Bamess v The State of Western Australia
[2015] WASC 259
•27 JULY 2015
BAMESS -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 259
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 259 | |
| Case No: | CPCA:10/2011 | 8 MAY 2015 & ON THE PAPERS | |
| Coram: | BEECH J | 27/07/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Objections dismissed Declaration of confiscation made | ||
| B | |||
| PDF Version |
| Parties: | CARISSA LEE BAMESS RALPH RODGER KOMETER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Confiscation of property Objection Whether objector has demonstrated an equitable interest in the property Turns on own facts Practice and procedure Application for leave to re-open Turns on own facts |
Legislation: | Criminal Property (Confiscation) Act 2000 (WA) |
Case References: | Agricultural Land Management Ltd v Jackson [2013] WASC 464 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Attorney General (NT) v Emmerson [2014] HCA 13; (2014) 88 ALJR 522 Australian Securities and Investment Commission v Rich [2006] NSWSC 826 Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 Centurion Trust Co Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463 Emmerson v Director of Public Prosecutions [2013] NTCA 4; (2013) 33 NTLR 1 Gissing v Gissing [1971] AC 886 Green v Green (1989) 17 NSWLR 343 Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 Kais v Turvey (1994) 11WAR 357 Kometer v The State of Western Australia [2012] WASCA 220 Lloyd v Tedesco [2002] WASCA 63; (2002) 25 WAR 360 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 Myra Pty Ltd v Thompson [2011] WASC 230 Osborne v Landpower Developments Pty Ltd (In Liq) [2003] WASCA 117 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 Stowe v Stowe (1995) 15 WAR 363 Willis v The State of Western Australia [No 3] [2010] WASCA 56 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- CPCA 138 of 2010
Consolidated by orders dated 14 October 2013
- First Plaintiff
RALPH RODGER KOMETER
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal law - Confiscation of property - Objection - Whether objector has demonstrated an equitable interest in the property - Turns on own facts
Practice and procedure - Application for leave to re-open - Turns on own facts
Legislation:
Criminal Property (Confiscation) Act 2000 (WA)
Result:
Objections dismissed
Declaration of confiscation made
Category: B
Representation:
Counsel:
First Plaintiff : In person (on 8 May 2015)
Second Plaintiff : In person
Defendant : Mr T Staples
Solicitors:
First Plaintiff : K & L Gates (from June 2015)
Second Plaintiff : In person
Defendant : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Agricultural Land Management Ltd v Jackson [2013] WASC 464
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Attorney General (NT) v Emmerson [2014] HCA 13; (2014) 88 ALJR 522
Australian Securities and Investment Commission v Rich [2006] NSWSC 826
Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137
Centurion Trust Co Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463
Emmerson v Director of Public Prosecutions [2013] NTCA 4; (2013) 33 NTLR 1
Gissing v Gissing [1971] AC 886
Green v Green (1989) 17 NSWLR 343
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Kais v Turvey (1994) 11WAR 357
Kometer v The State of Western Australia [2012] WASCA 220
Lloyd v Tedesco [2002] WASCA 63; (2002) 25 WAR 360
Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583
Myra Pty Ltd v Thompson [2011] WASC 230
Osborne v Landpower Developments Pty Ltd (In Liq) [2003] WASCA 117
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Stowe v Stowe (1995) 15 WAR 363
Willis v The State of Western Australia [No 3] [2010] WASCA 56
- BEECH J:
Introduction
1 In this action the plaintiffs object to the confiscation of property the subject of a freezing notice. For the reasons that follow, those objections should be dismissed. The Director of Public Prosecutions (the Director) seeks a declaration that property of the second plaintiff, Mr Kometer, has been confiscated. I would make that declaration.
