Arundel v The State of Western Australia - [2022] WASCA 89

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ARUNDEL -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 89
CORAM:   BUSS P
BEECH JA

HEARD:   6 MAY 2022
DELIVERED          :   27 JULY 2022
FILE NO/S:   CACV 66 of 2021
BETWEEN:   CLINT BRIAN ARUNDEL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No:   CACV 66 of 2021
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   FLYNN DCJ
File Number            :   CPC 26 of 2020

Catchwords:

Appeal against an interlocutory order - Leave to appeal - Primary judge ordered that the appellant's application to set aside a freezing notice under the Criminal Property Confiscation Act 2000 (WA) be adjourned pending the appellant's trial on criminal charges - Whether leave to appeal should be granted - Turns on own facts

Legislation:

Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr T A Staples

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478
Krishell Pty Ltd v Nilant [2006] WASCA 223; (2006) 32 WAR 540
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285

JUDGMENT OF THE COURT:

The appellant has filed an appeal notice in respect of an interlocutory order made by Flynn DCJ on 4 June 2021 in pending proceedings in the District Court.

The appellant commenced the pending proceedings in the District Court on 25 August 2020 by filing an originating summons pursuant to s 79 of the Criminal Property Confiscation Act 2000 (WA) (the CPC Act). In the originating summons, the appellant is the applicant and the respondent to this appeal (the State) is the respondent.
The pending proceedings in the District Court arose out of a freezing notice issued under the CPC Act on 19 August 2020.
The freezing notice was issued after the appellant was charged with criminal offences. The offences include cultivating 40 cannabis plants with intent to sell or supply, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) and possessing $54,000 reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code. The appellant has pleaded not guilty. His trial in relation to the alleged offences against s 7(1)(a) of the Misuse of Drugs Act and s 417(1) of the Criminal Code has been listed for 20, 21 and 22 September 2022.
The freezing notice issued on 19 August 2020 restrains the appellant from dealing with:
(1)An Isuzu truck.
(2)A Toyota LandCruiser.
(3)A caravan.
(4)$54,000.
(5)All and any property owned by the appellant, or acquired by him after the freezing notice was issued, except for:
(a)Salary and Centrelink payments.
(b)The land at 65 Woodview Way, Barragup.
(c)Three bank accounts.
(d)Plant and equipment belonging to Arundel Earthmoving and Limestone Construction, other than any of the property at (1) ‑ (4) above.
Item (1), the Isuzu truck, was returned to the appellant under a control and management order. The order was made by the District Court under s 91 of the CPC Act on 12 February 2021 with the consent of both parties. Although the Isuzu truck is in the appellant's possession, it remains frozen by the freezing notice. The appellant can use the Isuzu truck, but cannot deal with it, and it remains potentially liable to be confiscated.
All of the items of property have been frozen on the grounds specified in s 34(3) of the CPC Act; namely, that the appellant has been charged with an offence (that is, the alleged cultivation of cannabis plants offence) that could result in him being declared a drug trafficker under s 32A(1) of the Misuse of Drugs Act, if convicted.
Items (1) and (4) have also been frozen on the grounds specified in s 34(2) of the CPC Act; namely, that there are reasonable grounds for suspecting that the property is crime‑used or crime‑derived.
In the pending proceedings in the District Court, the appellant has applied, relevantly, to set aside the freezing notice.
The interlocutory order made by the primary judge on 4 June 2021 which is the subject of the appellant's appeal notice was, relevantly, that:
(a)the appellant's originating summons be adjourned to a date to be fixed; and
(b)the parties have liberty to apply.
At the hearing before his Honour on 4 June 2021, the appellant requested his Honour to make the orders sought in the originating summons filed on 25 August 2020; in particular, an order setting aside the freezing notice. The State requested his Honour to adjourn the hearing of the originating summons until the charged offences against s 7(1)(a) of the Misuse of Drugs Act and s 417(1) of the Criminal Code had been dealt with.
