Commissioner of the Australian Federal Police v Cui [2016] NSWSC 1118

Commissioner of the Australian Federal Police v Cui [2016] NSWSC 1118

The applicants' request to defer their s 31 exclusion application until after the Commissioner's s 49 forfeiture application was dismissed because, on the proper construction of the Proceeds of Crime Act 2002 (Cth) as explained in Commissioner of the Australian Federal Police v Zhang [2016] VSCA 171, an exclusion application from a restraining order must be determined before a forfeiture application over restrained property. If forfeiture were granted, the property would vest absolutely in the Commonwealth and the exclusion application would have no utility.

Jurisdiction
Australia
Judgment Date
15 August 2016
Procedural Posture
Proceedings Under the Proceeds of Crime Act 2002 (cth) Concerning a Restraining Order, an Exclusion Application and a Forfeiture Application / Interlocutory Ruling on Whether the S 31 Exclusion Application Should Be Deferred Until After Determination of the Plaintiff's S 49 Forfeiture Application
Outcome
The application for deferral of the exclusion application until after hearing and determination of the forfeiture application was dismissed, with costs against Weilei Cui and Sushan Li on an indemnity basis for the hearing on 2 August 2016, and directions were made for evidence and listing of the exclusion application.
Legal Topics
['application for Exclusion From Restraining Order' 'application for Forfeiture Order' 'sequence of Hearings' 'uniform National Legislation' 'duty to Follow Intermediate Appellate Authority']
['criminal Law' 'proceeds of Crime' 'civil Procedure' 'precedent'] ['application for Exclusion From Restraining Order' 'application for Forfeiture Order' 'sequence of Hearings' 'uniform National Legislation' 'duty to Follow Intermediate Appellate Authority']

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Procedural Posture

Proceedings Under the Proceeds of Crime Act 2002 (cth) Concerning a Restraining Order, an Exclusion Application and a Forfeiture Application / Interlocutory Ruling on Whether the S 31 Exclusion Application Should Be Deferred Until After Determination of the Plaintiff's S 49 Forfeiture Application

Legal Issues

  1. 1 ["Whether Weilei Cui and Sushan Li's s 31 exclusion application could be kept on foot and heard after the Commissioner's s 49 forfeiture application." "Whether the Court should follow the Victorian Court of Appeal's construction of the Proceeds of Crime Act 2002 (Cth) in Commissioner of the Australian Federal Police v Zhang [2016] VSCA 171." 'Whether indemnity costs should be ordered for the hearing on 2 August 2016.']

Ratio Decidendi

The applicants' request to defer their s 31 exclusion application until after the Commissioner's s 49 forfeiture application was dismissed because, on the proper construction of the Proceeds of Crime Act 2002 (Cth) as explained in Commissioner of the Australian Federal Police v Zhang [2016] VSCA 171, an exclusion application from a restraining order must be determined before a forfeiture application over restrained property. If forfeiture were granted, the property would vest absolutely in the Commonwealth and the exclusion application would have no utility.

Court Disposition

The application for deferral of the exclusion application until after hearing and determination of the forfeiture application was dismissed, with costs against Weilei Cui and Sushan Li on an indemnity basis for the hearing on 2 August 2016, and directions were made for evidence and listing of the exclusion application.

Orders

  • ["The application by Weilei Cui and Sushan Li for deferral of the hearing of their notice of motion for an exclusion order until after the hearing and determination of the plaintiff's claim under paragraph 10 of his summons for forfeiture is dismissed." "Weilei Cui and Sushan Li are to pay the plaintiff's costs of...