Freezing Notice
2 On 26 November 2010 a freezing notice was issued under s 34(3) of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act) in respect of property believed to be owned or effectively controlled by the second plaintiff, Mr Kometer. The property specified in the freezing notice comprised:
(1) real estate in Kalgoorlie of which Mr Kometer was the sole registered proprietor;
(2) two Harley Davidson motorcycles, two Holden motor vehicles, one Ford motor vehicle and a caravan (all registered in Mr Kometer's name);
(3) money standing to the credit of bank accounts in Mr Kometer's name; and
(4) an amount of cash.
Objection Proceedings; procedural history
3 On 17 December 2010, Mr Kometer filed an objection to the confiscation of the property the subject of the freezing notice (CPCA 138 of 2010). On 8 March 2011, the first plaintiff, Ms Bamess filed an objection to the confiscation of property the subject of the freezing notice (CPCA 10 of 2011).
4 By consent, orders were made appointing Mr Kometer to manage the real property in Kalgoorlie, the motor vehicles and the caravan, and adjourning both objections sine die.
5 On 16 December 2011, Mr Kometer was convicted in the District Court of the offence of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (Drugs Act). The offence of which Mr Kometer was convicted was committed on 25 November 2010.
6 On 6 February 2012, Mr Kometer was sentenced to a term of 8 years imprisonment, and a drug trafficker declaration was made under s 32A of the Drugs Act.
7 On 2 November 2012, the Court of Appeal dismissed Mr Kometer's appeal against his conviction.1
8 On 12 April 2013, Ms Bamess swore an affidavit in which she asserted that her and Mr Kometer's five-year-old daughter had an interest in certain property identified in the freezing notice.
9 On 7 May 2013, the Director filed an application in Mr Kometer's objection proceedings seeking an order dismissing Mr Kometer's objection and an order declaring that the specified property (being the property identified in the freezing notice) has been confiscated to the State of Western Australia.
10 On 21 June 2013, Simmonds J made orders in Ms Bamess' objection proceedings that a firm of solicitors who were on the record as solicitors for Ms Bamess had ceased to act for her.
11 On 15 August 2013, Corboy J made orders including an order that the plaintiffs file any affidavits on which they wish to rely in support of their applications in the respective objection proceedings by 16 September 2013.
12 Ms Bamess filed an affidavit of herself on 12 September 2013. No affidavit was filed by Mr Kometer prior to 16 September 2013.
13 On 14 October 2013, Simmonds J made an order consolidating the objection proceedings and listing the consolidated proceeding for a hearing of half a day's duration on a date to be fixed. Ms Bamess was ordered to attend for cross-examination.
14 The applications in the consolidated proceeding were listed for hearing before a judge in chambers on 13 February 2014 for half a day. On 13 February 2014, Simmonds J granted an application by the plaintiffs to adjourn the proceedings sine die. The basis of the adjournment was the special leave application from the decision of the Northern Territory Court of Appeal in Emmerson v Director of Public Prosecutions.2 In that case the Court of Appeal had held provisions which were similar to those engaged in the present case to be invalid.
15 On 10 April 2014, the High Court allowed an appeal against the decision of the Court of Appeal in Emmerson. The court held that the Northern Territory legislation was not incompatible with Chapter III of the Commonwealth Constitution.3
16 On 26 May 2014, Mr Kometer filed an affidavit in the consolidated proceeding.
17 Following the decision of the High Court, the office of the Director requested that the present proceeding be listed for hearing. This proceeding was listed on 11 June 2014.
18 On 11 June 2014, EM Heenan J ordered that the matters be listed for hearing on 22 July 2014.
19 On 22 July 2014, EM Heenan J adjourned the proceeding to enable the plaintiffs to seek legal advice. At the same time he gave the plaintiffs a detailed explanation of the nature of the proceeding and its legal framework.4 Justice Heenan anticipated the adjourned hearing would be about three months from the date of his orders.
20 Nothing further appears to have happened on the matter until 24 October 2014, when the office of the Director requested that the matter be set down for a directions hearing.
