Commissioner of the Australian Federal Police v Tradieh

1. [1]

   On 3 June 2022, Davies J made restraining orders (“the orders”), pursuant to s 17 of the Proceeds of Crime Act 2002 (Cth) (“POC Act”), that the property of Ammar Assad Tradieh (“Mr Tradieh”) must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in that order. Of that property only two items are the subject of this proceedings, which emerged in the Court’s duty list. These are:

   1. (1)

      Real Property at 192 The Inlet Road Bulga, NSW, being Lots 521 and 522 of the Deposited Plan 1046535 (“the Bulga Property”);

   2. (2)

      Toyota HiAce Motor Vehicle being Vehicle Identification Number JTFHT02PX00244606 (“the HiAce Van”) (“the properties”).

2. [2]

   Mr Tradieh is the registered proprietor of the properties.

3. [3]

   The orders sought by the Commissioner of the Australian Federal Police (“Commissioner”) and Westpac Banking Corporation (“Westpac”) were in respect of the exclusion from restraint of Westpac’s interest in the property. Westpac is the registered mortgagee in respect of the properties.

4. [4]

   By an Amended Notice of Motion filed on 28 February 2023, Mr Tradieh sought that, pursuant to ss 29 and 31 of the POC Act that, inter alia, the property be excluded. That exclusion application is listed for hearing before this Court on 3 and 4 October 2023.

5. [5]

   In these proceedings, the Commissioner and Westpac sought consent orders pursuant to s 316(1) of the POC Act that the interest of Westpac as registered mortgagee of the properties be excluded from the orders. The consent orders were signed by the Commissioner and Westpac (“the Consent Orders”).

6. [6]

   When the matter was called, Mr Walker, counsel for Mr Tradieh, opposed the Court making the consent orders.

7. [7]

   The issue raised by Mr Tradieh is whether he is ‘a person who would be affected by the making of the order, as required by s 316(1)(b) of the POC Act.

8. [8]

   I note, before considering the construction of s 316 that as of 12 September 2023, all property restrained by the orders under s 17 in the proceedings (which included the Bulga Property and the HiAce Van and – relevantly – Westpac’s security interest in those properties) was liable to forfeit by operation of s 92 of the POC Act upon the earlier of 28 October 2023 or the dismissal of the defendant’s extant exclusion application. That was because the defendant was convicted of a ‘serious offence’ for the purposes of the POC Act, namely, an offence in connection with the cultivation of illicit tobacco at the Bulga Property.

The POC Act

1. [9]

   Section 316 of the POC Act states that:

2. [10]

   Section 29 of the POC Act relevantly provides:

The Submissions of Mr Tradieh

1. [11]

   In summary, the submissions of Mr Tradieh, in opposition to the orders, were as follows:

   1. (1)

      Mr Tradieh’s submissions emphasised the principle of legality as reflected in Coco v R [1994] HCA 15 at [10].

   2. (2)

      The broad definition provided by s 316(1)(b) of the POC Act is, in part, due to the devastating effects the POC Act can have in the adjustment of rights in relation to property ‘homologous’ with ex parte restraining orders.

   3. (3)

      Procedural fairness reflected in the POC Act permits interested parties to make applications pursuant to the POC Act. Section 316 of the POC Act permits the bypassing of requisite judicial considerations and timeframes to make orders effecting property rights if everyone whom the Court has reason to believe would be affected by the order consents. In the absence of this consent, any interested party is at liberty to make an application pursuant to the POC Act. A consent order without the consent of the registered proprietor is not the correct mechanism to enforce Westpac's purported rights.

   4. (4)

      The grant of the orders avoids due process and the consideration that the Court would ordinarily give as to an exclusion application.

   5. (5)

      If a mortgagee is permitted to deal with the property in question, it will affect the registered proprietor of the property, and as such a consent order pursuant to s 316 of the POC Act cannot be made.

   6. (6)

      Reliance was placed upon the decision of Davies J in Re Application by Commissioner of Australian Federal Police [2018] NSWSC 1302 (“Re Application by Commissioner”) to support the construction of s 316 of the POC Act proposed by Mr Tradieh. It was submitted that inherent in Davies J's reasoning was that, inter alia, as Mr Haddleton had not made an application in respect of the property, his Honour did not have reason, therefore, to believe that Mr Haddleton would be “affected by the order.” In comparison, because Mr Tradieh made an exclusion application, it was submitted that accordingly, he should be considered a person “affected by the order” under s 316(1)(b) of the POC Act .

2. [12]

   I note, the judgment in Re Application by Commissioner [2018] NSWSC 1302 concerned cash seized by the Australian Federal Police, not real property. It is unclear where the cash was seized but Mr Haddleton is purported to have said it was not his cash, he was just an uber driver when he was served the Summons by a federal agent: Re Application by Commissioner (Davies J at [3]).

3. [13]

   It is well settled that legislative provisions must be construed in a manner consistent with the language, purpose, and context of the relevant statute as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70]; SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405 at [14]. In this respect, the statutory purpose is discerned from the legislative text and structure: Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [44].

4. [14]

   The most recent exposition of the principles of statutory construction is found in The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23 at [23] (applying Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at 381 [69])) as follows:

5. [15]

   As the Commissioner correctly submitted, the legislature used the term "affected by the order" in s 316(1)(b) of the POC Act rather than "everyone whom the court has reason to believe claims an interest in the property the subject of the order". That imports a requirement that the making of the order must have a causative effect on such a person. The legislature has also chosen to use the word ‘would’ be affected, rather than ‘may’ be affected. I accept that the use of the words “everyone” and “has reason to believe” tend to indicate that the provision should be read widely but the subsection remains constrained in its operation by the words “be affected” and accordingly the identification of the specified interest so affected.

