Author: Nyman Gibson Miralis
Subject: Freezing Orders
Keywords: transnational freezing order, worldwide order, foreign and domestic assets, Civil Trials Bench Book
What is a freezing order?
A freezing order specifically targets bank accounts, and has the effect of preventing a person from accessing funds held in a bank account, so that the Court process is not interfered with.
A prosecutor or AFP federal agent will apply in person to a magistrate for a freezing order, accompanied by a supporting affidavit that sets out the particulars of the suspicion that the funds in an account are the proceeds of crime.
What is a transnational freezing order?
In its Civil Trials Bench Book, the Judicial Commission of NSW states that a freezing order is transnational if it relates to:
(a) foreign assets where the order is to support enforcement of a domestic judgment or prospective judgment even before the commencement of substantive proceedings (commonly called a worldwide order); or
(b) domestic assets where the order is to support enforcement of a foreign judgment or prospective judgment even before the commencement of substantive foreign proceedings.
Transnational freezing orders typically apply in cases that involve multinational corporations and transnational business activity, where people and assets can be moved between nations.
What specific considerations apply to transnational freezing orders?
According to the Civil Trials Bench Book, where transnational elements are present in an application it is necessary to address three questions:
- Whether the court has personal jurisdiction over the respondent.
- If so, whether there is jurisdiction to make a freezing order.
- If so, whether there are difficulties of conflict of laws, comity, enforceability or other relevant matters which affect the discretion whether to make the order or the form of the order.
What specific considerations apply to worldwide orders?
As stated above, transnational freezing orders that relate to foreign assets are commonly referred to as ‘worldwide orders’.
Applying for this type of freezing order is seen as a serious step. The applicant is required not to enforce the order without the permission of the court.
Worldwide freezing orders impose no liability on third parties, such as banks, outside Australia (except third parties who are directors, officers, employees and agents of the respondent to the application) and are not subject to the jurisdiction of the court.
Nyman Gibson Miralis specialise in all aspects of freezing orders and asset forfeiture law. If you require assistance, contact one of our expert criminal defence lawyers.