21 On 4 November 2014, a firm of solicitors filed a notice that they acted for Ms Bamess.
22 The matter came before Mitchell J for directions on 29 January 2015. At that time his Honour made orders, by consent, that the time for the first plaintiff to file and serve any further affidavits and an outline of submissions be extended to 20 February 2015 and that the matter be listed for further directions on 12 March 2015.
23 On 12 March 2015 the following orders, among others, were made by consent:
(1) The first and second plaintiffs' originating summons and the defendant's summons for a declaration of confiscation be listed for hearing before a judge in chambers for half a day.
(2) The first plaintiff's affidavits sworn 12 April 2013 and 12 September 2013 and the second plaintiff's affidavit sworn 21 May 2014 stand as those parties' evidence in chief.
(3) The affidavit of Jodi Kathleen Cuschieri sworn 15 March 2013 stand as that deponent's evidence in chief.
(4) Except with leave of the court, no party may give oral evidence in chief at the above hearing.
(5) All deponents are excused from attending the above hearing for the purpose of cross-examination.
(6) The second plaintiff has leave to appear at the above hearing by video link.
(7) There be no order as to costs.
24 Thus it was clear from these orders that the plaintiffs relied only upon the affidavits they had already filed, and did not seek to adduce any additional evidence.
25 At the hearing on 8 May 2015 Ms Bamess appeared on her own behalf and sought an adjournment in order to get legal representation. She said that she could no longer afford to pay the lawyers who were on the record for her. She expressed some dissatisfaction with the lawyers, saying that they had not followed her instructions and appeared to her to lack expertise in the area. She sought time so as to save some further money, and then to instruct a new lawyer.5
26 Against the background of the history I have outlined in these reasons, I declined to grant an adjournment of the hearing. However, I was willing to allow Ms Bamess a further opportunity to find a lawyer to assist by preparing written submissions. I made it clear that there was no contemplation of further evidence, only written submissions.6
27 Ms Bamess elected not to advance any oral submissions, preferring to put her submissions in writing, which, she hoped, were to be prepared by lawyers on her behalf.
28 I ordered that Ms Bamess file and serve written submissions by 4 June 2015, and that the applications be determined on the papers.
29 On 20 May 2015, by consent, an extension of time was granted.
Ms Bamess' further affidavit
30 On 19 June 2015 pro bono solicitors for Ms Bamess filed a further affidavit of Ms Bamess dated 19 June 2015, together with written submissions also of that date.
31 Those submissions proceed on an unstated premise that Ms Bamess' further affidavit can be received and taken into account. The submissions appear to have been prepared without any knowledge of what had occurred at the hearing on 8 May 2015. The submissions make no reference to the need for leave to file the further affidavit, or to the need for leave to reopen.
32 Leave to reopen is required in order for Ms Bamess to rely upon her further affidavit of 19 June 2015. Subject to the filing of written submissions, the hearing of the applications was completed on 8 May 2015, and it proceeded on the basis that the affidavits before the court were those identified in the Orders of 12 March 2015. Once an application has been heard, there is no right to deliver any further affidavit without leave.7
Ms Bamess' application for leave to reopen
33 The guiding principle in deciding whether to grant leave to reopen is the identification of where the interests of justice lie in all the circumstances of the case.8
34 Some of the factors which may be relevant to that question were identified by Austin J in Australian Securities and Investment Commission v Rich9and include the following:
(a) the nature of the proceedings;
(b) whether the occasion for calling the further evidence ought reasonably to have been foreseen;
(c) the consideration of fairness that the defendant is entitled to know all the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;
(d) the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case-in-chief;
(e) the importance of the issue on which the further evidence is sought to be adduced to the issues in the case;
(f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;
(g) the prejudice to the defendant in terms of delay in the completion of the proceedings;
(h) the public interest in the timely conclusion of the litigation; and
(i) what explanation is offered by the plaintiff for not having called the evidence in-chief.
35 In Smith v New South Wales Bar Association10 Brennan, Dawson, Toohey and Gaudron JJ said as follows:
It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side.