6. [16]

   Consistent with the need to consider the legislative context, it is necessary to have regard to the overarching framework of the POC Act as well as the principal objects expressly stated: Commissioner of the Australian Federal Police v Hart (2018) 262 CLR 76 at [32]-[33], [35], [48]; Lordianto and Another v Commissioner of Australian Federal Police (Matter No S110 of 2019) (2019) 266 CLR 273; [2019] HCA 39 (“Lordianto”) at [9]-[10], [62], [90]. The principal objects of the POC Act, stated in s 5, include the following:

7. [17]

   The POC Act’s objectives are achieved by a confiscation scheme which includes, relevantly for present purposes, processes for the making of orders restraining the disposal of or other dealing with property, and automatic forfeiture of restrained property following conviction of a serious offence (see s 6 and Parts 2-1 and 2-3 of the POC Act, and Commissioner of AFP v Hart (2018) 262 CLR 76 at [33] (Gordon J))

8. [18]

   In Lordianto, Kiefel CJ, Bell, Keane and Gordon JJ (Edelman J agreeing) stated the following in respect of the POC Act:

9. [19]

   The majority stated the following at [65] and [68] in respect of identifying the interest sought to be excluded from restraint:

10. [20]

    The majority stated the following in respect of the nature of interests held by different parties in respect of a bank account at [104]:

11. [21]

    Thus, the focus on an exclusion application is the ‘specified interest’ sought to be excluded. I agree with the submission for the Commissioner, this is contrasted, for example, with the broader focus on property sought to be restrained under an application under ss 17 or 19 of the POC Act. The broader application of ss 17 or 19 at restraint and, is reflected a restraining order in the form made by Davies J in this proceeding, captures any security interests such as a registered mortgage.

12. [22]

    A registered mortgage of Torrens title land takes effect as a statutory charge or security only, not as a conveyance or ‘transfer’ of the land: s 57 of the Real Property Act 1900 (NSW). Upon registration, the mortgage takes effect as a deed: s 36(11) of the Real Property Act 1900 (NSW).

13. [23]

    Westpac’s rights as registered mortgagee existed prior to, and regardless of, the restraining orders made under the POC Act in this proceeding. I agree with the Commissioner that Westpac’s interest in that respect differs from the defendant’s interest in the Bulga Property and the HiAce Van as the registered proprietor of each.

14. [24]

    It follows that the making of an order excluding Westpac’s interest as registered mortgagee would not affect the defendant in any relevant sense under the POC Act. The exclusion orders do not diminish the defendant’s rights in respect of the Bulga Property. Westpac’s interest was not a competing interest with the defendant’s interest.

15. [25]

    Similar principles and considerations apply in respect of Westpac’s interest in the HiAce Van: s 12 of the Personal Property Security Act 2009 (Cth).

16. [26]

    The Commissioner contended that the Court should have regard to the decision of Slattery J in Chammas v Risk [2015] NSWSC 1213. I agree that this is applicable. The following is extracted from [73] and [74] of that judgment:

17. [27]

    That matter concerned whether a party to proceedings was able to set aside an order made in its absence. I agree with the submissions for the Commissioner that in circumstances where principles of procedural fairness underpin this principle and s 316 of the POC Act, the Court should not afford an interpretation of s 316 of the POC Act which is relatively more generous to “a suspect” than the approach noted in the extract above in the context of applications to set aside orders. The clear purposes of the POC Act support that interpretation.

18. [28]

    Mr Tradieh submitted that the broad definition provided by s 316(1)(b) of the POC Act is, in part, due to the devastating effects the POC Act can have in the adjustment of rights in relation to property ‘homologous’ with ex parte restraining orders. However, for the reasons given above, such an interpretation of s 316 of the POC Act is inconsistent with the objects and purposes of the POC Act, which expressly interferes with property rights of suspects.

19. [29]

    There is a further consideration favouring the above construction. If the Court did construe s 316 of the POC Act as requiring the defendant’s consent for the order to be made, the withholding of consent by the defendant would, in effect, provide a mechanism for the defendant to inhibit the registered mortgagee’s legitimate rights that exist under contract and statute outside of the POC Act proceedings, which are not suspected to be the proceeds or instrument of crime.

20. [30]

    The Commissioner raised an issue as to whether the defendant had standing to oppose an exclusion order in favour of Westpac. It is unnecessary to finally decide that question, particularly in duty list proceedings, but I shall briefly consider the grounds so far as it reflects on the question of construction. The Commissioner’s submissions in this respect have some force for the following reasons:

    1. (1)

       Section 31 of the POC Act provides that:

    2. (2)

       There is no such requirement for the applicant or the Commissioner to provide notice to other persons who claim an interest in property the subject of the Consent Orders for exclusion. Similarly, there is no express provision permitting other persons who claim an interest in property the subject of the exclusion application to appear and adduce evidence at the hearing of the exclusion application brought by ‘the person’.

    3. (3)

       In this matter, ‘the person’ for the purposes of s 31 of the POC Act in respect of the orders sought in the orders is Westpac: Acts Interpretation Act 1901 (Cth), s 2C(1). The specified interest Westpac sought to exclude was its interest as registered mortgagee in respect of the Bulga Property and the HiAce Van.

Conclusion

1. [31]

   In the circumstances, the Court makes the Consent Orders set out in the Short Minutes of Order, provided by the Commissioner.