The High Court has refused an application by two defendants to discharge or vary an order made under the Proceeds of Crime Act 1996, ruling that the grounds they advanced did not give the court power to intervene.
The proceedings began in 1997. An order under section 2 was made on 25 April that year. On 12 May, the court made a section 3 order, initially limited in duration, and deemed service of the related motion on the defendants good and sufficient. The section 3 order was continued without a time limit on 9 June 1997.
In a motion considered by Finnegan P, the defendants sought relief under section 3(3) of the Act or, alternatively, under the court’s inherent jurisdiction. Their solicitor’s affidavit said the first-named defendant had been overseas and had not appeared on either May 12 or June 9. It did not say whether or when that defendant became aware of the proceedings. The judge also noted that the court had been given no information about the first defendant’s case on the merits, and held that the inherent-jurisdiction application could not succeed on that basis.
The defendants argued that the manner in which the section 3 order was obtained constituted an injustice. They did not contend that the property covered by the application was not proceeds of crime. The judgment also recorded an argument that the Act could not apply to assets situated abroad, but held that, outside the routes provided by sections 3(3) and 4, the court was functus officio—its role in the concluded proceedings was finished.
The judge held that section 3(3) allows an order to be revisited where the affected property is not proceeds of crime, or where the order causes another injustice in the circumstances in which it is operating. It was not a route to repeatedly challenge the original basis on which the order was made. The court therefore held it had no power to grant the requested relief under section 3(3), and no inherent jurisdiction to interfere on the grounds advanced.
The motion was refused. The judgment did not determine whether the property was proceeds of crime or decide the merits of the defendants’ arguments about the order’s original making.