Dickson v Commissioner of the Australian Federal Police

By a statement of claim filed on 11 September 2018, the plaintiff, Mr Dickson, sought the following relief:

On 30 November 2018, the defendant, the Commissioner of the Australian Federal Police, filed a notice of motion seeking:

In support, the Commissioner relied upon the affidavit Christine Plevey sworn 30 November 2018 and the exhibits to that affidavit.

Mr Dickson also moved the Court on a notice of motion dated 28 January 2019 seeking:

In support of his notice of motion, Mr Dickson relied upon his affidavit dated 19 August 2018 and his two affidavits of 3 May 2019.

At this point is important to note that Mr Dickson was found guilty on 22 December 2014 of conspiracy to dishonestly cause a loss, or a risk of loss, to the Commonwealth, knowing or believing there was a substantial risk of the loss occurring, contrary to s 135.4(5) of the Criminal Code Act 1995 (Cth) (the “Code”) and conspiracy to deal with property of a value of $1 million or more believing it to be the proceeds of crime contrary, to s 11.5(1) and s 400.3(1) of the Code. These are both indictable offences carrying a maximum penalty in excess of 5 years’ imprisonment.

Mr Dickson was on 11 September 2018, and is currently, in custody serving a term of imprisonment as a result of being convicted of those offences. The applicable sentences were imposed by the Court of Criminal Appeal when resentencing after a successful Crown appeal against sentence: see Dickson v R [2016] NSWCCA 105. It is sufficient to note that the sentences commenced on 22 December 2014, the non-parole period expires on 21 March 2024 and the last sentence expires on 21 December 2028.

The Felons (Civil Proceedings) Act 1981 (NSW) (“the Felons Act”) provides in s 4 that:

Under s 21 of the Interpretation Act 1987 (NSW), the expression “serious indictable offence” in any Act means “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more”.

Accordingly, Mr Dickson required leave of the Court to institute the present proceedings in this Court, to the extent that they are “civil proceedings”. The fact that proceedings for which leave is required are commenced without leave does not render the proceedings a nullity. In such a case, leave under s 4 may be sought and granted nunc pro tunc: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290 (Sheller JA, Beazley JA and Sheppard AJA agreeing); SW v State of New South Wales [2010] NSWSC 966 at [14] and [15] (Johnson J).

Section 5 of the Felons Act, however, prohibits the Court from granting leave under s 4:

Section 7 of that Act provides that, except with the leave of the Court to which the application is made, neither the applicant nor the person who would be the defendant if the proceedings were instituted, is entitled to appear or be represented at the hearing or determination of the application for leave to institute proceedings.

Mr Dickson applied for leave to institute the proceedings, under s 4 of the Felons Act, by a document headed “Plaintiff’s Summary Submissions on Leave” filed on 10 October 2018. (The statement in par 1 of that document that the statement of claim was filed on 27 August 2018 appears to refer to the fact that the statement of claim was lodged on 27 August 2018 but was not accepted for filing until 11 September 2018: see par 20 of that document.)

Mr Dickson’s submissions on the application for leave under the Felons Act proceeded on the implicit assumption that the proceedings were “civil proceedings” for the purposes of that Act.

In Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 (“Patsalis”), Basten JA held, at [9] and [57] that applications for judicial review of administrative decisions or other applications in the supervisory jurisdiction of this Court reflected in s 69 of the Supreme Court Act 1970 (NSW) were not “civil proceedings” within the meaning of s 4 of the Felons Act. Sackville AJA, at [112] agreed that leave was not required in order to institute the proceedings by which the applicant sought judicial review of various decisions relating to the conditions of his incarceration and to his entitlement to access legal documents while in custody. Allsop P (as his Honour then was) agreed, at [1], with Basten JA and Sackville AJA and added comments at [5] to [7] that suggested, without deciding, that the phrase “civil proceedings” would include an "action for a civil wrong" understood as a claim for a private remedy to redress an injury from wrongful conduct whether at common law, in equity or statute.

Although framed as declarations that the restraining order is void ab initio (which gives rise to issues which are addressed below), the relief which Mr Dickson seeks appears to involve the power of the Court to set aside its own perfected orders for fraud and for abuse of process.

Proceedings of this nature, as well as proceedings for exemplary damages (as sought in the plaintiff’s statement of claim), are not proceedings for judicial review of administrative decisions or other applications in the supervisory jurisdiction of this Court. They are proceedings effectively seeking private remedies to redress an injury from wrongful conduct whether at common law, in equity or under the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). On this basis, the nature of the relief effectively sought in the statement of claim establishes that these proceedings can be taken to be “civil proceedings” for the purposes of s 4 of the Felons Act. Accordingly, the plaintiff does require leave to institute the proceedings.

It does not appear that the question of whether leave to institute the present proceedings has been determined previously. As a result and given that both parties were in a position to make submissions on that topic when the notices of motion of the defendant and the plaintiff, referred to above, came on for hearing before me on 17 May 2019, it is appropriate that, under s 7 of the Felons Act, I grant leave to Mr Dickson to appear in person and to the Commissioner to be represented at the hearing on 17 May 2019 of the application for leave under s 4 of the Felons Act.

As noted above, by operation of s 5 of the Felons Act the Court must not grant leave under s 4, unless satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings. In substance, the same issues, namely whether the proceedings are an abuse of process and whether a reasonable cause of action is disclosed, are raised by defendant’s notice of motion seeking to have the statement of claim struck out, under UCPR r 14.28(1)(a) and (c), and an order that the proceedings be dismissed, under UCPR r 13.4(1)(b) and (c).

Consequently, the issues to be determined largely, if not entirely, overlap. In these circumstances, it is convenient to consider the Commissioner’s notice of motion seeking to have the statement struck out and the proceedings dismissed at the same time as the application for leave to institute proceedings under the Felons Act. Only if Mr Dickson is successful in relation to both of those applications will it be necessary to address his notice of motion for summary judgment. If he is unsuccessful in obtaining leave to institute the proceedings under the Felons Act or in opposing the Commissioner’s application for summary dismissal, Mr Dickson’s summary judgment application will necessarily fail.

