that basis, and having regard to the Westpac evidence, I cannot agree that the determination of the questions of facts at issue in Gwe will or even may provide an influential authority by which the defendant can advance his case. Each case, it seems to me, will turn on its own factual circumstances and the appeal in Gwe is unlikely, even if successful, to materially aid the defendant or determine any matter of principle or construction of relevance to the defendant's case.
In these circumstances, and where this matter has already been before this Court for almost 5 years, further delay to pursue, speculatively, the possibility that the Gwe appeal might be useful to the defendant, cannot be countenanced. I propose, therefore, to dismiss the notice of motion filed in Court on 21 February.
ORDERS:
The orders of the Court are:
1. Notice of Motion filed 21 February 2020 is dismissed.
2. Costs ordered on ordinary basis in favour of the Commissioner payable by the defendant for the costs of these proceedings.
3. The parties are to provide draft Short Minutes of Order to my Chambers via email by 4pm 25 June 2020 as to the future listing of the matter.
[2]
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Decision last updated: 20 July 2020