Barbis v The State of Western Australia
[2019] WASC 224
•27 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: BARBIS -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 224
CORAM: HILL J
HEARD: 14 JUNE 2019
DELIVERED : 14 JUNE 2019
PUBLISHED : 27 JUNE 2019
FILE NO/S: CPCA 25 of 2017
BETWEEN: BOJAN BARBIS
DEJAN BARBIS
Plaintiffs
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation – Criminal Property Confiscation Act 2000 (WA) – Declaration of confiscation – Where property subject to confiscation is interest in estate where deceased died intestate – Turns on own facts
Legislation:
Administration Act 1903 (WA), s 13, s 14
Criminal Property Confiscation Act 2000 (WA), s 8, s 30, s 79, s 84(2)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 32A(1)
Result:
Objections dismissed
Declaration granted
Category: B
Representation:
Counsel:
| Plaintiffs | : | In person |
| Defendant | : | Mr I S Jones |
Solicitors:
| Plaintiffs | : | In Person |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barns v Barns [2003] HCA 9; (2003) 214 CLR 169
Campana v State of Western Australia [2008] WASC 230
Centurion Trust Co Ltd v Director of Public Prosecutions (DPP) (WA) [2010] WASCA 133
Estate of Harrigan, Re; Cowmey v Whibley [2012] NSWSC 291
Fremantle Lawyers Pty Ltd, Ashley David Wilson, Nicholas Emil Gvozdin and Ante Zorotovic v Ivan Josip Sarich as executor of the estate of Ivan Branimir Sarich [2019] WASC 48
Lange v Western Australia [2018] WASC 210
Macchia v The Public Trustee [2008] WASCA 241; (2008) 251 ALR 385
Re Pevsner; Ex parte Trustee in Bankruptcy (1983) 68 FLR 254
Spry v Kennon [2008] HCA 56; (2008) 238 CLR 366
Vigolo v Bostin [2005] HCA 11
HILL J:
On 8 June 2017, Mr Bojan Barbis was convicted of possession of cannabis with intent to sell or supply, contrary to the Misuse of Drugs Act 1981 (WA) s 6(1)(a). Pursuant to the Misuse of Drugs Act 1981 (WA) s 32A(1), the court declared him to be a drug trafficker.
As a consequence, pursuant to the Criminal Property Confiscation Act 2000 (WA) s 8, all of the property that the first plaintiff owned or effectively controlled at the time the declaration was made was confiscated to the State of Western Australia.[1]
[1] Centurion Trust Co Ltd v Director of Public Prosecutions (DPP) (WA) [2010] WASCA 133 [74], [195] and [199].
On 19 May 2017, a freezing notice was issued pursuant to the Criminal Property Confiscation Act, s 34. The freezing notice was served on the first plaintiff on 23 May 2017 and the second plaintiff on 11 September 2017.
On 30 May 2017, the plaintiffs filed an objection to the freezing notice pursuant to the Criminal Property Confiscation Act, s 79. This objection can only succeed if the plaintiffs can prove on the balance of probabilities that the property the subject of the freezing order was not owned or effectively controlled by the first plaintiff or that he had not given it away as at 8 June 2017.[2]
[2] Criminal Property Confiscation Act, s 84(2).
By summons dated 3 September 2018 (summons), the Director of Public Prosecutions (WA) applied for orders that:
1. The Plaintiffs' Objection to the confiscation of frozen property made by Originating Summons and Notice of Objection dated 30 May 2017 be dismissed.
2.The following property that Bojan Barbis ('BARBIS') owned or effectively controlled at the time he was declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 on 8 June 2017 or gave away at any time before that date has been confiscated to the State of Western Australia, namely, the equitable chose in action and/or statutory chose in action arising out of the provisions of the Administration Act 1903 (WA) in relation to the estate of BARBIS's mother, the late Spomenka Barbis who died intestate on 1 July 2014 including the right to the due administration of the estate, the right to apply for the administration of the estate and BARBIS's entitlement to a 50% share of the real and personal estate of the late Spomenka Barbis after payment of all amounts due and payable in the ordinary course of administration.
Under the Criminal Property Confiscation Act, s 30, if the court finds that the property described in the summons has been confiscated under s 8, it must make a declaration to that effect.
The matter came before me for hearing on 14 June 2019. The plaintiffs did not file any affidavits or submissions in opposition to the application. At the hearing, the plaintiffs did not seek an adjournment of the hearing to enable them to file any affidavits nor to adduce any evidence. The plaintiffs consented to the application being determined on the evidence that had been filed by the State.
The first plaintiff conceded that the property referred to in par 2 of the summons was owned by him as at 8 June 2017. The second plaintiff did not make any submissions.
Given the concession that the property was owned at the time the first plaintiff was declared to be a drug trafficker, the plaintiffs are unable to prove on the balance of probabilities that the property was not owned by the first plaintiff as at 8 June 2017.
For that reason, on 14 June 2019, I ordered the objection filed by the plaintiffs be dismissed and made a declaration that the property described in the summons had been confiscated. These are my reasons for that decision.
The facts
The State relied upon the affidavit of Morgan Charlotte Paling filed 3 September 2018 and the affidavit of Nicholas Perich filed 3 September 2018.