In order to understand the nature and viability of Mr Dickson’s pleaded case in relation to fraud and abuse of process, it is necessary to set out the background not only to the orders made under the Proceeds of Crime Act 2002 (Cth) (“POC Act”) but also what occurred in the related criminal proceedings.

The Australian Taxation Office (“ATO”) commenced an audit of Neumedix Health Australasia Pty Ltd (“NHA”) in March 2010.

In April 2012, the Commissioner of the Australian Federal Police made ex parte applications under the POC Act for restraining orders which prevented Mr Dickson, his co-accused and others from disposing of, or otherwise dealing with, assets including bank accounts and real estate, said to be worth more than $150 million, and said to be derived from the activities of NHA.

In about April 2012, the Australian Federal Police (“AFP”) executed search warrants and seized documents, computers and related equipment relating to NHA and assets associated with it.

Following the making of the restraining orders under the POC Act, Mr Dickson and his co-accused were charged with offences in relation to the activities of NHA. The charges can be adequately described for present purposes as being to the following effect:

Mr Dickson was tried in 2014 and, on 22 December 2014, was found guilty of the two offences. He was convicted and sentenced for these offences on 20 March 2015: R v Anthony James Dickson (No 18) [2015] NSWSC 268 (“Dickson 18”). In Dickson 18, Beech-Jones J described in general terms the conduct found to have been proved in the criminal proceedings as follows:

There followed a considerable number of appeals and applications in relation to both the convictions and the POC Act orders.

It is now necessary to examine what occurred in relation to the applications under the POC Act and in relation to the criminal proceedings in more detail. What occurred is set out below largely in chronological order although proceedings in various courts overlapped from time to time.

On 5 April 2012 the Commissioner commenced proceedings under the POC Act in this Court by a summons in which Mr Dickson was named as the first defendant along with 12 other defendants (together the “POC defendants”). The principal relief sought was orders under s 18 of the POC Act preventing the POC defendants from disposing of or otherwise dealing with the property specified in schedules 1 and 2 to the summons.

The summons came before McCallum J (as her Honour then was) on 5 April 2012 and the Commissioner was represented by Alan Sullivan QC and Marcus Hassall on that occasion.

The Commissioner’s application was supported by the affidavit of an AFP officer, Mr Sandon, sworn 4 April 2012. In that affidavit, Mr Sandon stated, among other things, that he suspected that:

Mr Sandon also stated in that affidavit the grounds on which he suspected that Mr Dickson had committed the offences were as follows:

A copy of the statement of facts was exhibited to the affidavit. The exhibit consisted of a one-page executive summary, a three-page case theory and the statement of facts itself, consisting of 205 paragraphs and 3 attachments.

Mr Sullivan QC made oral and written submissions to McCallum J on 5 April 2012. After considering the material and the submissions, her Honour made orders on 5 April 2012 and published her written judgement on 11 April 2012 setting out the reasons for making those orders: The Commissioner of the Australian Federal Police v Q (NSW Supreme Court, 11 April 2012, unrep).

The orders made by McCallum J on 5 April 2012 included, among others:

In addition, on 5 April 2012 McCallum J also ordered:

A copy of Mr Sandon’s affidavit was sent by email to Mr Dickson on 24 April 2012. That email informed Mr Dickson that a copy of the exhibit to Mr Sandon’s affidavit had been left at his address in Northbridge, New South Wales.

By notice of motion filed on 26 April 2012, the Commissioners sought various orders, including a further restraining order in respect of property owned by, or suspected of being under the effective control of, Mr Dickson, being funds held in a number of Bank of New Zealand accounts.

The application was heard by Beech-Jones J on 26 April 2012. Mr Hassall of counsel appeared for the Commissioner, who relied upon further affidavits of Mr Sandon sworn 23 and 26 April 2012, in addition to his earlier affidavit of 4 April 2012, among others. Mr Hassall made limited oral submissions and relied upon written submissions.

On 26 April 2012, Beech-Jones J made a restraining order under s 18 of the POC Act in respect of the property in schedule 1 to the notice of motion. In addition, his Honour made the following orders:

On 26 April 2012, Beech-Jones J gave oral reasons for his decision: Commissioner of Australian Federal Police v Thirteen Defendants (NSW Supreme Court, 26 April 2012, unrep).

On 13 May 2013, the Commissioner sought further restraining orders in respect of property owned by or suspected of being under the effective control of Mr Dickson. Further restraining orders were made by Beech-Jones J on 13 May 2013.

Mr Dickson’s trial on the two counts was conducted between 4 August 2014 and 22 December 2014. He was found guilty on both counts. The proceedings on sentence were heard over three days in February 2015 and on 20 March 2015, Mr Dickson was convicted and sentenced to: imprisonment for 7 years and 6 months (commencing on 22 December 2014) for the tax fraud offence; and 9 years (commencing on 22 December 2016) for the money laundering offence; with a single non-parole period of 7 years expiring on 21 December 2021: R v Anthony James Dickson (No 18) [2015] NSWSC 268.

Mr Dickson appealed to the Court of Criminal Appeal against his conviction and the Crown appealed against the sentence.

Under s 92 of the POC Act, if a person is convicted of a serious offence, any restrained property is forfeited to the Commonwealth, unless it is excluded from forfeiture under s 94, at the end of either a six month period starting on the conviction day or an extended period fixed by the court, which must end no later than 15 months from the start of the conviction day, under s 93(1) of the POC Act. In the present case, the conviction date was 20 March 2015. It can be noted here that the initial forfeiture date was eventually extended to 19 May 2016.