36 That passage was applied by McLure J in Osborne v Landpower Developments Pty Ltd (In Liq).11
37 Four well recognised categories of cases in which a court may grant leave to reopen are those involving:
(1) fresh evidence;
(2) inadvertent error;
(3) mistaken apprehension of the facts; or
(4) mistaken apprehension of the law.12
38 Case management considerations of the kind discussed in Aon Risk Services Australia Ltd v Australian National University13 apply to the discretion whether to permit reopening.14
39 Ms Bamess' further affidavit contains evidence directly relevant to the essential issue of whether she has any equitable interest in any of the property the subject of this proceeding. That is a consideration that weighs firmly in favour of granting the application. Nevertheless, for the reasons that follow, I am not satisfied that it is in the interests of justice to grant leave to reopen.
40 First, Ms Bamess has not provided any affidavit or made any submission that explains why the evidence in the new parts of her affidavit of 19 June 2015 was not included in an affidavit filed at some time before the hearing on 8 May 2015.
41 Secondly, Ms Bamess had, prior to the hearing of 8 May 2015, more than ample opportunity to file all affidavits on which she proposed to rely. She first filed an affidavit sworn 12 April 2013. In August 2013 orders were made for her to file any further affidavits by 16 September 2013. In compliance with that order, she filed an affidavit dated 12 September 2013.
42 On 29 January 2015 it was ordered, by consent, that the time for Ms Bamess to file and serve any further affidavits be extended to 20 February 2015. No further affidavit was filed.
43 On 12 March 2015 orders were made by consent which identified the evidence relied upon by the first plaintiff as being her affidavits of 12 April 2013 and 12 September 2013. Those orders, made while Ms Bamess was legally represented, in effect identified the evidence relied upon by each party, and restricted the evidence to be relied upon to that which was identified.
44 No further affidavit, or application to file a further affidavit, was filed at any time up to the hearing of 8 May 2015. There were solicitors on the record for Ms Bamess from 14 November 2014 up to and including the date of the hearing on 8 May 2015.
45 Thirdly, these proceedings have already been listed for hearing three times. The grounds for the adjournment of the first hearing, in February 2014, are not presently relevant. The second hearing was listed for 22 July 2014. That hearing was adjourned to enable the plaintiffs to seek legal advice. Some months later, solicitors went on the record for the first plaintiff.
46 Fourthly, the State and the Director would be prejudiced by a grant of leave to reopen. If leave to reopen is granted, the State would need to investigate the further factual matters raised for the first time in Ms Bamess' affidavit of 19 June 2015. In all likelihood there would need to be a further hearing in order for the State to cross-examine Ms Bamess on her affidavit. Depending on the results of investigations, the State may also wish to file further affidavits in opposition to the application. Against the background of the long history of this matter, these consequences seem to me to weigh heavily against the grant of leave to reopen.
47 Fifthly, the effect of the grant of leave to reopen on the limited resources of the court, and its effect on other litigants, also weighs against the grant of leave.15
48 For these reasons, I would refuse Ms Bamess' application for leave to reopen.
49 Ms Bamess' solicitors submit that if Ms Bamess had had the benefit of representation at the hearing on 8 May 2015 she would then have sought an order permitting her to file and serve further affidavit material.16 For the reasons that I have given, had such an application been made, it would have been refused.
50 For these reasons, I proceed to determine these matters without regard to Ms Bamess' affidavit of 19 June 2015.
51 I begin with Mr Kometer's position.
Mr Kometer's position
52 Mr Kometer does not have any tenable defence to the Director's application for orders that his objection be dismissed and that his interest in the frozen property has been confiscated. The effect of s 8 of the Confiscation Actwas to confiscate all property which Mr Kometer owned, or effectively controlled, when the drug trafficker declaration was made on 6 February 2012 and all property which he had given away prior to that date. The declaration sought by the Director follows from the operation of s 8, subject to establishing that the second plaintiff owned, effectively controlled or had given away the specified property. Once it is recognised that the confiscation declaration must be made, there is no utility in determining Mr Kometer's objection.