The plaintiffs are the only sons of Mr Joze Barbis and Mrs Spomenka Barbis.[3] Mr Barbis died on 9 July 1998.[4] Mrs Barbis died on or about 1 July 2014.[5] Mrs Barbis died intestate.[6]
[3] Affidavit of Nicholas Perich filed 3 September 2018, par 3.
[4] Affidavit of Nicholas Perich filed 3 September 2018, par 4, 'NP2'.
[5] Affidavit of Nicholas Perich filed 3 September 2018, par 5, 'NP3'.
[6] Affidavit of Nicholas Perich filed 3 September 2018, par 8.
At the time of her death, Mrs Barbis was the registered proprietor of the land at Lot 54 on Plan 16024 in Certificate of Title Volume 1789, Folio 369, commonly known as 30 Carnegie Loop, Cooloongup.[7] I was informed by counsel for the State at the hearing of the application that this property has been sold and the proceeds of sale, after repayment of outstanding obligations, has been paid into court. This is not material to the issues before me for determination.
[7] Affidavit of Morgan Charlotte Paling filed 3 September 2018, par 13, 'MCP16'.
By operation of the Administration Act 1903 (WA), s 13 and s 14, the first plaintiff is entitled to a half share of the estate of his late mother. The second plaintiff is entitled to the other half share. The second plaintiff's share is not the subject of this application.
At the time the declaration was made under the Misuse of Drugs Act, s 32A(1), letters of administration had not been applied for nor probate granted in respect of the estate of Mrs Barbis.[8] This position had not changed by the time the matter came before me for hearing.[9]
[8] Affidavit of Nicholas Perich filed 3 September 2018, par 9, 'NP6'.
[9] Letter from the Supreme Court dated 14 June 2019.
The issue for determination was whether the court was satisfied on the balance of probabilities that the property the subject of the application, namely an entitlement to a 50% share of the estate of the late Spomenka Barbis, was owned by the first plaintiff at the time he was declared to be a drug trafficker.[10]
[10] Campana v State of Western Australia [2008] WASC 230 [38] – [41].
Ownership of Property
Property is defined in the glossary to the Criminal Property Confiscation Act to mean:
(a)Real or personal property of any description, wherever situated, whether tangible or intangible; or
(b)a legal or equitable interest in any property referred to in paragraph (a).
In Lange v Western Australia, Allanson J considered whether the interest of a beneficiary under an estate where administration was not complete was 'property' within the meaning of that term in the Criminal Property Confiscation Act.[11] In that case, Allanson J held that the interest of a beneficiary of a deceased estate was a chose in action and was 'property' within the meaning of that term in the Criminal Property Confiscation Act stating:
The definition of property in the glossary to the Criminal Property Confiscation Act extends to a chose in action, such as that held by the beneficiary of an estate. …
… the property that passed to the State on the making of the declaration under the Misuse of Drugs Act is properly described as [the second plaintiff's] entitlement to the real and personal estate of the late [deceased]. The transmission of that property will entitle the State to the assets in the estate which remain after the payment of all duties and fees and the debts of the deceased in the ordinary course of administration.[12]
[11] Lange v Western Australia [2018] WASC 210.
[12] Lange v Western Australia [20] – [21].
I respectfully agree with his Honour's conclusion.
In that case, prior to Mrs Lange being declared a drug trafficker, she had applied for letters of administration, which had been granted, although the administration of the estate was not complete.
In my view, this factual distinction does not assist the plaintiffs. This is for three reasons. First, the right of a beneficiary under an intestate estate is a chose in action.[13] Second, a beneficiary's right to have the deceased's estate administered arises upon the death of the deceased[14] rather than on the application for letters of administration or completion of the administration. Third, the term 'beneficiary' has been frequently used to apply to persons entitled upon intestacy as well as persons with an interest under a valid will.[15] In my view, there is no valid distinction for the purposes of the Criminal Property Confiscation Act between the right to due administration of an estate under a valid will and the right to due administration of an intestate estate.
[13] Spry v Kennon [2008] HCA 56; (2008) 238 CLR 366. See also Re Pevsner; Ex parte Trustee in Bankruptcy (1983) 68 FLR 254 and Macchia v The Public Trustee [2008] WASCA 241; (2008) 251 ALR 385.
[14] Fremantle Lawyers Pty Ltd, Ashley David Wilson, Nicholas Emil Gvozdin and Ante Zorotovic v Ivan Josip Sarich as executor of the estate of Ivan Branimir Sarich [2019] WASC 48 [211].
[15] Estate of Harrigan, Re; Cowmey v Whibley [2012] NSWSC 291 [34]. See also Vigolo v Bostin [2005] HCA 11 [15].
On the death of his mother on or about 1 July 2014, the first plaintiff acquired a right to apply for the administration of her estate,[16] the right to require the due administration of her estate[17] and a right to an equal share in the residuary of the estate.[18]
[16] Administration Act 1903, s 25(1).
[17] Barns v Barns [2003] HCA 9; (2003) 214 CLR 169 [50].
[18] Administration Act 1903, s 14.
I find that as at 8 June 2017, the first plaintiff's property included a chose in action as beneficiary of his late mother's estate of an entitlement to a 50% share of the estate. The consequence of this finding is that the plaintiffs' objections should be dismissed and this property has, by operation of law, been confiscated under the Criminal Property Confiscation Act, s 8. For this reason, I declare that the first plaintiff's property as described in Order 2 of the summons has passed to the State.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill2 JULY 2019
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