By notice of motion filed on 10 August 2015, Mr Dickson applied, under s 94 of the POC Act, to have certain property that was the subject of the 5 April 2012 and 26 April 2012 restraining orders excluded from statutory forfeiture to the Commonwealth that would otherwise occur under s 92 of the POC Act.

Eventually, that application was heard by Adamson J on 2 and 3 May 2016. On 6 May 2016, her Honour concluded that Mr Dickson had failed to make out his claim for exclusion in respect of any of the items identified and accordingly dismissed the relevant part of his notice of motion: Commissioner of the Australian Federal Police v Dickson (No.3) [2016] NSWSC 564.

On 10 June 2016, the Court of Criminal Appeal gave judgment in relation to Mr Dickson’s appeal against conviction and the Crown’s sentence appeal, which had been heard on 11 and 12 February 2016. The conviction appeal was dismissed and the sentence appeal was upheld: Dickson v R [2016] NSWCCA 105. The Court of Criminal Appeal re-sentenced Mr Dickson as follows:

On 30 June 2016, the plaintiff applied to the High Court for special leave to appeal from the Court of Criminal Appeal’s judgment. It can be noted, at this point, that the High Court refused the application on 16 December 2016: Anthony James Dickson v The Queen [2016] HCATrans 307.

On 28 July 2016, Mr Dickson filed a notice of appeal against the decision of Adamson J on 6 May 2016 refusing to make an order excluding certain property from forfeiture under s 94 of the POC Act.

On 4 August 2016, the Commissioner filed a notice of motion seeking a declaration under s 95 of the POC Act as to forfeiture of the restrained property of Mr Dickson. On that day, Bellew J declared that the relevant property had been forfeited to the Commonwealth at midnight on 19 May 2016.

On 2 November 2016, the Commissioner filed a notice of motion seeking summary dismissal of Mr Dickson’s appeal against the decision of Adamson J on 6 May 2016 refusing to make an order under s 94 excluding certain property from forfeiture.

Mr Dickson filed an amended notice of appeal on 27 February 2017 and, by notice of motion filed in the appeal on 6 March 2017, he also sought a stay of the judgment of Adamson J, leave to adduce further evidence and leave to serve a notice to produce. In the amended notice of appeal of 27 February 2017, ground 17D was in the following terms:

The orders sought in that amended notice of appeal included the following:

Mr Dickson filed an outline of the appellant’s written submissions on 27 February 2017. That outline included approximately three pages under the heading “Fraud on the Court”. In those pages, Mr Dickson submitted that, among other things, in the context of s 18 of the POC Act it was particularly important that the Commissioner’s barristers and solicitors were honest and diligent (including disclosure of all relevant issues of law and fact affecting the application). It was also submitted that it was clear that the evidence available at the time of applying for the s 18 restraining orders was incapable of satisfying the elements of s 18. It was then contended:

On 15 June 2017, Mr Dickson forwarded to the Commissioner further submissions on the issue of “Fraud on the Court by the Commissioner of the AFP and his Counsel” consisting of 22 pages. Section III of this document purports to provide a precise outline of the alleged fraud and contained the following:

The matters listed in paragraphs (a) to (v) included:

It was then submitted:

In addition, in this same document, there was a section headed “Fraud on the Supreme Court by Abuse of Process” which contained, among other things, the following submission:

By his third amended notice of motion filed on 28 June 2017, the Commissioner sought summary dismissal of all of the grounds of appeal then raised.

On 29 July 2017, Mr Dickson provided reply submissions which included a further eight pages of submissions as to why there had been “Fraud on the Supreme Court”. At the outset, it is submitted that:

The reply submissions then went on to provide details of the omissions from the affidavit of Mr Sandon, omissions from Mr Wills-Johnson’s statement of facts and submissions contained in counsel’s submissions, which are all said, in effect, to be materially dishonest and to have materially misled the Court. It was also submitted that counsel for the Commissioner should have made the submissions listed in paragraphs 1 to 20 on pages 9 and 10 of that document and counsel’s failure to do so constituted fraud by omission.

That motion came before the Court of Appeal for hearing on 1 August 2017. As Mr Dickson was self-represented, an amicus curiae was appointed to assist the Court. The Court reserved its decision on that day.

By a notice of motion dated 20 November 2017 in the appeal against his conviction in the Court of Criminal Appeal, the plaintiff sought in effect to raise a further 30 grounds of appeal against conviction, and 13 grounds of appeal against the sentence originally imposed by the Court at first instance. Extensive submissions and an affidavit from Mr Dickson (which went principally to the issue of delay in seeking to bring further grounds of appeal) accompanied the motion. The matter was dealt with on the papers and, on 27 August 2018, the Court of Criminal Appeal dismissed the application on the basis that the court had no jurisdiction to deal with it: Dickson v R (No 2) [2018] NSWCCA 183.

In late 2017 and before the Court of Appeal handed down judgment in his appeal against the orders of Adamson J on 6 August 2016, Mr Dickson sought, under section 40 of the Judiciary Act 1903 (Cth), removal of the appeal to the High Court in that it raised the constitutional arguments including whether the Supreme Court had jurisdiction to determine whether there was unpaid federal tax. This application was refused on 7 February 2018: Dickson v Commissioner of the Australian Federal Police [2018] HCASL 5.

On 30 April 2018, the Court of Appeal handed down judgment in the appeal against the orders of Adamson J on 6 May 2016: AD v Commissioner of the Australian Federal Police (2018) 97 NSWLR 588; [2018] NSWCA 89. The following orders were made:

In the judgment, Beazley P (Meagher and Gleeson JJA agreeing) identified and classified the grounds of appeal relied upon by Mr Dickson as follows, at [9]:

In relation to the third issue whether there had been fraud in obtaining the restraining orders, Beazley P held at [113]-[114]:

On 10 September 2018, Mr Dickson made an application to the Court of Criminal Appeal to have it set aside its judgment of 27 August 2018 and consequently re-open the appeal disposed of by its earlier judgment of 10 June 2016. This application was dealt with on the papers and was dismissed on 26 October 2018: Dickson v R (No 3) [2018] NSWCCA 242.

