NSW Crime Commission v Greer [2000] NSWSC 363

Reported Decision : 112 A Crim R 461

New South Wales Supreme Court

CITATION : NSW Crime Commission v Greer [2000] NSWSC 363 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12036/98 HEARING DATE(S) : 6 December 1999 JUDGMENT DATE : 5 May 2000

PARTIES : New South Wales Crime Commission (Applicant) Myra Frances GREER and Anor (Respondents) JUDGMENT OF : Simpson J at 1

COUNSEL : Mr P Singleton (Applicant) Mr D Fitzgibbon (Respondent) SOLICITORS : John M Giorgiutti (Applicant) Wayne Levick & Associates (Respondent) LEGISLATION CITED : Criminal Assets Recovery Act 1990 DECISION : Notice of motion summarily dismissed.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

Friday 5 May 2000

12036/98 NEW SOUTH WALES CRIME COMMISSION v Myra Frances GREER and ANOR Judgment

HER HONOUR : 1 This is an application, by the NSW Crime Commission ("the Crime Commission"), for summary dismissal of the notice of motion filed on 8 November 1999 on behalf of Mr George Greer in proceedings to which he is not a party. The question at issue concerns Mr Greer's standing to make the application contained in the notice of motion. The principal proceedings were initiated under the Criminal Assets Recovery Act 1990 ("the Act"). It is necessary to outline certain of the specific provisions of the Act.

The Legislation 2 By s 10 the Crime Commission may apply to this court for, and if certain conditions are satisfied the court is obliged to make, a restraining order in respect of specified interests in property. By s 22, where a restraining order is in force, the Crime Commission may apply for an assets forfeiture order, the effect of which is to forfeit to the Crown and vest in the Public Trustee the property specified in the order. 3 By s 22 (3) an assets forfeiture order is required to specify the interests in property to which it relates. Sub s (9) requires that notice of the application be given to "a person to whom the application relates" and confers on that person an entitlement person to appear and adduce evidence at the hearing of the application. By s 25 a person whose interest in property is the subject of an application for an assets forfeiture order, or is the subject of an assets forfeiture order, may apply for an exclusion order, the effect of which is to exclude the interest of that person from the operation of the assets forfeiture order. Sub s (4) imposes a time limit of six months from the date of the assets forfeiture order for the making of an exclusion application, but allows for an extension of time in the case of a person who was not given notice of the proceedings.

