Facts
The Commissioner commenced proceedings under the Proceeds of Crime Act 2002 (Cth) (POCA) and obtained restraining orders. One of the defendants made an application for revocation.
After proceedings had been commenced, the Commissioner obtained production orders under s 202 of the POCA directed to third parties. Documents produced in response were property-tracking documents, such as conveyancing and bank records. Only around 50 of over 1,000 documents produced were used by the Commissioner in the proceeding.
One defendant contended that the Commissioner had engaged in a contempt by relying on the s 202 power to obtain production orders after the proceeding was commenced.
Reasons for Judgment
Section 202 of the POCA permits production orders to be obtained after commencement of proceedings, provided it does not interfere with administration of justice. The Commissioner did not use s 202 of the POCA for the sole or dominant purpose of obtaining documents for use in the proceedings. Hence, the use of s 202 of the POCA by the Commissioner did not confer an unfair advantage or disadvantage the fourth defendant so as to amount to contempt. Relevantly, there was no evidence that the fourth defendant would have sought to set aside a subpoena issued by the Commissioner and there was not real difference between a s 202 production order and a subpoena.