On 11 September 2018, Mr Dickson filed the statement of claim which is the subject of the present applications for strike out and dismissal.

On 12 June 2019, the High Court refused special leave to appeal from the latter two decisions of the Court of Criminal Appeal: Dickson v The Queen [2019] HCASL 187.

I now turn to address the Commissioner’s application under UCPR r 14.28(1)(a) and (c) to strike out the statement of claim and to dismiss the proceedings under r 13.4(1)(b) and (c).

As explained above, both the Commissioner’s notice of motion and the application for leave to institute proceedings under the Felons Act effectively turn on whether the statement of claim discloses a reasonable cause of action and whether the proceedings are an abuse of process.

In relation to whether Mr Dickson had established that there was a “reasonable cause of action” entitling him to have the Court set aside its own perfected orders on the ground of fraud, the Commissioner relied upon the principles stated in Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12; 92 ALJR 399 (Clone) and Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (Wentworth v Rogers).

In particular, it was submitted that:

In these circumstances, it was submitted that Mr Dickson’s claim was so obviously untenable as to engage the Court’s power of summary dismissal. It was said that the deficiencies could not be cured by amendment or further particulars, because Mr Dickson’s claim inescapably involved re-litigation of the substance of the earlier proceedings rather than a concrete identification of any actual fraud.

In the alternative to dismissal of the proceedings under r 13.4, it was submitted that the statement of claim should be struck out under r 14.28 on the bases set out above and on the basis that it was not properly framed as a pleading of material facts but included content in the nature of argument, open-ended or rhetorical questions and irrelevant comments.

In relation to whether the proceedings were an abuse of process, the Commissioner submitted that the concept of “abuse of process” in rr 13.4 and 14.28, was broad and incapable of exhaustive definition but included re-litigation of matters that have already been determined, or which should have been determined, in prior proceedings, relying upon Rippon v Chilcotin (2001) 53 NSWLR 198 at [15], [28] [30]; [2001] NSWCA 142.

It was submitted that the issue of “fraud on the Court” affecting the restraining orders had been raised in the appeal from the decision of Adamson J on 6 May 2016. The submissions provided by Mr Dickson in the Court of Appeal in relation to that appeal identified the alleged fraud in terms that were “substantially identical” to the pleading of the alleged fraud in the statement of claim in the present proceedings. The Commissioner contended that the Court of Appeal had already determined that:

In all these circumstances and as the material filed in the present proceedings provided nothing further that could amount to cogent support for the allegations of fraud, it was said that the proceedings instituted by the statement of claim were an abuse of process. It was submitted that this was reinforced when regard was had to the applications for reopening subsequently brought in the Court of Appeal and for special leave to appeal to the High Court and the fact that these issues could have been raised in an application under s 42 of the POC Act to revoke the restraining orders.

In the Commissioner’s submissions in reply, in addition to seeking to rebut many of Mr Dickson’s submissions concerning matters referred to above and reiterating earlier submissions, the submission was made that Mr Dickson’s statement of claim ignored the fact that the property that was the subject of the restraining orders had been forfeited the Commonwealth. Thus, the property was no longer restrained and the restraining orders were no longer operative. It was implicit in this submission that the principal relief sought by Mr Dickson was inapposite and would not be granted.

Mr Dickson’s submissions included written submissions filed on 11 September 2018, at the same time as the statement of claim in the present proceedings, as well as written submissions filed on 16 April 2019 responding to the Commissioner’s submissions.

In his 11 September 2018 submissions, Mr Dickson largely repeated, word for word, what he had submitted to the Court of Appeal in the written submissions provided on 15 June 2017, which have been referred to above. These submissions covered many matters not directly relevant to the present summary judgment and strike out application.

Most relevantly, these submissions included that the Commissioner and his legal counsel committed serious fraud on the Supreme Court in their applications for restraining orders under s 18 of the POC Act because the basis of both the alleged “serious offences” relied upon was “underpaid Australian income tax” and there was no evidence or circumstance to establish that there were reasonable grounds to suspect that Mr Dickson had “underpaid Australian income tax or foreign income tax”.

In this regard, Mr Dickson pointed to the absence of amended assessments issued by the ATO, the absence of a tax counsel’s opinion, the absence of an expert valuer’s opinion and the absence of a commercial lawyer’s opinion. These absences were said to establish that there was nothing to support a conclusion that there was unpaid tax. On this basis, it was contended that the case theory document which formed part of the statement of facts relied upon in the s 18 applications failed to demonstrate reasonable grounds to suspect underpaid income tax. It was then said that the Commissioner’s counsel had clearly submitted to the Court that there were reasonable grounds to suspect underpaid income tax. Consequently, the restraining orders were granted relying on the dishonest statements of the AFP policeman and the dishonest statements of counsel. These submissions, in a different form but to the same effect, were repeated later in the 11 September 2018 submissions.

It was then contended that the restraining orders under s 18 of the POC Act obtained by fraud in this way were invalid ab initio and, in addition, the subsequent s 92 automatic forfeitures, which were dependent upon the restraining orders, were also ineffectual.

Mr Dickson submitted that his not seeking revocation of the restraining orders under s 42 or exclusion of property from those orders under s 29 of the POC Act did not impact on the consequences of the Commissioner’s and his counsel’s fraud in obtaining the original s 18 restraining orders because of matters which can be adequately summarised for present purposes as follows:

In relation to the ex parte applications for restraining orders, Mr Dickson also drew attention to the obligation of candour referred to in Thomas A Edison Limited v Bullock (1912) 15 CLR 679; [1912] HCA 72 and other authorities. In addition, his submissions also dealt with the nature of fraud and what was required in order for orders to be set aside:

Mr Dickson’s submissions included what were described as “Particulars of fraud” in par 74(a) to (v) but these were the same as the material in Section III of the submissions to the Court of Appeal provided on 15 June 2017.