Background 4 By summons which was given the number 12036/1998 and filed in the Common Law Division on 21 August 1998, the Crime Commission commenced proceedings under the Act. It sought orders in respect of the property of Myra Frances Greer (George Greer's mother) and John Duffy. On 16 April 1999 an assets forfeiture order was made in relation to the property of John Duffy. As required by s 22(4) the order specified the interests in property to which it applied. The interests so specified were the interest of John Duffy in real estate at 5 Blackwood Close, Beecroft and Mr Duffy's interest in an identified 1983 Mercedes Benz motor vehicle. It was common ground that John Duffy was the sole registered proprietor of the real estate. Little attention was paid in the proceedings to the legal ownership of the motor vehicle but Mr Greer, in oral evidence, disclaimed any such title. 5 Subsequently an assets forfeiture order was made in respect of specified interests in property of Myra Frances Greer but this is of no present relevance. 6 On 19 October 1999 Mr Greer's solicitor, Mr Levick, wrote to the Crime Commission in the following terms: "Re: Mr George Greer a person whose interest in Property was forfeited by an Order made by Wood J . On 19 April 1999 I hereby give notice today of an Application for an Exclusion Order under ss. 25 & 26 of the Criminal Assets Recovery Act 1990. I also forward for your attention a copy of a Notice of Appeal which we intend to file by facsimile transmission today and by original tomorrow." 7 On the same day Mr Levick wrote to the Registrar of the Court of Appeal. The letter contained the following: " Re: George Greer Notice of Motion I refer to the above matter in which I became instructed very recently. An Application for an Exclusion Order under ss. 25 & 26 of the Criminal Assets Recovery Act 1990 has been forwarded today by facsimile transmission to the NSW Crime Commission. It is my belief that a Notice of Appeal should also be filed in Mr Greer's matter, however I am concerned that today may well be Mr Greer's last chance in terms of time limitations to file any Notice of Motion. I advise that I will be filing an original copy of this Notice of Motion tomorrow but I ask that you accept this copy by way of facsimile transmission in order that Mr Greer complies with what I believe to be a six (6) month limitation period. …" 8 On 8 November Mr Levick filed the notice of motion which is the subject of the present application. The notice of motion identified George Greer as the applicant and claimed the following orders: "1. That the applicant Mr George Greer be permitted to bring an application to prevent the forfeiture to the New South Wales Crime Commission of: a. A property at 5 Blackwood Close, Beecroft, Sydney. b. A 1983 Mercedes Benz Vehicle found at the property above. Such other orders as the court deems fit." 9 Although the notice of motion on its face could be read as an application for an exclusion order under s 25 of the Act and has inserted in its heading the number 12036/98 (the number of the Crime Commission's proceedings) its heading indicates that it was filed, or was intended to be filed, in the Court of Appeal. 10 The notice of motion was supported by an affidavit sworn by Mr Levick, which contained the same heading and therefore also purported to be filed in the Court of Appeal, but bore the number of the proceedings in this Division. Mr Levick deposed as follows: "2. During the afternoon of Thursday 14th October 1999, Mr George Greer, Mr David Fitzgibbon, Barrister-at-Law, and I held a conference concerning the application for the forfeiture of property owned by both Mr Greer and his mother, Mrs Myra Francis Greer. At the aforesaid meeting it was decided that a Notice Appeal against that order should be prepared and filed by Tuesday 19th October as this was the last day that we were able by law, without leave to file such an appeal against forfeiture of property. [Mr Levick then referred to an annexed affidavit sworn by his secretary which is presently immaterial.] 3. I believe that any forfeiture order made or applied for be stayed until such time as my client's appeal is determined because: a. The evidence adduced by MC Lulan and RG Davis in support of the application for the forfeiture of the property is false and untrue. b. The Criminal Assets and Recovery Act [sic] is in breach of the Common Law and the Acts Imperial Acts Australian Act 1969 NSW [sic] and therefore in breach of the Australian Constitution Act section 80.

