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Queensland Judgments
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  • Unreported Judgment

Commissioner of The Australian Federal Police v Kanjo & Ors

 

[2019] QDC 168

DISTRICT COURT OF QUEENSLAND

CITATION:

Commissioner of The Australian Federal Police v Kanjo & Ors [2019] QDC 168

PARTIES:

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

(applicant)

v

NICOLE ANNE KANJO

(first respondent)

and

FAIRGRANGE HEALTH SERVICES PTY LTD

(ACN 162 296 380)

(second respondent)

and

SAM KANJO

(third respondent)

FILE NO/S:

BD937/2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

5 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2019 (On the Papers)

JUDGE:

Horneman-Wren SC, DCJ

ORDER:

Application dismissed

CATCHWORDS:

APPLICATION ON THE PAPERS – UNIFORM CIVIL PROCEDURE RULES – Where applicant seeks relief under Proceeds of Crime Act 2002 (Cth) – where application does not satisfy the rules pursuant to Uniform Civil Procedure Rules 1999 – where application is dismissed due to incompetence

SOLICITORS:

Brisbane Criminal Lawyers for the applicant first and third respondents.

  1. [1]
    Brisbane Criminal Lawyers are the solicitors on the record for both the first and third respondents in a proceeding brought by the Commissioner of the Australian Federal Police in which relief is sought pursuant to the Proceeds of Crime Act 2002 (Cth).  On 1 August 2019, Brisbane Criminal Lawyers filed, or purported to file, the following:
  1. (a)
    an application;
  1. (b)
    an affidavit of Bruce Peters, a solicitor of the firm, Brisbane Criminal Lawyers;
  1. (c)
    submissions in support of the application;
  1. (d)
    a draft order; and
  1. (f)
    a notice of withdrawal of solicitors.
  1. [2]
    The application is incompetent and must be dismissed.
  1. [3]
    The application is deficient in a number of respects, most notably in that it fails to specify any orders sought. It thus fails to comply with r 26(5) of the Uniform Civil Procedure Rules 1999 (UCPR).  That what is sought is leave under r 990 of the UCPR to withdraw from the proceeding may be gleaned from the other documents filed; but it should be specified in the application.
  1. [4]
    The application states a proposal that it be decided without an oral hearing as permitted by r 489. However, no notice in the approved form was included in the application as required by r 490(1)(b).[1] The parties upon whom it was served would thus not be informed, as they are required to be, of the steps which they may take.
  1. [5]
    The application identifies that the only person upon whom the application is to be served is “AFP by email”. Thus it can be seen that the application was not intended to be served upon those persons most immediately affected by it: the first and third respondents.
  1. [6]
    The submissions filed refer to facts not deposed to by Mr Peters in his affidavit in support. There is no evidence of the solicitor having taken the mandatory step of giving written notice of intention to apply for leave to withdraw to the clients as required by r 990(1). From what is deposed to, the obvious inference is that notice has not been given. Mr Peters deposed to providing a form 92 notice for his clients to sign and their having refused to do so.  That, however, is not compliance with r 990.
  1. [7]
    The draft order purports to be a consent order under r 666. Clearly it is not.
  1. [8]
    The notice of withdrawal of solicitors purports to have been filed pursuant to r 991(3), leave to withdraw having been given by the court. Of course, leave has not been given. That is the purpose of the application.
  1. [9]
    For all these reasons the application must be dismissed.
  1. [10]
    It is regrettable that the numerous manifest errors in procedure are such as to require the court to publish reasons explaining them to a practising solicitor. To have to do so unnecessarily consumes the court’s valuable time, and to a far greater extent than the estimated five minutes set out in the application.

Footnotes

[1]It is to be noted that the registrar set the date for hearing as the second business day following the filing of the application and thus did not comply with r 490(2) which requires the registrar to set a date for deciding the application which is at least 10 days after the application is expected to be served on the respondent.  However, because the application is otherwise so non-compliant with the rules it should be dismissed at this time notwithstanding the registrar’s failure to comply with r 490(2).

Close

Editorial Notes

  • Published Case Name:

    Commissioner of The Australian Federal Police v Kanjo & Ors

  • Shortened Case Name:

    Commissioner of The Australian Federal Police v Kanjo & Ors

  • MNC:

    [2019] QDC 168

  • Court:

    QDC

  • Judge(s):

    Horneman-Wren SC

  • Date:

    05 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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