The submissions also included specific identification of the basis upon which Mr Dickson contended that the AFP agents and the Commissioner’s counsel during the s 18 restraining order applications “knew that their representations were false” as follows:

Mr Dickson also submitted that in order to establish the requisite fraud it was sufficient that the representations were made recklessly not knowing whether the representations were true or not and recklessness was relied upon in the alternative to actual knowledge of falsity.

Mr Dickson’s submissions acknowledged that he had raised this question of fraud in the Court of Appeal but submitted:

He went on to submit in effect that procedural fairness or natural justice required the court to consider his “strongly argued submissions” in this regard and it was observed that neither the Supreme Court nor the Court of Appeal had considered the merits of his statement of claim relating to the alleged fraud on the Court by the Commissioner. Thus it was submitted that his statement of claim needed to be considered by the court in the interests of justice.

As to whether the restraining order should be declared to be void ab initio on the ground of abuse of process, Mr Dickson once again repeated word for word the submissions he had made to the Court of Appeal earlier. These submissions identified the abuse of process as “the fraud, dishonesty, deception, deceit, partiality of the Commissioner’s police officers and their legal counsel representing the Commissioner in the s 18 ex parte applications” because it brought the Court’s processes into disrepute.

In his reply submissions filed on 16 April 2019 Mr Dickson submitted that:

Mr Dickson’s oral submissions largely covered matters found in his written submissions. In addition, Mr Dickson:

UCPR r 13.4 empowers the Court to dismiss proceedings in certain circumstances without conducting a substantive hearing on the merits. The rule relevantly provides:

Similarly, UCPR r 14.28 confers on the Court a discretion to strike out a pleading in circumstances akin to those in r 13.4(1)(b) and (c). Rule 14.28 relevantly states:

It was not in dispute that the Court should approach the Commissioner’s application in accordance with the well-established principles which have been summarised by the High Court in cases such as Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 (Spencer), General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130 (Barwick CJ); [1964] HCA 69 and Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 (Dixon J); [1949] HCA 1. In Spencer, French CJ and Gummow J said at [24]:

In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71, Macfarlan JA (Beazley P agreeing) noted that Spencer had concerned the application of s 31A(2) of the Federal Court Act 1976 (Cth), which is in somewhat different terms from rr 13.4 and 14.28 of the UCPR, but observed that the following principles derived from that case are of general application (at [3]):

The principles can be adequately encapsulated in the proposition that, before proceedings can be summarily dismissed under a provision such as UCPR r 13.4(1)(b) on the ground that no reasonable cause of action is disclosed, the Court must have formed a certain and concluded determination that the proceedings would necessarily fail: Spencer at [59] (Hayne, Crennan, Kiefel and Bell JJ); Ke Qin Ren v Hong Jiang [2014] NSWCA 388 at [49] (Barrett, Gleeson and Leeming JJA).

As to dismissal under r 13.4(1)(c), on the ground of abuse of process, the varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement: UBS AG v Tyne [2018] HCA 45 (UBS) at [1] (Kiefel CJ, Bell and Keane JJ), [61] (Gageler J agreeing); 92 ALJR 968.

An abuse of process may arise in various situations including where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute: UBS at [1], [72].

More concrete examples of where an abuse of process may arise include:

Determining whether conduct amounts to an abuse of process requires the Court to make a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the Court by seeking to raise before it issues which could have been raised before: UBS at [7], citing Johnson v Gore Wood & Co [2002] 2 AC 1 at 31. In this context, the overriding purpose of the UCPR set out in s 56 of the Civil Procedure Act 2005 (NSW) is relevant as an indication of the wider public interest that must be taken into account: UBS at [38] and [66]ff.

In the context of an abuse of process said to arise out of the bringing of successive proceedings, it is preferable in weighing the private and public interests involved to eschew the extremes of private "oppression" and of public "disrepute" and to recognise the relevant public interest as the timely and efficient administration of civil justice: UBS at [72].

Further, an abuse of process based upon attempting to raise issues in successive proceedings, or in later proceedings when they could have been raised in earlier proceedings, may be found even in a case where the claims sought to be litigated are arguable, the defendant has not been called upon to defend them, and delay has not made their fair trial impossible: UBS at [41], [44], [59] and [61].

In my view, the proceedings should be dismissed on a number of bases, taken alone and in combination. These bases also provide grounds why leave to institute the proceedings under the Felons Act should be refused.

First, it was fundamental to Mr Dickson’s case that the s 18 restraining orders of 5 April 2012 and 26 April 2012 were void ab initio. This provided the foundation for his submission that the subsequent s 92 automatic forfeitures, which were dependent upon the restraining orders, were also “ineffectual”.

The flaw in Mr Dickson’s case in this regard is that, even if the restraining orders of 5 April 2012 and 26 April 2012 were obtained by fraud or by an abuse of process, they were not void, ab initio or as at 19 May 2016, when forfeiture of the restrained property occurred.

It is established by the highest authority that judicial orders of superior courts of record, such as this Court, are valid until they are set aside, even if they are made in excess of jurisdiction: State of NSW v Kable (2013) 252 CLR 118 at [32] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), [56] (Gageler J); [2013] HCA 26; Cameron v Cole (1944) 68 CLR 571 at 590 (Rich J, Latham CJ agreeing at 585), 598 (McTiernan J) and 606 (Williams J); [1944] HCA 5.