i. In that it reverses the onus of proof in serious matters. ii. That the act is based on suspicion alone. iii. Denies a right to trial by jury as contained in Section 80 Australian Constitution Act. 4. I believe that Mr George Greer has a good and valid defence to any order for the forfeiture of property against him under the Criminal Assets and Recovery Act [sic]. 5. I believe that Myra Francis Greer has a good and valid defence to any order for the forfeiture of property against him [sic] under the Criminal Assets and Recovery Act [sic]. 6. On Wednesday 20 October 1999 I was telephoned by a Registrar of the Court of Appeal of the Supreme Court of Australia [sic]. I cannot recall this Registrar's name. However he said words to the effect, 'I have a faxed copy of a Notice of Appeal in the matter of Greer. What is this about?" I said 'These documents have been filed by fax so that we can comply with time limits.' He said 'I appreciate that however they should have been filed in the Common Law Division. I will take them to that Division.' 7. Later that day I was contacted by Mr George Greer who advised me that 'The Court of Criminal Appeal Registry will not accept the documents.'" 11 It is not easy to know what to make of all this. Certainly the documentation bespeaks a confusion about the processes available under the Act. Two relevant possibilities appear to emerge in relation to the notice of motion. The first is that it was filed, and intended to be filed, in the Court of Appeal, as an appeal against the making of the assets forfeiture order. If that is the case then this Division has no jurisdiction to deal with it in any way. The second, and more likely, possibility is that, notwithstanding the way it is framed, and notwithstanding the letter to the Registrar of the Court of Appeal of 19 October, it ought to be treated as filed in this Division. The proceeding number inserted into the heading would lend support to this approach. Further, Mr Greer was represented by counsel in the proceedings, and made no suggestion that the notice of motion could not be dealt with in this Division. I am therefore prepared, for the moment, to assume that it was filed, or was intended to be filed, in this Division and in the proceedings commenced by the Crime Commission. It is to be remembered that those proceedings related to the property of Myra Frances Freer and John Duffy. 12 The next question concerns the proper characterisation of the application contained in the notice of motion. So far as I am able to determine the only statutory provision that could remotely found the application is s 25. Reference was made to this section by counsel for Mr Greer during the course of argument, and, although it is not entirely clear, it seems that the notice of motion was intended to contain an exclusion application under that section. That is how I propose to treat it. 13 Three difficulties then confront Mr Greer. The first is derived from s 25(1). That subsection permits an application for an exclusion order to be made (where, as here, an assets forfeiture has been made) by "a person whose interest in property was forfeited by the order". But there is no assets forfeiture order relating to any property of Mr Greer. The only order in relation to the property identified in the notice of motion is the order forfeiting the interest of John Duffy. Mr Greer, in his evidence, did not claim any identity with John Duffy, and indeed claimed that he had lent money in 1982 to Mr Duffy to purchase the real estate. Mr Greer is not, therefore, a person whose interest in property was forfeited by the assets forfeiture order and he is not a person entitled, by s 25(1), to make an exclusion application. 14 The second difficulty concerns the nature of the interest in the property Mr Greer asserts he has. In relation to the Mercedes Benz, he was asked in his evidence in chief if he had any "monetary interest as such" in the vehicle, and he disclaimed any such interest. Later, he asserted that, while he did not have "a financial interest" in the vehicle, he was owed some money in respect of repairs and maintenance carried out on it while it was in his possession. That is clearly insufficient to give him any legal or equitable interest in the vehicle. The position in relation to his asserted interest in the real estate is more complex. In an affidavit filed in the Federal Court in Bankruptcy proceedings (Ex 3) Mr Greer deposed to having acquired "an interest in [the real estate] (approximately $110,000) acquired in 1982."

In oral evidence in the present application he said that that interest derived from "funds advanced to Mr Duffy to purchase the property back in 1982".

No evidence was called to establish that he had any interest such as might be created by a trust or a mortgage. The evidence is quite insufficient to establish that Mr Greer has any interest in the real estate such as would entitle him to be heard in any way in relation to the property the subject of the assets forfeiture order.

It may be that the foregoing, which no doubt appears very confusing, can be explained by the mention of one simple fact. There was evidence that certain federal authorities believe that John Duffy and George Greer are one and the same person. However Mr Greer denies this and that denial, for present purposes, must be accepted. There is no evidence to establish the contrary proposition. 15 The third difficulty confronting Mr Greer, if his notice of motion is to be taken to be a s 25 exclusion application, is one of time. S 25(4) imposes a time limit of six months from the date of making the assets forfeiture order. That was 19 April 1999. The notice of motion was filed on 8 November 1999 - clearly outside the relevant time limit. If Mr Greer is a person who was not given notice of the original application it lies within the power of the court to extend the time for making such an application. There is no evidence that Mr Green is such a person, although there is equally no reason to suppose that he was given such notice. There is no explicit application for an extension of time, although, on one (generous) reading of the notice of motion, the opening words might be construed as such. Were I favourably disposed to the notion that Mr Greer might otherwise have a valid claim I would incline to the view that the notice of motion should be so interpreted. However, having regard to the conclusions I have reached in relation to his standing to make the application, to grant an extension of time would be a futility. 16 Mr Greer has no standing to make an application under s 25 in relation to the property mentioned in the notice of motion. Accordingly the notice of motion filed on his behalf so far as it is properly within the jurisdiction of this Division, on 8 November 1999 will be summarily dismissed. **********

Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.