Doogue + George are experts in anti-money laundering law, confiscation matters, and proceeds of crime legislation. We have been involved in various AML cases and acted in behalf of clients facing property forfeitures and restraining orders.
Doogue + George held the second instalment of its AML webinars last Tuesday, 19 November 2024, with the topic "Restraining Orders First Conference". It was hosted by Doogue + George Confiscation and Proceeds of Crime Partner Amelia Ramsay, who introduced Christian Juebner KC, commercial barrister. Christian went on to deliver a discussion on the primary issues that lawyers must address during the first conference with a client facing property restraining orders.
The webinar focussed mainly on 4 major topics: (1) identifying the interests of persons in restraining properties; (2) identifying timeframes within which positive steps must be taken to protect the properties; (3) identifying documents that need to be furnished to deal with matters such as property interest declarations and exclusion applications; and (4) identifying issues that require sound decisions such as levying expense applications, variation applications, funding and legal aid, as well as getting money in trust for your barrister and solicitor.
Christian cited common errors when identifying the interests of persons in restraining properties which tend to happen with family homes, whether jointly registered or where only one of the spouses is registered. Errors also arise when determining who should make exclusion applications when assets are owned by companies.
It was noted that identifying the interests of persons in restrained properties is very fact-dependent. Therefore, it is crucial during the first conference to get a clear picture of the financial contributions people have made and to ascertain their true intentions regarding their beneficial interest in the properties.
Key timeframes were discussed and start from the day notice of the restraining order was given or from the day the restraining order was made. It was pointed out that apart from the standard periods of time within which certain applications must be made, one may actually apply for an extension of time provided it is made prior to the occurrence of an automatic forfeiture. It was also critical information to know that there is a distinction on when automatic forfeitures occur under the Confiscation Act of Victoria vs when they are under the Proceeds of Crime Act of the Commonwealth.
Exceptions also exist such as when unexplained wealth restraining orders are involved.
The webinar also talked about whether one should seek a stay, especially when the person facing a restraining order is also accused of a serious crime – i.e. it would be undesirable for that person to be making affidavits thereby exposing themselves to cross-examination, at least until the criminal matter is over. Further, it was noted that Proceeds of Crime authorities differ in their approach to stay applications under different legislations.
Potential conflicts can also arise between solicitors and concurrent clients and Christian talked about the rules that apply to these specific circumstances.
Important documents that need to be prepared were enumerated during the webinar. These include the full copy of the restraining order, affidavit of support, exhibits, property interest declarations, bank statements, financial statements, tax returns, trust deeds, and more. Forensic reports also need to be provided and there was a discussion on how to make these reports admissible.
If you missed our second AML webinar, you can still watch its replay below. Videos of all our AML webinars are available on our YouTube channel and can also be found here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