The restraining orders under s 18 of the POC Act are judicial orders of the Supreme Court and are, therefore, valid until set aside. Even if liable to be set aside on the ground that they were obtained by fraud, they had not been avoided on the relevant forfeiture date. As a result, it would not avail Mr Dickson if he sought to amend, to seek to have the restraining orders set aside now rather than being declared void ab initio. The restraining orders have no present relevance. Their prior relevance was to provide the foundation for the forfeiture of the property in question under s 92 of the POC Act in 2016. That section relevantly provides:

The “conviction day” was 20 March 2015 and extension orders were made under s 93 so that the period at the end of which the property the subject of the restraining orders would be forfeited expired on 19 May 2016. At that time:

Thus, s 92 operated to forfeit the restrained property at that time. This was confirmed by the declaration of forfeiture, made by Bellew J under s 95 of the POC Act on 4 August 2016, that the relevant property had been forfeited to the Commonwealth at midnight on 19 May 2016. Mr Dickson has not sought to challenge the forfeiture declaration of 4 August 2016 and there does not appear to be a basis upon which such a challenge could properly be mounted.

Since the property the subject of those orders has already been forfeited under s 92 of the POC Act, the restraining orders are, in effect, spent, and have been spent since the forfeiture of the property at midnight on 19 May 2016. Mr Dickson’s claims for declaratory relief in the present case serve no useful forensic purpose and the declarations would not be granted. In all the circumstances, use of the Court's procedures to bring the claims for declaratory relief would occasion unjustifiable oppression to the Commissioner and can be seen as bringing the administration of justice into disrepute. On this basis, Mr Dickson’s proceedings seeking declaratory relief can also be seen as an abuse of process.

Thus, the proceedings relating to the claims for relief in prayers 1, 2 and 3, are bound to fail and are an abuse of process. To that extent, having regard to s 5 of the Felons Act, leave to institute the proceedings under s 4 of that Act should be refused. Even if leave were not required, the proceedings in relation to those claims for relief would be liable to be dismissed under UCPR r 13.4(1).

Secondly, Mr Dickson’s reliance on fraud as a basis for the relief claimed is ill-founded in the present case.

In order to enliven the Court’s power to set aside a perfected judgment or order, such as the restraining orders in the present case, on the ground of fraud, “actual fraud” must be established: Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12 (Clone) at [2], [55], [62] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ); Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538. This was said to reflect the interest in finality in litigation: Clone at [69].

The High Court also observed that where it was sought to set aside a perfected judgment or order on the ground of fraud, it was appropriate to proceed by way of independent proceedings so as to permit the whole issue to be properly defined, fought out and determined: Clone at [32]. This is what Mr Dickson has sought to do in the present proceedings. It should be noted, however, that properly defining the issue of fraud involves it being distinctly pleaded and with particularity: UCPR r 15.3; Clone at [62]; Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 573; [1995] HCA 68. Where a condition of mind, such as a fraudulent intention, is alleged as part of the fraud, this must also be properly particularised: UCPR r 15.4.

The High Court in Clone at [55] held that “actual fraud” in this context involved “acting in order to take an undue advantage of some other person for the purpose of actually and knowingly defrauding him”, as stated in Patch v Ward (1867) 3 LR Ch App 203 (Patch) at 207, and, as held in Patch at 212-3:

A lack of frankness does not suffice: Clone at [57] quoting The Ampthill Peerage [1977] AC 547 at 571 and 591.

In Clone (at [33]), the conduct complained of was that Clone:

These circumstances, including omitting to inform the Court and the other party of certain information and prosecuting a case on a false premise, were held not to be sufficient to give rise to the Court’s power to set aside a perfected judgment or order on the basis of fraud: Clone at [62].

Accordingly, in order properly to plead and particularise the fraud alleged fraud sufficient to provide a basis for setting aside the restraining orders, Mr Dickson had to identify each person who allegedly engaged in a meditated and intentional contrivance to keep the Court in ignorance of the real facts of the case, what the contrivance was, what the real facts of the case were and how the contrivance was alleged to be meditated and intentional.

The relevant section of the statement of claim is “Section IV” which is also headed “The Fraudulent Acts and Omissions” which consists of pars 38 to 70. These allegations are, in very large measure, exactly the same as the written submissions of 29 July 2017 in relation to fraud which Mr Dickson made to the Court of Appeal and which have been referred to above.

Paragraph 38 of the statement of claim alleges that the fraud was engaged in by:

Paragraphs 39 to 70 purport to provide particulars of those allegations.

The pleading concerning Mr Sandon’s affidavit: The affidavit of the AFP officer, Mr Sandon, sworn 4 April 2012 is dealt with in pars 40 to 49 of the statement of claim as follows:

In relation to Mr Sandon’s affidavit, there is no specific allegation in pars 40 to 49 that:

The 11 matters said to have been omitted from Mr Sandon’s affidavit do not, by their nature or content, provide any basis for alleging that their omission was meditated or intentional and contrived so as to mislead the Court as to issues in the proceedings for restraining orders.

The pleading concerning Mr Wills-Johnson’s statement of facts: The “‘Executive Summary’ and ‘Case Theory’ (37 pages) prepared by Federal Agent Ben Wills-Johnson” (which appears to be a reference to the statement of facts referred to by Mr Sandon in his affidavit and relied upon by him) is dealt with in pars 50 to 57 as follows:

Once again, in relation to Mr Wills-Johnson’s statement of facts, there is no specific allegation in pars 50 to 57 that:

It should also be observed that the allegation in par 57 that the document “deliberately and deceitfully” did not contain certain matters is unsupported by any allegations of material facts or any particulars. The matters listed in subpars 1. to 9. of par 57 are largely observational or argumentative and, of themselves, provide no support for the allegation that they were deliberately and deceitfully omitted. Nothing pleaded or particularised supports the proposition that Mr Wills-Johnson engaged in conduct with fraudulent intent to mislead the Court as to any relevant matter in issue on the application for restraining orders.

The pleading concerning Mr Sullivan QC’s and Mr Hassall’s submissions and their acceptance by the Court: The structure of this part of the pleading is as follows:

At par 58, Mr Dickson quotes a portion of counsel’s written submissions to the effect that for the reasons given in Mr Sandon’s affidavit, his suspicions were “reasonable”, within the meaning of s 18(1)(f) of the POC Act. In par 59, it is alleged that, “[h]aving regard to the matters outlined above”, which appears to be a reference to the allegations concerning Mr Sandon’s affidavit and Mr Wills-Johnson’s statement of facts in pars 40 to 57 of the statement of claim;

Paragraph 60 contains a quotation from written submission to the same effect as set out in par 58. It is then simply alleged in par 60 “Counsel’s representation is fraudulent”.

