Dickson v Commissioner of the Australian Federal Police

THE COURT: This is an application by Mr Dickson for leave to appeal from a decision of Ierace J of 17 June 2022 ([2022] NSWSC 799) whereby his Honour:

On 22 December 2014 Mr Dickson was convicted of offences contrary to ss 135.4(5), 11.5(1) and 400.3(1) of the Schedule to the Criminal Code Act 1995 (Cth) of conspiring with another person to dishonestly cause a loss or risk of loss to the Commonwealth and conspiring to deal with property of a value of $1,000,000 or more, believing it to be the proceeds of crime. Challenges to the convictions were not finally resolved until 12 June 2019. Mr Dickson was unsuccessful. The proceedings seeking a pecuniary penalty, which had been commenced in 2012, were held in abeyance until the criminal proceedings were concluded. Orders under the POC Act for the forfeiture of property were however made earlier.

Relevantly for present purposes, s 134 of the POC Act provides that a proceeds of crime authority, which includes the respondent Commissioner, “may apply for a pecuniary penalty order” within a specified time. Section 136 is in the following terms:

Section 121 of the POC Act provides that in respect of a “serious offence” (which concept includes those of which Mr Dickson was convicted) the penalty amount is relevantly to be determined by valuing the benefits the person received from the commission of the offences, subject to deduction of identified amounts.

The first ground of Mr Dickson’s proposed appeal to this Court involves a challenge to the primary judge’s finding that the Commissioner’s original summons constituted an application by the Commissioner under s 134 of the POC Act for a pecuniary penalty order and also constituted a “written notice of the application” for the purposes of s 136.

His Honour’s conclusions at [51], as follows, were in our opinion clearly correct, with the result that leave to challenge them should not be given:

Mr Dickson’s second proposed appeal ground assumes, incorrectly, that the primary judge granted leave to the Commissioner to make an application for a pecuniary penalty order out of time. As his Honour found that the application was in fact made within time (by means of the filing of the summons), it was unnecessary for him to reach a conclusion on this question and he did not do so. This proposed appeal ground is not therefore a basis upon which leave to appeal should be granted.

Mr Dickson’s third proposed appeal ground involves the proposition, rejected by the primary judge, that the provisions of the POC Act upon which the Commissioner relies are constitutionally invalid because to implement them would require the Court hearing the application for a PPO in a case such as the present to determine the amount of income tax avoided as a result of offences of which Mr Dixon was convicted. Mr Dixon argues that such a determination “can only be made by the Federal Commissioner of Taxation (“FCT”), pursuant to the federal income tax legislation”.

In our view there is no merit in this argument. For the purposes of determining the amount of a pecuniary penalty to be imposed in such a case the Court would, by reason of the terms of s 121 of the POC Act (see [4] above), be required to value the benefits he received from the commission of the offences. In circumstances where the tax evaded was payable not by him personally but by a company of which he was a director, that benefit is not necessarily equivalent to the unpaid tax liability. But assuming that the process would involve an estimation of the amount of the tax avoided, Mr Dickson has not been able to point to any legislative or other prohibition on the Court doing that. A similar exercise is undertaken, for example, when a court assesses damages to be awarded against professionals. If a solicitor or accountant negligently fails to advise a client about the client’s ability to claim a particular tax deduction, there is no reason why the Court should not, for the purposes of assessing damages, estimate the tax that would have been saved if the negligence had not occurred.

An argument to similar effect was raised before, and rejected by, Gageler J of the High Court in Pratten v Commonwealth of Australia [2017] HCATrans 124. Gageler J’s conclusions at lines 107–129, which we respectfully adopt, were as follows:

Gageler J found, as we do, that the argument was so lacking in merit that it could not preclude summary dismissal of the relevant proceeding.

Mr Dickson’s fourth proposed appeal ground contains a number of sub-grounds. None of them raises a point that is arguably supportive of his application. It is unnecessary therefore to address them in any detail. We simply note, contrary to propositions forming part of those sub-grounds, that Mr Dickson did not demonstrate before this Court that the primary judge overlooked any material submissions or evidence of Mr Dixon, did not understand Mr Dixon’s “cardinal argument”, failed to refer to any High Court decision that ought to have been referred to or otherwise erred in making his dismissal orders.

For these reasons the Court dismisses Mr Dickson’s application for leave to appeal, with costs.