53 Evidence adduced by the Director establishes that the property specified in the freezing notice and the application for a confiscation declaration was owned or effectively controlled by Mr Kometer. Mr Kometer was the registered proprietor of the real property in Kalgoorlie, the holder of the licences for the vehicles, the holder of the bank accounts and the person from whom seized cash was taken.17 There is no evidence to the contrary.
54 In reaching that conclusion I note Mr Kometer's affidavit filed on 26 May 2014. That affidavit is directed to establishing that the property identified in the freezing notice was lawfully obtained by Mr Kometer. For present purposes, the Director and State do not contest that proposition. However, it is not a defence to the Director's application for a confiscation declaration to show that the property was lawfully obtained. Section 8 of the Confiscation Act operates to confiscate all relevant property where a drug trafficker declaration is made, whether that property was lawfully or unlawfully obtained.
55 The effect of s 30(2) of the Confiscation Act is that having found that the property described in the application has been confiscated under s 8, the court must make a declaration to that effect.
56 Therefore, subject to the question of whether Ms Bamess holds an interest in the relevant property, it is appropriate to make the confiscation declaration sought by the Director and to dismiss Mr Kometer's objection.
Ms Bamess' position
The facts
57 The factual basis for Ms Bamess' contention that she and her daughter have an interest in the frozen property is as follows.
58 Mr Kometer became the registered proprietor of the Kalgoorlie property on 15 March 2000.
59 Ms Bamess says that she met Mr Kometer in September 2006 and moved into the Kalgoorlie property in October of that year. She says that she and Mr Kometer became engaged on 22 December 2006, and that she has resided at the Kalgoorlie property since that time. Mr Kometer says that her daughter has resided at the Kalgoorlie property since her birth in September 2007.
60 Ms Bamess says that she has undertaken home duties such as helping to renovate the inside and outside of the property, cooking meals, cleaning and maintaining the gardens. Ms Bamess accepts that she has not contributed to any mortgage repayments in relation to the property. She says that her income (derived from some work as a barmaid and cleaner prior to the birth of her daughter) was used to contribute to furnishing the property as well as assisting to pay utilities bills.
61 Ms Bamess also says that the Ford motor vehicle was 'purchased to use by Ralph, I and [their daughter] as a family unit'.18 Ms Bamess says that she did not make payments on that vehicle, but used the vehicle to run daily errands including transporting her daughter.
62 Ms Bamess says that she is no longer in a relationship with Mr Kometer, and does not wish to continue a relationship with him upon his release from prison.
63 Ms Bamess deposes that she is surviving on a single mother's pension and has no family support.19 Ms Bamess says that if she and her daughter cannot reside in the Kalgoorlie property they will have nowhere else to reside.20
Legal principles
64 Ms Bamess' objection is made under s 84(2) of the Confiscation Act.
65 For Ms Bamess to succeed in her objection, she must establish an equitable interest in the property, and the onus is on her to make out her objection on the balance of probabilities.21
66 So far as the Director's application for a confiscation declaration is concerned, it is for the Director to prove, on the balance of probabilities, that Mr Kometer owned or effectively controlled the frozen property at the time the drug trafficker declaration was made. There is no real contest in this respect.
67 In Green v Green22Gleeson CJ observed:
It is clear that the mere existence of a matrimonial or de facto relationship combined with expressed or implied understandings to provide support and accommodation will not form a sufficient basis for concluding that there is a constructive trust by virtue of which a proprietary interest in the home occupied by the parties is created … In a legal system which does not include concepts of family or community property, and where an obligation on the part of a husband to house and provide for his wife is commonly regarded as an incident of the matrimonial relationship, an undertaking of the kind referred to cannot of itself confer upon a wife a legal or equitable interest in the matrimonial home … The acceptance of an obligation on the part of the husband to house his wife would not normally be regarded as an undertaking to give her a proprietary interest in the home in which they live, and wives usually have reasons for living with their husbands other than an expectation that they will increase their assets.