There is no specific allegation in pars 58, 59 or 60 or elsewhere that:

The “omissions of the underlying affidavit” set out in par 49 (1.-11.) have been summarised above. The list of 18 matters following par 70 was:

It appears to me to be fair to characterise most, if not all, of these matters as submissions that Mr Dickson might have made in an application to revoke the restraining order under s 42 of the POC Act, if such an application had been made. Many concern Mr Dickson’s understanding of the operation and effect of the relevant taxation legislation and background facts relating to the operations of NHA.

Neither the “omissions of the underlying affidavit” nor the matters set out in the list of 18 matters after par 70, which it is alleged counsel should have included in their submissions, themselves provide any support for allegations that:

There is simply no basis pleaded or particularised which would provide any legitimate support for the allegation that counsel’s submissions were “a blatant deceitful submission” or were, in either case, “fraudulent”. Nor do the circumstances established before the Court on the present applications reveal any basis for making such serious allegations.

Failure by the Commissioner or his counsel to make the submissions in the list of 18 matters after par 70 or to raise the other matters referred to in pars 49 and 57 of the statement of claim does not, in my view, involve any lack of frankness. But, even if that view is wrong, such a lack of frankness would not amount to “actual fraud” as required by the principles in Clone.

Conclusion on the pleading of fraud and the application of Clone: Having regard to the pleading relied upon by Mr Dickson, as analysed above, and the circumstances disclosed in the material before the Court on the present application, the allegations of fraud made by Mr Dickson are without foundation.

Moreover, to the extent that any relevant omissions occurred, as alleged, and were material, they do not amount to “actual fraud” and would not be sufficient to bring the matter within the principles set out in Clone so as to justify the granting of the relief sought by Mr Dickson.

I am satisfied that the deficiencies could not be cured by amendment of the pleading.

I am confirmed in these views by the fact that the Court of Appeal considered the same material as is contained in pars 38 to 70 of the statement of claim (with only very minor and insignificant differences) when that Court dealt with the submissions concerning fraud in pp 2-10 of Mr Dickson’s reply submissions dated 29 July 2017. In AD v Commissioner of the Australian Federal Police (2018) 97 NSWLR 588; [2018] NSWCA 89, Beazley P (Meagher and Gleeson JJA agreeing) said at [114] that the contention that the restraining orders had been obtained by fraud was:

That conclusion is directly applicable to the case as pleaded by Mr Dickson in his statement of claim which is in essentially the same terms as the material then before the Court of Appeal.

In addition, indirect support for the conclusion that Mr Sandon’s suspicions that Mr Dickson and his co-accused had committed the two serious offences were, in fact, reasonable and that there is no basis to infer that the Court was misled in that regard can also be found in the fact that Mr Dickson was eventually convicted of the tax fraud offence and the money laundering offence, and his appeal against conviction was unsuccessful.

Accordingly, in my view, Mr Dickson’s claims based on the restraining orders of 5 April and 26 April 2012 having been obtained by fraud, as alleged in the statement of claim, are bound to fail. In these circumstances, the proceedings should be summarily dismissed and it would also be an abuse of process to allow the matter to proceed. Leave under the Felons Act should be refused.

Thirdly, the principles in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (Wentworth) concerning setting aside judgments or orders on the ground of fraud do not assist Mr Dickson. The principles derived from that case can be relevantly summarised as follows:

The matters pleaded in Mr Dickson’s statement of claim and the material before the Court do not rise to the level required to engage these principles. There is no discovery of new facts that would be sufficient, alone or with other facts, to justify setting aside the restraining orders. The other principles emphasise the strength of the case required for an applicant to succeed. In all the circumstances, Mr Dickson would necessarily fail in having the restraining orders set aside on the ground of fraud, having regard to these principles in Wentworth.

Fourthly, Mr Dickson had the opportunity on numerous occasions to bring proceedings challenging the restraining orders, which were made almost six and a half years before the present statement of claim was filed. He could have sought revocation of the restraining orders under s 42 of the POC Act, within 28 days of being notified of the orders or within an extended period under s 42(1A)(b). He could have challenged those orders on the ground of fraud when, in August 2015, he applied, under s 94 of the POC Act, to have his restrained property excluded from statutory forfeiture under s 92 of the POC Act. He could have sought to have the restraining orders set aside on the ground of fraud at any time before the restrained property was forfeited under s 92.

The fact that he bore the onus of proof in an application under s 42, the strictness of the 28 day time limit in that section, the fact that his property was restrained, the refusal of the Commissioner to provide copies of seized documents or counsel’s submissions and his perception that he would have needed to sacrifice his “right to silence” in his subsequent criminal trial do not, in my view, establish that it was impossible for him to have brought earlier proceedings challenging the restraining orders, when that might have served some useful purpose. The background, recounted at some length above, demonstrates that Mr Dickson has not found it impossible to make applications, bring proceedings, lodge appeals and seek special leave to appeal on various occasions relating to the tax fraud and money laundering offences and the related restraining orders.

In these circumstances, I reject Mr Dickson’s submission that it was impossible for him to make a revocation application under s 42 of the POC Act.

If the validity of the restraining orders was to be challenged, it should have been done earlier. In particular, it should have been done before the restrained property was forfeited in May 2016. Seeking to challenge the restraining orders of 5 and 26 April 2012 in late 2018 can properly be characterised as involving unjustifiable oppression to the Commissioner or bringing the administration of justice into disrepute because:

On these bases, the proceedings are an abuse of process. Leave to institute the proceedings should be refused under s 4 of the Felons Act, in light of s 5. The proceedings should, to the extent necessary, be dismissed.

