Commissioner of the Australian Federal Police v Hills Greenery Pty Ltd [2024] NSWSC 189

Commissioner of the Australian Federal Police v Hills Greenery Pty Ltd [2024] NSWSC 189

Chapter 2 of the Proceeds of Crime Act 2002 (Cth) evidences an intention to comprise a legislative regime governing the making of restraining and forfeiture orders and challenges to them by affected persons. Because subdivs B and C of Div 5 of Pt 2-2 of Ch 2 of POCA provide legislative avenues for a person claiming a legitimate interest in forfeited property, including a person notified of but absent from the forfeiture hearing, to seek an exclusion order or compensation order with leave, those provisions 'otherwise provided' for the matter within s 79(1) of the Judiciary Act 1903 (Cth). Rule 36.16(2)(b) of the Uniform Civil Procedure Rules was therefore unavailable as a mechanism to set...

Jurisdiction
Australia
Judgment Date
01 March 2024
Procedural Posture
Procedural Ruling in Proceeds of Crime Forfeiture Proceedings / Hearing of Prayers 2 and 3 of the Third Defendant's Notice of Motion Filed on 16 May 2023
Outcome
Prayers 2 and 3 of the notice of motion were dismissed; the third defendant was ordered to pay the plaintiff's costs of the hearing on 23 February 2024; and procedural orders were made for a further amended notice of motion and submissions.
Legal Topics
['federal Jurisdiction' 'judiciary Act 1903 (cth) S 79(1)' 'inconsistency of State and Commonwealth Laws' 'uniform Civil Procedure Rules R 36.16(2)(b)' 'proceeds of Crime Act 2002 (cth) Forfeiture Orders' 'notice of Constitutional Matter']
['constitutional Law' 'civil Procedure' 'proceeds of Crime'] ['federal Jurisdiction' 'judiciary Act 1903 (cth) S 79(1)' 'inconsistency of State and Commonwealth Laws' 'uniform Civil Procedure Rules R 36.16(2)(b)' 'proceeds of Crime Act 2002 (cth) Forfeiture Orders' 'notice of Constitutional Matter']

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Procedural Posture

Procedural Ruling in Proceeds of Crime Forfeiture Proceedings / Hearing of Prayers 2 and 3 of the Third Defendant's Notice of Motion Filed on 16 May 2023

Legal Issues

  1. 1 ['Whether r 36.16(2)(b) of the Uniform Civil Procedure Rules applies in this proceeding by operation of s 79(1) of the Judiciary Act 1903 (Cth).' 'Whether the relevant provisions of the Proceeds of Crime Act 2002 (Cth) otherwise provide within the meaning of s 79(1) of the Judiciary Act 1903 (Cth), excluding resort to r 36.16(2)(b) of the Uniform Civil Procedure Rules to set aside a forfeiture order.' 'Whether the Proceeds of Crime Act 2002 (Cth) provides exclusive avenues for the third defendant to challenge or reduce the effect of the forfeiture order.']

Ratio Decidendi

Chapter 2 of the Proceeds of Crime Act 2002 (Cth) evidences an intention to comprise a legislative regime governing the making of restraining and forfeiture orders and challenges to them by affected persons. Because subdivs B and C of Div 5 of Pt 2-2 of Ch 2 of POCA provide legislative avenues for a person claiming a legitimate interest in forfeited property, including a person notified of but absent from the forfeiture hearing, to seek an exclusion order or compensation order with leave, those provisions 'otherwise provided' for the matter within s 79(1) of the Judiciary Act 1903 (Cth). Rule 36.16(2)(b) of the Uniform Civil Procedure Rules was therefore unavailable as a mechanism to set...

Court Disposition

Prayers 2 and 3 of the notice of motion were dismissed; the third defendant was ordered to pay the plaintiff's costs of the hearing on 23 February 2024; and procedural orders were made for a further amended notice of motion and submissions.

Orders

  • ['Prayers 2 and 3 of the notice of motion are dismissed;' "The third defendant to pay the plaintiff's costs in respect of the hearing on 23 February 2024;" 'The third defendant is granted leave to file a further amended notice of motion;' 'The issue of leave in respect of the amended notice of motion is stood over...