Asset Confiscation - Understanding the paperwork
Understanding the form 4 Summons and Form 1 Interlocutory Application
Being served with legal documents and being told that the DPP want to take your property (house, car, boat, jewellery etc) can be a very stressful experience. Understanding the paperwork can be difficult. We have tried to explain in plain English what the documents say. Please feel free to call us and we will be happy to explain in further detail.
Section 25 of the Criminal Assets Confiscation Act 2005 states that the DPP must give written notice of an application for a restraining order to the owner of the property or any other person the DPP reasonably believes may have an interest in the property.
This notice is given by serving you with a Form 4 Summons seeking orders. Section 25 also states that the DPP must include either an Affidavit supporting the application or a notice stating that a person can request an Affidavit.
An Affidavit is a court document that is like a statement of the evidence the DPP rely upon to justify why a restraining order should be made.
If you have not been served with the Affidavit but simply a notice stating that you can request the Affidavit, and we recommend that you do so. The law states that the DPP must comply with your request as soon as is practicable.
On some occasions the DPP may apply to the court for a restraining order without giving the notices we just spoke about. This would normally occur when the DPP and the court are of the view that if the owner is given notice of the application they will dispose of the property before the matter is dealt with in court.
The documents that the DPP normally serve on a person are:
3. Form 26 Interlocutory application issued pursuant to Rule 131(1) District Court
Understanding the Form 4 Summons
The Form 4 Summons states that if you want to defend the claim then you should file a notice of address for service within 14 days and file an answering Affidavit within 28 days after the service of the Affidavit. It is most important that you treat these dates seriously. Failure to lodge the documents can mean that orders are made without you being there.
We encourage you to seek legal advice from a lawyer who specialises in Criminal Assets Confiscation law as soon as you get the documents.
If you want to defend the claim you need to file in the Court a Notice of Address for service within 14 days. You can download this notice here [create a word document attachment – see Attachment 1]. The law also states that you need to file an answering Affidavit within 28 days. You can download the answering affidavit template here. [create a word document attachment – see Attachment 2]. However, practically you can avoid filing an answering Affidavit if you file an application to exclude assets from the restraining order. This will preserve your position and you will not have to disclose information that may cause prejudice in your criminal proceedings. We strongly recommend that you get solid legal advice when you reach this point.
Anything that you do write in an answering Affidavit can be used against you in the criminal assets confiscation case and also any criminal cases you may have. We recommend that you file an application to exclude assets from the restraining order instead.
The form 4 Summons states that the summons was issued pursuant to section 24 and section 40 of the Criminal Assets Confiscation Act 2005.
Section 24 of the Criminal Assets Confiscation Act 2005 outlines how the court is to deal with applications made by the DPP for a restraining order. Section 24 is explained in detail in the restraining order page of this section.
Section 40 of the Criminal Assets Confiscation Act 2005 states the other orders that either the Magistrates Court or District Court can make. These include: a forfeiture order, a pecuniary penalty order, a literary proceeds order, and other orders that compel people to do certain things. These other orders that the court can make are explained in more detail in our other court orders page of this section.
The summons also refers to rule 34 of the District Court Civil Rules. In a Criminal Assets confiscation case, section 34 simply means that a court case is commenced by filing a summons in the court.
The form 4 Summons also states that the plaintiff (the DPP) undertakes to comply with an order of the court for damages or costs should it be determined that by reason of the restraining order the owners of the restrained property have suffered damages or costs which the DPP should pay. This paragraph does not mean that the DPP will have to compensate the owners of restrained property if they have suffered loss. They are only liable if the court makes an order that they should pay damages or costs. This may apply if the summons filed by the DPP is dismissed.
The form 4 Summons then outlines the orders that the DPP wants.
The first order is generally an order under section 24(1) of the Criminal Assets Confiscation Act 2005 seeking a restraining order of certain property listed. Section 24 is dealt with in detail in the restraining order page of this section.
Other orders the DPP may seek is to make the restraining order subject to a mortgage or an order prohibiting a redraw loan facility.
Understanding the Form 1 Interlocutory Application
The interlocutory application will set out the orders that the DPP will seek. Rule 312 of the District Court Civil Rules 2006 state that the DPP must within 14 days after service of the summons apply for directions of the court as to how the case should proceed.
At the directions hearing the District Court will make directions that the DPP and you must comply with. If the Judge makes a restraining order the matter will be adjourned to the Master’s list and normally there will be a delay of the making of a formal timetable in which to file and serve documents until the Criminal proceedings are resolved.
Normally the other orders that the DPP are seeking will be the same as the orders they have stated in the summons.
About the Author
Casey Isaacs is a specialist in Criminal Assets Confiscation matters and appears in the Magistrates and District Court in Adelaide and each of the circuit courts (Mount Gambia, Berri, Port Pirie, Whyalla, Port Augusta, and Port Lincoln) more than any other lawyer in South Australia. He is a senior criminal lawyer and a Partner at Caldicott Lawyers. He regularly teaches other lawyers about the Criminal Assets Confiscation law and many lawyers refer asset confiscation matters to him. Don’t let his youthful looks deceive you Casey has been specialising in Criminal law and Criminal Assets Confiscation matters for 17 years.
Casey can be contacted on (08) 8120 3778 or after hours on 0412 816 575 or by email at firstname.lastname@example.org.