68 That passage has been adopted on a number of occasions in this State.23 Ms Bamess claims an interest arising by or reflected in a constructive trust.
69 One well established category of constructive trust is where there is a common intention between the legal owner of the property and the claimant that the claimant will have a beneficial interest in the land, and that person is induced by the words or conduct of the proprietor of the land to act to his or her detriment in the belief that by so acting he or she is acquiring a beneficial interest in the land.24
70 Another basis for the imposition of a constructive trust arises from the principle enunciated by Deane J in Muschinski v Dodds:25
The principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that the other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of relevant property to the extent that it would be unconscionable for him so to do.
71 This principle has been approved and applied in many cases.26
72 In Lloyd v Tedesco Murray J, with whom Hasluck J concurred, noted, in relation to the principles governing a joint endeavour constructive trust:
The guiding principle is unconscionability. In this, as in every such case of a failed de facto relationship, there must be more than simply the performance by the plaintiff of the valuable role of the provision of love, care and support. The provision of such a contribution will be sufficient only if it is related in some factual way to the generation of wealth as part of a joint effort or endeavour to provide for the parties' mutual material welfare and security. That need not, of course, be the only purpose of the provision of such assistance to the defendant, but it must be one of the material purposes because it is that which marks out the character of the joint endeavour as being one which will generate a claim, upon the failure of the relationship, without the fault of the plaintiff, to a share in the property created, acquired, maintained and improved during the course of the relationship, where the endeavour can be seen to be related to particular items of property, or will generate a claim for compensation representing the value of the contribution made by the claimant to the increase in the material wealth which was intended to be enjoyed by the parties jointly.
A joint endeavour of this character is one which has the aim of adding to the parties' material wealth for their mutual benefit rather than being one where the plaintiff simply provides loving care and support to the defendant as a normal incident of a de facto relationship. In that sense it is right to say that the joint endeavour must be one intentionally or deliberately entered into for the purpose of advancing the parties' mutual material wealth. Only if it bears that character will it be unconscionable to allow the defendant to retain the entirety of the beneficial interest in that wealth.27
73 In Willis Buss JA observed that it is necessary for a claimant to identify with some precision the nature, purpose and scope of the alleged joint endeavour, and said:
Mere cohabitation, without more, does not provide any basis for inferring the existence of a joint endeavour between the cohabitating parties which has as its purpose the acquisition, improvement or maintenance of the property in which the members of the family unit make their home.28
The disposition of Ms Bamess' application
74 In my view, the evidence adduced by the plaintiffs falls a long way short of establishing the existence of a constructive trust that would give Ms Bamess or her daughter an equitable interest in the Kalgoorlie property.
75 There is no evidence of a common intention of both plaintiffs that Ms Bamess should have a beneficial interest in the property. Likewise, there is no evidence that Ms Bamess has acted to her detriment on the basis of that common intention such that it would be unconscionable for Mr Kometer to have departed from that intention at any particular time.
76 Nor is there any evidence sufficient to establish a joint endeavour constructive trust, of the kind identified in Baumgartner v Baumgartner. It is clear on the evidence before me that Ms Bamess did not contribute financially to the acquisition of the Kalgoorlie property or to the mortgage payments for it.29 Financial contribution to the furnishing of the property would not be capable of giving rise to a constructive trust except so far as the furnishings were fixtures, and there is no evidence that this is the case. Financial contribution to the utilities bills would simply be a contribution to the running expenses of the household to which Mr Kometer contributed. The non-financial contributions to the maintenance of the house are such as would be expected in any domestic relationship. There is no evidence that any of the financial or non-financial contributions made by Ms Bamess increased the wealth of Mr Kometer, by adding to the value of the property or otherwise, so there is no wealth which it could be unconscionable for Mr Kometer to retain.
77 In my view, Ms Bamess has established no more than that she has cohabited with Mr Kometer in a de facto relationship during which she has done a share of the household chores and met some of the household expenses. The only expenditure of which there is evidence coming close to being capital expenditure is the purchase of some furniture. That is not expenditure on the real property. There has been no enrichment of Mr Kometer which would make it unconscionable for Mr Kometer to deny Ms Bamess an interest in the Kalgoorlie property.
78 The same point can be made in relation to the Ford motor vehicle. Ms Bamess' use of the vehicle is a benefit which she derives from its purchase and does not give rise to a proprietary interest in the vehicle. To the extent that Mr Kometer gave the vehicle to Ms Bamess it would still be caught by s 8 of the Confiscation Act as property given away by Mr Kometer before the drug trafficker declaration was made.
79 Ms Bamess' reference to the personal hardship which confiscation of the property will cause her is not a ground for objection where the basis for confiscation is the making of a drug trafficker declaration in relation to the person who owned or effectively controlled the property.30
Conclusion
80 In my opinion the Director has established that the frozen property was owned or effectively controlled by Mr Kometer when the drug trafficker declaration was made, or had been given away by him prior to that time. Neither of the plaintiffs has established any ground for resisting confiscation of the frozen property.
81 In these circumstances it is appropriate to dismiss the plaintiffs' objections and make a declaration in the terms sought by the Director.
1Kometer v The State of Western Australia [2012] WASCA 220.
2Emmerson v Director of Public Prosecutions[2013] NTCA 4; (2013) 33 NTLR 1.
3 See Attorney General (NT) v Emmerson [2014] HCA 13; (2014) 88 ALJR 522.
4 ts 71 - 74, 22 July 2014.
5 ts 78 - 80, 8 May 2015.
6 ts 83, 85 - 87, 8 May 2015.
7Myra Pty Ltd v Thompson [2011] WASC 230 [25] (Le Miere J).
8Australian Securities and Investment Commission v Rich [2006] NSWSC 826 (Austin J); Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 [24] (Kenny J); Myra [33].
9Australian Securities and Investment Commission v Rich [18].
10Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256, 266 - 267 (footnotes omitted).
11Osborne v Landpower Developments Pty Ltd (In Liq) [2003] WASCA 117 [12].
12Bradshaw [24]; Myra [29]; Agricultural Land Management Ltd v Jackson [2013] WASC 464 [88] (Edelman J).
13Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
14Myra [27] - [28].
15Aon Risk Services v ANU [113] - [114] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).
16 First plaintiff's submissions in reply dated 30 June 2015 [5].
17 See affidavit of Jodi Kathleen Cuschieri sworn 15 March 2013.
18 Affidavit of Carissa Lee Bamess sworn 10 September 2013 [19].
19 Affidavit of Carissa Lee Bamess sworn13 September 2013 [16].
20 Affidavit of Carissa Lee Bamess sworn 13 September 2013 [17].
21Centurion Trust Co Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463 [89] (McLure JA, Buss JA agreeing).
22Green v Green (1989) 17 NSWLR 343, 353.
23 See Stowe v Stowe (1995) 15 WAR 363, 369 (Ipp, Owen & White JJ); Lloyd v Tedesco [2002] WASCA 63; (2002) 25 WAR 360 [16] (Murray J), [84] (Pullin J); Willis v The State of Western Australia [No 3] [2010] WASCA 56 [65] (Buss JA, Owen JA agreeing).
24Gissing v Gissing [1971] AC 886, 905 - 910 (Lord Diplock); Green v Green (353); Stowe v Stowe (367) - (368).
25Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, 620.
26Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137; Kais v Turvey (1994) 11WAR 357, 362 (Malcolm CJ), 364 (Ipp J); Lloyd v Tedesco.
27Lloyd v Tedesco [30] - [31].
28Willis [72].
29 See affidavit of Carissa Lee Bamess sworn 10 September 2013 [12] - [14].
30 Contrast s 84 of the Confiscation Act with s 82(3)(f) of that Act.
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