Austviet International Pty Ltd v Director of Public Prosecutions
[2020] VSC 711
•26 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CONFISCATION AND PROCEEDS OF CRIME LIST
S CI 2010 4336
S CI 2010 4337
S CI 2010 4338
S CI 2010 4339
S CI 2010 4340
S CI 2010 4341
S CI 2010 4345
S CI 2010 4346
S CI 2010 4349
S CI 2010 4342
S CI 2010 4343
S CI 2010 4344
S CI 2010 4347
S CI 2010 4348
S CI 2010 4350
S CI 2010 4351
S CI 2010 4352
S CI 2010 4353
S CI 2010 4354
S CI 2010 4355
S CI 2010 4356
IN THE MATTER of the Confiscation Act 1997
-and-
IN THE MATTER of property which a member of the police force suspects on reasonable grounds to be tainted property in relation to a Schedule 2 offence
-and-
IN THE MATTER of various alleged offenders
-and-
IN THE MATTER of an Application by THE DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA
| DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA | Applicant |
| v | |
| AUSTVIET INTERNATIONAL PTY LTD | Interested Party |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 October 2020 |
DATE OF RULING: | 26 October 2020 |
CASE MAY BE CITED AS: | Austviet International Pty Ltd v DPP |
MEDIUM NEUTRAL CITATION: | [2020] VSC 711 |
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PRACTICE AND PROCEDURE – Release from Harman undertaking – Consideration of special circumstances – Leave granted – Non-publication orders – Orders be set aside – Hearne v Street (2008) 235 CLR 125 - Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Burton | Office of Public Prosecutions of Victoria |
| For the Interested Party | No Appearance |
HER HONOUR:
The Director of Public Prosecutions (DPP) makes application for release from any implied undertaking given in confiscation proceedings commenced in 2010 and the lifting of non-publication orders made in those proceedings. For the reasons that follow I will grant the applications.
Twenty one proceedings for restraint of property were commenced in 2010 pursuant to the Confiscation Act 1997 (Vic) (‘the forfeiture proceedings’). The subject matter arose out of a police investigation into drug trafficking known as Operation Sothra. Orders were made by Justice Habersberger in closed court on an ex parte basis pending the imminent arrest and charging of a number of persons. One form of order, made in nine proceedings, was for conviction based orders and the remaining proceedings for restraint was for the purpose of civil forfeiture. At the time all of the Orders included a non-publication order in respect of the persons identified as the subject of each order and orders preserving the confidentiality of the affidavit material filed in support of the applications.
Ultimately various criminal proceedings were concluded and the restrained property was subject either to exclusion or forfeiture or the restraint was otherwise removed so that all the forfeiture proceedings were also concluded. The confidential nature of the supporting material and the non-publication orders remains in place. One of the properties restrained for the purpose of civil forfeiture was land at Station Street, Albanvale (‘the station St property’). It was restrained by Order in proceeding No 4336 of 2010.
In the forfeiture proceedings two affidavits were relied on sworn by Phillip James Gillespie on 10 August 2010 and 11 August 2010 (together the ‘Gillespie affidavits”). They are intended to be read in tandem with information in one referred to an adopted by the other. One affidavit was sworn directed at the requirements for the conviction based orders and the other for the civil forfeiture requirements.
The Station St property had been sold in 2010 and the proceeds of that sale after payment of various third party interests were restrained and ultimately forfeited. The registered owner of the property had not made any application for exclusion at the time forfeiture was ordered.
In 2020 Austviet International Pty Ltd (‘Austviet’) commenced a new proceeding (No 01370 of 2020 ‘the current proceeding’) seeking exclusion from forfeiture of its interest as registered owner of the Station St property. The application for exclusion is made pursuant to s 51(1) but is out of time. An extension of time pursuant to s 51(3) of the Confiscation Act is also made. It is unclear why the application is brought as a new proceeding rather than an application in proceeding No 4336 of 2010.
Austviet and its director are not the subject of any of the non-publication orders and were not charged in any of the relevant criminal proceedings. However, the Gillespie affidavits make reference to matters pertaining to the company, ownership of the Station St property and the activities of other persons including offenders now convicted, who were either related to the company or its director. A number of those persons are subject to the non-publication order as is the Station Rd property itself.
The DPP, by the affidavit in support of this application sworn by Damian Martin on 31 July 2020 and filed in the forfeiture proceedings, deposes to the DPP opposition to the extension of time application made by Austviet, and if necessary to contesting the exclusion application. In order to do so it believes it will be necessary to refer to and rely upon matters that are subject to the non-publication order. It also desires to rely on relevant parts of the Gillespie affidavits for the collateral purpose of defending the current proceeding.
Non Publication Order
The relevant part of the Orders in 2010 is as follows:
1(e)The publication of the identity of the person named by the Restraining Order and the property the subject of the Restraining Order is prohibited.
Essentially the purpose of the non-publication order, and indeed the accompanying application to hear the matter in closed court with material on the Court file marked as confidential, was so as not to compromise the ongoing police operation which was shortly to arrest and charge a number of individuals and execute a number of search warrants. Liberty to apply in respect of non-publication was also granted in the orders.
Absent any ongoing police investigations into the subject matter of the restraining order, and indeed the conclusion of the proceedings and any criminal charges associated with the restraint save for this late exclusion application, it is clear that no real purpose is served by continuing non publication. While the present application for exclusion is on foot, continuing non publication of names and property creates a difficulty for parties.
I am satisfied that the Non Publication Order that is Order 1(e) in each of the forfeiture proceedings be set aside.
Implied Undertaking
The application for release from the implied undertaking given in the forfeiture proceedings, is for the purpose of using that information in the current application. It is not opposed.
The implied undertaking prevents a party in a proceeding who obtains documents through court processes from using those documents for collateral purposes.[1] In Hearne v Street the High Court described the obligation not to use material obtained in this way for a collateral purpose as resting on the party obtaining the disclosure. The obligation is owed to the Court. The affidavits were filed on behalf of the DPP and are now sought to be used by that same party for a collateral purpose. As such, there might be a question as to whether the obligation to the Court arises. The DPP has taken the approach that it may arise and it is therefore appropriate to seek the Court’s release. Although the information was disclosed by the DPP in the forfeiture proceedings, the affidavit includes information obtained from the other parties in the forfeiture proceedings, including information obtained by means of police investigation and covert surveillance which is then disclosed adverse to the interest of those parties and potentially other persons. As the application is not opposed I will act, without deciding the question, on the basis that the undertaking does apply to the affidavits.
[1]Hearne v Street (2008) 235 CLR 125 Often described as a ‘Harman undertaking’ from Harman v Secretary of State for the Home Department [1983] 1 AC 280.
In order to be released from an implied undertaking, the court must be satisfied that ‘special circumstances’ are demonstrated.[2] Special circumstances are directed at a legitimate reason why documents disclosed or discovered in one proceeding should be available in another proceeding. The rarity of such occasion does not make it special, rather there are a number of factors to be considered looking at the nature and circumstances of the actions where the obligation arises and the use now sought to be made.
[2]Springfield Nominees Pty Ltd & Others v Bridgelands Securities Ltd & Ors (1992) 110 ALR 685.
In Springfield Nominees & Others v Bridgelands Securities Ltd & Ors, Wilcox J set out those factors as including:
(a) The nature of the document;
(b) The circumstances under which it came into existence;
(c) The attitude of the author of the document and any prejudice the author may sustain;
(d) Whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
(e) The nature of the information contained in the document, particularly whether it contains sensitive commercial or personal information;
(f) The circumstances in which the document came into the hands of the applicant for leave; and
(g) The likely contribution of the document to achieving justice in the second proceeding.
The DPP seeks to use relevant parts of the Gillespie affidavits for the purpose of resisting the extension of time and its underlying exclusion application by Austviet. The underlying factual stratum is common between proceedings, as is the property itself that is the subject of the application, so much so that the application could have been brought as an application in 4336 in which case no question of collateral use would arise.
Release from the undertaking to the Court does not in any way determine whether the affidavits contain relevant admissible evidence in the current proceeding, nor does it place the contents of the affidavit in the public domain. Those matters will depend on what steps the parties take to make evidentiary use of the documents in due course. The affidavits otherwise remain subject to orders of confidentiality on the court files in the forfeiture proceedings.
I will release the DPP from the obligation not to make collateral use of the documents in these forfeiture proceedings to permit use of the Gillespie affidavits in proceeding 01370 of 2020.
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