On 4 June 2021, shortly after the hearing on that date was completed, the primary judge gave oral reasons for decision. His Honour recounted the submissions that had been made by the appellant and the submissions that had been made by counsel for the State. His Honour said that there were three broad contentions which the appellant made. First, the appellant contended that there had been non‑compliance with certain provisions of the CPC Act by the State or by the justice of the peace who had issued the freezing notice. The appellant argued that the basis for setting aside a freezing order is not confined to the provisions of pt 6 (headed 'Objection to confiscation') of the CPC Act (ts 76 ‑ 77). Secondly, the appellant contended that there had been an absence of 'due process' in relation to the freezing notice. The appellant argued in effect that there had been bad faith in relation to him and the freezing notice by those involved in the administration of the CPC Act. The appellant had a particular concern as to whether or not the freezing notice in question was lawful in circumstances where, before that freezing notice had been issued, another freezing notice in relation to him had been issued. According to the appellant, those involved in the administration of the CPC Act have a nefarious purpose, directed towards him, that is contrary to law (ts 77 ‑ 78). Thirdly, the appellant advanced a number of arguments by reference to quotations from the Bible (ts 78).
As to the appellant's first contention, his Honour was of the view that, having regard to s 81 of the CPC Act, the only basis upon which the court could set aside a freezing notice following the making of an objection under pt 6 is to be found in the provisions of s 82, s 83 and s 84. His Honour said that the only power of the court in relation to the setting aside of a freezing notice, where the person the subject of the notice has been charged with an offence and the person could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act if he or she is convicted of the offence, is to be found in s 84(2) of the CPC Act. Section 84(2) is not concerned with whether the freezing notice was properly issued. Pursuant to s 84(2), the court may set aside a freezing notice issued for property under s 34(3) if the court finds that it is more likely than not that the person who has been charged with the offence does not own or effectively control the property, and has not at any time given it away (ts 80).
As to the appellant's second contention, the primary judge held that it was not appropriate to deal with that contention with respect to an alleged abuse of process in the context of the appellant's originating summons filed pursuant to s 79 of the CPC Act (ts 78).
As to the appellant's third contention, his Honour said that the Bible is not 'a source of law that's recognised by this court' (ts 78).
The primary judge said that it was not expedient, as at 4 June 2021, to deal with the appellant's objections in relation to so much of the freezing notice as concerns alleged crime‑used or crime‑derived property (ts 80).
His Honour concluded that the appellant's originating summons should be adjourned to a date to be fixed and 'in anticipation of the drugs [charge] being determined at some future date, there will be liberty to apply' (ts 80).
Section 79(1)(a) of the District Court of Western Australia Act 1969 (WA) provides, relevantly, that a party to an action or matter who is dissatisfied with a final judgment, may appeal from that judgment to the Court of Appeal.
By s 79(1)(b) of the District Court of Western Australia Act, relevantly, a party to an action or matter who is dissatisfied with a judgment that is not a final judgment or an order remitting any action or matter from one court to another, may by leave of the Court of Appeal, appeal to the Court of Appeal.
Accordingly, in the present case, the appellant requires the leave of this court to appeal against the interlocutory order.
On 3 February 2022, the appellant filed his appellant's case.
On 6 May 2022, the appeal was listed for a hearing to determine whether leave to appeal should be granted or not. At the conclusion of the hearing, judgment on the application for leave was reserved.
In our opinion, for the following reasons, leave to appeal should be refused and the appeal dismissed.
The Court of Appeal's jurisdiction to hear an appeal in the civil jurisdiction, for which leave to appeal is required, is founded upon the grant of leave. See Wilson v Metaxas.[1] The requirement of leave is not a mere technicality. It serves an important function in the administration of justice; for example, by discouraging unnecessary interlocutory appeals. See Krishell Pty Ltd v Nilant.[2]
[1] Wilson v Metaxas [1989] WAR 285, 294 (Malcolm CJ; Brinsden & Smith JJ agreeing).
[2] Krishell Pty Ltd v Nilant [2006] WASCA 223; (2006) 32 WAR 540 [29] - [30] (Wheeler JA).
It is well established that the Court of Appeal has a broad discretion to grant or refuse leave to appeal in civil proceedings.
Ordinarily, leave to appeal from interlocutory orders will not be granted unless the primary decision is wrong or, at least, attended with sufficient doubt to justify the grant of leave, and, in addition, substantial injustice would be done by leaving the primary decision unreversed. What constitutes substantial injustice will depend upon all of the circumstances of the case. The dual requirements of apparent error in the primary decision and substantial injustice if the primary decision is left unreversed bear upon each other in deciding whether leave to appeal should be granted. See NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[3] Ultimately, however, there are no rigid or exhaustive criteria and leave to appeal will be granted if it is in the interests of justice. See TheState of Western Australia v Bond Corporation Holdings Ltd.[4]
[3] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117] (Beech & Vaughan JJA).
[4] TheState of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40, 55 ‑ 57 (Malcolm CJ, Rowland & Walsh JJ agreeing).
Interlocutory appeals are scrutinised to guard against the unnecessary fragmentation of primary proceedings. The encouragement of appeals against interlocutory judgments or orders, before final judgment in the primary proceedings, would interfere with the orderly disposal of the primary proceedings and increase costs. See Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc;[5] Gerlach v Clifton Bricks Pty Ltd.[6] Appellate restraint is exercised to avoid interfering with interlocutory procedural decisions.
[5] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson & Brennan JJ).
[6] Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 [4] (Gaudron, McHugh & Hayne JJ).
In the present case, if the appellant is convicted of the charged offence against s 7(1)(a) of the Misuse of Drugs Act and is declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act, then under s 8(1) of the CPC Act all of the property that the appellant owns or effectively controls at the time the declaration is made, and all of the property that the appellant gave away at any time before the declaration was made, is confiscated to the State of Western Australia. See Centurion Trust Company Ltd v Director of Public Prosecutions (WA).[7] In those circumstances, the appellant would not have an arguable case to set aside the freezing notice in relation to any of the items of property specified in the notice unless the appellant does not own or effectively control the items, and has not at any time given them away. See s 84(2) of the CPC Act.
[7] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 [74] (Owen JA), [195], [199] (Buss JA).
By contrast, if the appellant is not declared to be a drug trafficker after the charged offence against s 7(1)(a) of the Misuse of Drugs Act has been dealt with, the items of property specified in the freezing notice cannot be confiscated under s 8(1) of the CPC Act. It is unnecessary to consider whether, in those circumstances, items (1) and (4) could potentially be confiscated under s 7(2) of the CPC Act.
In our opinion, the primary judge's decision to adjourn the appellant's originating summons to a date to be fixed is not wrong or attended with sufficient doubt to justify the grant of leave. Indeed, in the circumstances, it was a sensible course to adopt. If a material change in relevant circumstances occurred, the appellant could apply to relist his originating summons for hearing before the charged offence against s 7(1)(a) of the Misuse of Drugs Act has been dealt with.
Nothing in the appellant's grounds of appeal or submissions gives rise to any plausible basis to doubt the correctness of the primary judge's decision.
Further and in any event, we are satisfied that substantial injustice would not be done by leaving his Honour's interlocutory order unreversed. The appellant will be tried for the charged offences against s 7(1)(a) of the Misuse of Drugs Act and s 417(1) of the Criminal Code on 20, 21 and 22 September 2022. The evidence before this court does not establish that the conditions of the freezing notice, as affected by the control and management order made by the District Court on 12 February 2021, are occasioning unreasonable prejudice to the appellant.
It is not in the interests of justice to grant leave to appeal. Leave will be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KW
Associate to the Honourable Justice Buss
27 JULY 2022