Fifthly, as noted above, in his submissions in reply Mr Dickson identified five matters which he said had not been disclosed on the s 18 ex parte applications which established that the restraining orders had been obtained by fraud. When these five matters are compared to the pleaded matters referred set out above, it can be seen that they are not entirely congruent.

The five matters identified in the submissions included the failure to disclose:

In effect, Mr Dickson was submitting that before a restraining order could be made under s 18 in the present case, the Court had to be satisfied that there were reasonable grounds to suspect that income tax was actually underpaid and that failure to bring the five matters relating to underpaid tax to the Court’s attention was fraudulent.

I do not accept that submission.

Section 18(1) of the POC Act requires a court to make a restraining order if:

The offences identified in the application for restraining orders in April 2012 were offences contrary to ss 135.4(3), 400.3(1) and 11.5 of the Code. At the trial, count 1 was for an offence contrary to s 135.4(5), which is a related offence to the offence under s 135.4(3).

Section 135.4(3) provides:

Section 400.3(1) provides:

Section 11.5(1) provides:

It was not in dispute that the offences relied upon were “serious offences” for the purposes of s 18(1)(d).

Mr Sandon was “the *authorised officer who made the affidavit” in the present case. He stated at par 11(a) of his affidavit that he suspected that Mr Dickson and his co-accused:

Mr Sandon set out the grounds on which he based that suspicion in pars 19-23 of his affidavit, which included his reliance on Mr Wills-Johnson’s statement of facts and the statements from Mr Dickson’s brother. Mr Sandon set out his suspicion in more detail at pars 24 and 25.

In the circumstances of the present case, McCallum J and Beech-Jones J were required to be satisfied relevantly under s 18(1)(d) and (f) that:

The offences relied upon in the present case were both conspiracy offences. From their very nature, it was not necessary for the Court or Mr Dickson to be satisfied that there were reasonable grounds to suspect that income tax was underpaid before it could be concluded that the requirements in s 18(1)(d) and (f) had been satisfied.

Furthermore, there is no basis to conclude that Mr Sandon, Mr Wills-Johnson or counsel were aware of these five matters and deliberately withheld them from the Court as part of a meditated and intentional contrivance to keep the Court in ignorance of the real facts of the case.

Thus, even if Mr Dickson were permitted to amend his pleading to allege that the five matters which he said had not been disclosed on the s 18 ex parte applications established that the restraining orders had been obtained by fraud, such a case would be bound to fail for at least two reasons. First, failure to disclose those matters would not amount to “actual fraud”, as explained in Clone. Secondly, those five matters were not matters required to be established before the Court could make restraining orders under s 18 in this matter.

Lastly, it is necessary to consider the relief sought other than the declarations that the restraining orders of 5 and 26 April 2012 were void ab initio. The other relief was limited to the exemplary damages claimed in prayer 4 in the statement of claim. The pleading in relation to this claim for relief was as follows:

It is apparent that Mr Dickson relies on the alleged fraud previously pleaded in support of the claims for declarations that the restraining orders were void ab initio.

The parties’ submissions did not deal separately with this claim for relief and the proceedings were conducted on the basis that the claim for exemplary damages did not add any dimension to the parties’ applications that required separate determination.

For the reasons already given, the claims based on the fraud alleged by Mr Dickson are bound to fail and the deficiencies cannot be cured by amendment. Accordingly, the claim for exemplary damages is also bound to fail. To this extent, the proceedings should be dismissed as failing to disclose a reasonable cause of action and as an abuse of process. Leave to institute proceedings under s 4 of the Felons Act should be refused.

There is, however, another basis upon which this aspect of Mr Dickson’s proceedings should be found not to disclose a reasonable cause of action and to be an abuse of process. The parties did not raise this issue and it is not necessary to decide the present applications on this basis. Nonetheless, it should be mentioned for the sake of completeness.

The alleged fraud, upon which the claim for exemplary damages was founded, was said, at par 38 of the statement of claim, to be constituted by a witness for the Commissioner making dishonest statements in his affidavits and omitting material facts and the Commissioner’s counsel deliberately omitting material facts from submissions, permitting witnesses to mislead the court and representing to the court that the affidavit contained all detail sufficient to enable the court to grant the s 18 restraining orders.

It is a well-established principle that no action, such as an action for damages, lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts: Cabassi v Vila (1940) 64 CLR 130 at 140-141 (Starke J); [1940] HCA 41. This proposition was recently confirmed by the High Court in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 (“D'Orta-Ekenaike”), when Gleeson CJ, Gummow, Hayne And Heydon JJ held at [39]:

As these authorities make clear, the immunity extends not only to witnesses but also to counsel appearing in proceedings and to parties. In D'Orta-Ekenaike at [42], the High Court quoted a dictum of Lord Mansfield in 1772 and said:

The Commissioner has not yet been required to file a defence. As a result, he has not had the opportunity of pleading the immunity. It cannot seriously be disputed, however, given the nature of the Commissioner’s application presently before the Court and his submissions, that the Commissioner would plead the immunity if the opportunity arose. Raising the immunity as a defence has the consequence that Mr Dickson’s claim for damages could not succeed.

Accordingly, if the immunity were pleaded, Mr Dickson’s proceedings would necessarily fail in respect of the claim for exemplary damages. This would provide a further basis for the proceedings relating to the claim for exemplary damages to be summarily dismissed under UCPR r 13.4(1) and for leave to institute the proceedings under s 4 of the Felons Act to be refused in respect of the claim for exemplary damages.

For all of these reasons, leave to institute the proceedings should be refused and, to the extent that the proceedings are on foot in that they have been the subject of the dismissal and strike out applications, the proceedings should be dismissed.

In these circumstances, Mr Dickson’s application for summary judgment cannot succeed and should be dismissed.

There is no evident reason why costs should not follow the event, as sought by the Commissioner, on all applications.

The orders of the Court are: