In the matter of an application by the Commissioner of the Australian Federal Police

HIS HONOUR: By summons filed on 27 February 2017, the Commissioner of the Australian Federal Police sought a series of orders pursuant to the Proceeds of Crime Act 2002 (Cth). On that day, Adams J made a number of orders, including restraining orders, under s 19 of that Act, in respect of various pieces of property, including a property in Gordon Street, Campsie. On 1 September 2017, Campbell J made forfeiture orders in respect of the restrained property other than the Campsie property: see In the matter of an application by the Commissioner of the Australian Federal Police [2017] NSWSC 1206.

Ms Xiaoting He is the registered proprietor of the Campsie property. Mr Wen Lin is her spouse. They live there with their three children. There is a registered mortgage over the property in favour of Westpac Banking Corporation.

On 13 September 2017, Ms He and Mr Lin filed a notice of motion seeking a declaration pursuant to s 49(4) that it is not in the public interest to forfeit the Campsie property. On 9 November 2018, Ms He and Mr Lin filed an amended notice of motion which included an additional prayer seeking the making of a hardship order pursuant to s 72 of the Act. Registrar Bradford made an order by consent on 29 May 2019 dismissing prayers 3 to 13 of the amended notice of motion and reserving costs.

On 18 September 2019, Registrar Bradford made orders in relation to the filing of evidence in support of the Commissioner’s application for forfeiture of the Campsie property as well as any applications that Ms He and Mr Lin proposed to make. On 6 December 2019, Registrar Jones made an order listing the matter for hearing and directing Ms He and Mr Lin to file any evidence or further applications by 31 January 2020.

The proceedings came before me on 4 March 2020 on the Commissioner’s application for the forfeiture order pursuant to s 49 of the Act. That section provides as follows:

Ms He appeared at the hearing of the application assisted by an interpreter but without legal representation.

It emerged during the course of the proceedings that Ms He opposed the forfeiture order sought by the Commissioner. She did not in terms articulate her position clearly but it soon became apparent, and I concluded at least, that she wished to contend that the Campsie property was neither an instrument of a serious offence nor the proceeds of an offence or, even if it were, that the Court should be satisfied that it is not in the public interest to make an order pursuant to s 49(1) of the Act. Moreover, having regard to two affidavits that Ms He sought to read, it appears that she wished alternatively to make an application for relief of hardship pursuant to s 72 of the Act.

Mr Prince of counsel, who appeared for the Commissioner, and those who instructed him, all assisted me considerably during the course of the proceedings. However, despite that assistance, and uncontroversially, I formed the view that Ms He did not sufficiently understand or appreciate the complexities of her current legal position and that she was not capable of protecting it without legal advice. The matters that are potentially called for determination are not without some complexity: see, for example, Commissioner of the Australian Federal Police v Fernandez (2018) 336 FLR 386; [2018] NSWCA 198. It is clear from that case, if it were not otherwise, that a person in Ms He’s position bears the onus of proving that s 49(4) has been satisfied: Fernandez at [83]-[86]. I do not consider that Ms He will be able properly or adequately to represent herself without a suitably qualified barrister or solicitor.

UCPR r 7.36 is in the following terms:

In my opinion, it is clearly in the interests of the administration of justice that an order be made referring Ms He for pro bono legal assistance. I presently do not know what evidence Ms He may wish to rely upon in addition to the affidavits that she filed in court. I have certainly not had the benefit of written submissions or oral presentation of the way in which Ms He may wish to assert that it is not in the public interest to make an order under s 49(1) of the Act. I do not know even in general terms, and certainly not precisely, how Ms He might wish to contend that any of her dependents may be entitled to relief pursuant to s 72 of the Act. I reiterate that it would not be fair to invite, let alone require, the Commissioner to contribute to the possible clarification of these things at this stage.

The Court and the parties are bound by the overriding purpose to secure the just, quick and cheap determination of all issues in the proceedings. I am particularly concerned that the just disposition of the Commissioner’s application cannot be achieved without Ms He being represented by a legally trained expert. I hasten in that context to note that my reference to securing the just disposition of the proceedings is not intended in any way to suggest that the Commissioner’s approach to this litigation has not been conspicuously and helpfully directed to achieving just such an outcome. The best indicator of that can be seen in the fact that the Commissioner did not oppose the orders that I propose to make, despite the fact that on one view Ms He may well have been considered to have chosen to make a decision, when the proceedings were before the Registrar, not to oppose the Commissioner’s application and that she should not be permitted at this stage to resile from it. My present and troubling concern is that I need to be satisfied that any decisions made by Ms He at that time were informed by a proper understanding of her legal position. The nature and complexity of the present proceedings lead me to have some doubt about that and satisfy me that she is in need of legal assistance.

In the circumstances I propose to make the following orders: