Bennett & Co (a firm) v Director of Public Prosecutions (WA)
[2005] WASCA 141
•2 AUGUST 2005
BENNETT & CO (A FIRM) -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2005] WASCA 141
| (2005) 31 WAR 212 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 141 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:1/2005 | 7 FEBRUARY 2005 | |
| Coram: | MALCOLM CJ WHEELER J MCLURE J | 2/08/05 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | BENNETT & CO (A FIRM) DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Confiscation of property Examination order Freezing order Ex parte application for a freezing order Setting aside freezing order Natural justice Confidentiality orders Injunction restraining solicitors from acting Whether solicitors should be restrained from acting where affidavit disclosed to them in error Operation of secrecy provisions under the Criminal Property Confiscation Act 2000 (WA) Whether s 70 of the Criminal Property Confiscation Act makes affidavits in support of a freezing order application confidential Public interest immunity |
Legislation: | Criminal Property Confiscation Act 2000 (WA) Supreme Court Act 1935 (WA), s 60(1)(f) Rules of the Supreme Court 1971 (WA), O 10, O 58 r 23, O 67 |
Case References: | Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561 Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 Cowan v Stanhill Estates Pty Ltd [1966] VR 604 Director of Public Prosecutions for Western Australia v Gypsy Jokers Motorcycle Club Inc [2005] WASC 61 Giannarelli v Wraith (No 2) (1991) 171 CLR 592 Mansfield v The Director of Public Prosecutions for Western Australia [2005] WASCA 79 Mobil Oil Australia Ltd v Guina [1996] 2 VR 34 Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 1) [2004] WASC 145 Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 2) [2004] WASC 147 Titelius v Public Service Appeal Board (1999) 21 WAR 201 Western Australia v Ward (1997) 76 FCR 492 ANZ Grindlays Bank PLC v Fattah (1991) 4 WAR 296 Commonwealth v Northern Land Council (1991) 30 FCR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BENNETT & CO (A FIRM) -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2005] WASCA 141 CORAM : MALCOLM CJ
- WHEELER J
MCLURE J
- Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ROBERTS-SMITH J
Citation : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BENNETT & CO (A FIRM) [2005] WASC 1
File No : CIV 2335 of 2004
(Page 2)
Catchwords:
Criminal law and procedure - Confiscation of property - Examination order - Freezing order - Ex parte application for a freezing order - Setting aside freezing order - Natural justice - Confidentiality orders - Injunction restraining solicitors from acting - Whether solicitors should be restrained from acting where affidavit disclosed to them in error - Operation of secrecy provisions under the Criminal Property Confiscation Act 2000 (WA) - Whether s 70 of the Criminal Property Confiscation Act makes affidavits in support of a freezing order application confidential - Public interest immunity
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Supreme Court Act 1935 (WA), s 60(1)(f)
Rules of the Supreme Court1971 (WA), O 10, O 58 r 23, O 67
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr M L Bennett & Mr S K Shepherd
Respondent : Mr M Mischin & Ms J Andretich
Solicitors:
Appellant : Bennett & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561
Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1
Cowan v Stanhill Estates Pty Ltd [1966] VR 604
(Page 3)
Director of Public Prosecutions for Western Australia v Gypsy Jokers Motorcycle Club Inc [2005] WASC 61
Giannarelli v Wraith (No 2) (1991) 171 CLR 592
Mansfield v The Director of Public Prosecutions for Western Australia [2005] WASCA 79
Mobil Oil Australia Ltd v Guina [1996] 2 VR 34
Pamplin v Express Newspapers Ltd [1985] 1 WLR 689
Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 1) [2004] WASC 145
Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 2) [2004] WASC 147
Titelius v Public Service Appeal Board (1999) 21 WAR 201
Western Australia v Ward (1997) 76 FCR 492
Case(s) also cited:
ANZ Grindlays Bank PLC v Fattah (1991) 4 WAR 296
Commonwealth v Northern Land Council (1991) 30 FCR 1
(Page 4)
1 JUDGMENT OF THE COURT: This is an appeal against an order of Roberts-Smith J, granting an injunction, on 5 January 2005. The matter has a tortuous history. It arises in the following way.
Background to the appeal
2 In 1998, ASIC commenced an investigation into the conduct of directors and shareholders of the Welcome Stranger Mining Co NL ("Welcome Stranger") and Hallmark Gold NL ("Hallmark"). Investigations are still continuing. One of the directors of Welcome Stranger was arrested in January 2004 and is currently charged with numerous offences. Centurion Trust Co Ltd ("Centurion") is a company registered and domiciled in Jersey, and is the trustee of a trust called the "Gold Coast Trust". It held the legal interest in more than 6,000,000 shares in Welcome Stranger.
3 By notice dated June 1998, ASIC executed orders pursuant to s 73 of the Australian Securities and Investments Commission Act 2001 (Cth) against Centurion and others, restraining it from voting, selling, dealing or otherwise disposing of its interest in those shares. Subsequently, ASIC wrote to Centurion offering to vary those orders for the purpose of allowing Centurion to participate in a buy-back of shares by Welcome Stranger and/or sell its Welcome Stranger shares on the market, on condition that the proceeds of the sale of the shares (less any borrowings) be placed in an interest-bearing ASIC trust account. Orders of those kinds were made.
4 In due course, all Centurion shares in Welcome Stranger were sold and the proceeds were placed in an account styled "ASIC Welcome Stranger Mining Company NL (Trust A/C)". In February 2002, Centurion applied to the Administrative Appeals Tribunal seeking release of those funds on a number of grounds. There were many days of hearing in the AAT, which published reasons for decision on 14 November 2003.
5 On the same day, that is 14 November 2003, Scott J made a freezing order against the funds ("the order"). The order was made as a result of an ex parte notice of originating motion for an examination order and freezing order filed by the DPP in this Court on 13 November 2003, pursuant to the Criminal Property Confiscation Act 2000 (WA) ("the Act").
6 In support of the DPP's applications, there were filed an affidavit of Vicki Anne Prentice, and two affidavits sworn by one "KLP". Both of the latter affidavits are entitled, on the coversheet, "Affidavit of [KLP] in
(Page 5)
- Support of Ex Parte Notice of Originating Motion for Examination Order and Freezing Order". We refer to them collectively as "the affidavit", since the second in time has as its only purpose the correction of minor errors in the first.
7 The applications by the DPP were heard ex parte by Scott J. That procedure was pursuant to s 41(2) and s 57(2) of the Act, which provide that applications for freezing orders and for examination orders may be made ex parte. His Honour also ordered, pursuant to s 42(a), that the freezing order proceedings be heard in a closed court. He did not make an order, as s 42(c) allowed him to do, prohibiting publication of the report of the proceedings or of information derived from the proceedings, and nor did he make any other order prohibiting access to documents used in the proceedings. No such orders were sought.
8 His Honour did make an examination order, with which the Court is not presently now concerned. He also ordered that the funds be frozen. The order reads:
"IT IS ORDERED THAT pursuant to sections 43(1)(b) and 43(3)(b),(c) of the Criminal Property Confiscation Act 2000, money standing to the credit in Westpac Bank account number 36-0916 in the name of 'ASIC Welcome Stranger Mining Company (NL Trust A/C)' and held for Centurion Trust Company Limited as Trustee for the Gold Coast Trust and any and all interest payable on such money is frozen (the 'Property').
ON THE GROUNDS THAT
A. The DPP has applied for an examination order in relation to the Property (s 43(1)(b));
B. the DPP is likely to apply against Smith for:
(a) a crime-used property substitution declaration; and
(b) a criminal benefits declaration;
within 21 days after the Freezing Order is made (s 43(3)(b), (c))."
9 Section 46 of the Act requires that as soon as practicable after a freezing order is made, the applicant must arrange for a copy of it, and a notice complying with s 46(6) of the Act to be served personally on any
(Page 6)
- person who is, or may be, or claims to be, an "interested party". That expression, in relation to frozen property, means "a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property".
10 This statutory procedure is different from that which the Court would normally follow where an order is made ex parte. If an ex parte order were made in the exercise of its general jurisdiction, for example, it would require copies of the papers upon which the order was made to be served on the party affected. The Court's power to make orders of that kind is not expressly excluded, however.
11 Although nothing turns on it in the present matter, we note that the definition of "interested party" is a peculiar one. The point of an objection proceeding is, of course, to obtain the release of the frozen property. If the applicant knows that a person has such an interest in the property and "would … succeed" on an objection, there would appear to be little point in making the application in the first place; at the least, it would seem improper to do so. Presumably, what is intended by the definition is that notice be served on any person who is understood to claim to have, or who may claim to have, an interest of the relevant kind.
12 In any event, the DPP took the view that Centurion was an interested party and on 14 November 2003 faxed to Centurion's solicitors, Bennett & Co, a letter, together with a copy of the freezing order made that morning and of the appropriate notice. The letter indicated that the DPP understood that Bennett & Co had acted for Centurion in relation to other matters and inquired whether they would be acting in relation to this matter. It went on to request Bennett & Co to advise whether Centurion accepted service of the freezing order and whether it would provide a written acknowledgement of service.
13 By letter dated 18 November 2003, Bennett & Co advised the DPP that they had instructions to act for Centurion, but were seeking to ascertain whether the application for the freezing order had been properly instituted, and could not advise Centurion to accept service until they were satisfied that the application had been properly instituted, and the order properly made. They requested details of which person the DPP intended to apply for an examination order against, and which confiscation offences were being alleged against Smith. The DPP advised that that information was not relevant to the issue of service and that so far as the examination order was concerned, s 70(1) of the Act prohibited the disclosure of that information.
(Page 7)
14 As foreshadowed in the order, the DPP filed an application for a crime-used property substitution declaration pursuant to s 22 of the Act and an application for a criminal benefits declaration pursuant to s 16 and s 17 on 4 December 2003, which was within the time provided for by the Act. On 15 December 2003, Centurion filed a notice of motion seeking an order setting aside the freezing order.
15 Although Centurion had filed a notice of motion seeking to set aside the freezing order, there had been no advice from Bennett & Co to the DPP that Centurion actually accepted service of the freezing order. For that reason, the DPP applied to Heenan J for leave to serve a copy of the freezing order and s 46(6) notice on interested parties, including Centurion. A copy of the extracted order was provided to Bennett & Co on 12 January 2004, and on 23 January 2004, the Viscount's Department in Jersey effected personal service of the freezing order on Centurion.
16 On 13 January 2004, Centurion's motion to set aside the freezing order came before Heenan J. His Honour gave directions which included orders that Centurion enter a conditional appearance and serve notice of that on the DPP within 24 hours, and as to the filing and service of affidavits by Centurion and the DPP. The grounds of the motion were that the freezing order was beyond the Court's jurisdiction, in that it purported to have an extraterritorial effect; that it did not fall within any of the categories set out in O 10 of the Rules of the Supreme Court1971 (WA); and/or it was otherwise beyond the statutory jurisdiction conferred on the Court by the Act, in that the property was neither crime-used nor crime-derived, and was not owned or under the effective control of Smith.
17 A conditional appearance was filed on behalf of Centurion on 14 January 2004, and on 15 January 2004, Bennett & Co wrote to the DPP requesting copies of the ex parte application and affidavits in support so as to finalise their submissions. The DPP's reply consisted of a bare three sentences. The first advised that the relevant documents "will not be provided". The second, which appears to have been a justification for the first, read, "The application for the Freezing Order was made ex parte and in a closed court". The third is irrelevant.
18 In our view, for reasons which appear later, the reason given by the DPP did not justify its refusal to provide the affidavit.
19 It appears that there was a telephone conversation between officers of the DPP and the Registry of this Court on 15 January 2004 about whether court documents under the Act would be provided to any person,
(Page 8)
- the tenor of the advice from the Registry being that they would not normally be provided to the general public, but would be provided to those involved in the proceedings. It is said that the DPP officer informed the Registry that the application and the examination order could not be provided to any of the parties because of the provisions of s 70 of the Act. The Registry staff requested a letter to that effect, and, on 16 January 2004, the DPP wrote to the Registry requesting that there be no disclosure in relation to the examination order, the application or the affidavit, referring to s 70.
20 However, also on 16 January 2004, a member of the firm Bennett & Co attended at the Registry to inspect the documents and the file was produced without any restriction. On 20 January 2004, Bennett & Co requested and obtained, on payment of a fee, a copy of the affidavit. A review of the affidavit by a member of that firm for the purpose of preparing submissions revealed that par 599 of it expressed concerns about the release of information contained in the affidavit to Centurion. Bennett & Co therefore wrote to the DPP, advising that they had obtained a copy of the affidavit and had not disclosed any part of its contents to Centurion, and inviting the DPP to make any urgent application which they thought necessary within the next 48 hours. In the interim, Bennett & Co undertook not to disclose the contents of the affidavit.
21 On 23 January 2004, the Acting Principal Registrar wrote to Bennett & Co advising that the copy of the affidavit had been supplied in error and in contravention of the Act. Its return was sought. Bennett & Co did not concede that the provision of the copy of the affidavit was either in error or in contravention of the Act, but, nevertheless, complied with the request for return of the document and voluntarily offered undertakings to the DPP not to disclose the contents of the affidavit, pending an application foreshadowed by the DPP.
22 We pause at this point to note that counsel for the DPP was critical of the conduct of Bennett & Co in obtaining the copy of the affidavit. It was suggested that the appropriate course from the outset would have been for that firm to apply to the Court for an order directing access to the affidavit, if it was considered appropriate. We are unable to understand why this should be so.
23 Inspection of documents filed in the Court (subject to any specific statutory provision) is dealt with by O 67 r 11. It relevantly provides that any person is entitled to inspect and take a copy of documents with the leave of the Court or a Registrar, and permits a party to a cause or matter
(Page 9)
- to search for, inspect and take or bespeak copies of any affidavit or other documents in that cause or matter. It apparently assumes the pre-existing common law right of parties to have access to judicial records: see Titelius v Public Service Appeal Board (1999) 21 WAR 201 at [74] - [87] per Malcolm CJ. "Party" is defined in the Rules to include every person served with notice of a proceeding, although not named on the record.
24 Since Centurion was served as an "interested party" under the Act, and had entered a conditional appearance, it was at least arguable that it was a "party" for the purposes of O 67. Although Roberts-Smith J in due course held that Centurion was not a "party" for the purpose of O 67 (Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 1) [2004] WASC 145 at [108] ("Smith No 1")), it seems to us that it could not be said that Bennett & Co's claim to be entitled to inspection pursuant to O 67 was plainly unreasonable, or to be regarded as having been made in bad faith. When members of that firm became aware of concerns expressed by the deponent about the disclosure of information in the affidavit, they promptly and properly notified the DPP so that any appropriate application could be made, and proffered undertakings. It would be wrong to proceed on the assumption that there was impropriety in the firm's conduct, as parts of the DPP's submission tend to suggest. Indeed, knowing that Centurion wished to have access to the affidavit for the reasons given in the correspondence from Bennett & Co, it would have been open to the DPP to have made an application to the Court had the Director wished to do so.
25 On 30 January 2004, the DPP made an application, heard before Roberts-Smith J, for "confidentiality orders" in respect of the affidavit. It was not heard until 23 March and no reasons were delivered or orders made until 30 June 2004. For that period of five months, the DPP appears to have been content to rely upon the undertakings made by members of Bennett & Co. On 30 June 2004, Roberts-Smith J, in orders which are the subject of separate appeal proceedings, ordered that the affidavit be kept confidential (Smith No 1).
26 On 2 July 2004, the DPP obtained a confiscation order pursuant to s 7 of the Act, which provides for automatic confiscation if no objection is filed within a specified time. On 7 July 2004, Centurion applied to set the confiscation order aside. It also applied to extend time within which to commence objection proceedings in relation to the order. On 21 July 2004, it filed applications for leave to appeal the decision of Roberts-Smith J in Smith No 1, and from another decision of the same
(Page 10)
- date in which Roberts-Smith J dismissed the application to set aside the confiscation order.
27 In August 2004, the DPP wrote to Bennett & Co suggesting that there was a conflict between their duty to the Court (by reason of the confidentiality undertakings) and their duty to Centurion. It appears that Bennett & Co disagreed with this suggestion.
28 It was not until 13 October 2004 that the DPP filed a notice of originating motion seeking the injunction, the subject of the present appeal. No interlocutory relief was sought. On 5 January 2005, Roberts-Smith J granted the injunction sought by the DPP which is the subject of this appeal.
29 The order appealed from restrains Bennett & Co from advising, acting as instructing solicitor or counsel, or appearing as solicitor on the record on behalf of any person, including but not limited to Centurion, in respect of the confiscation of the property which had been the subject of the order, and in any proceedings related to or arising therefrom. In its terms, the order prevented Bennett & Co from acting in the appeal from the confidentiality order. It also would prevent Bennett & Co from acting in the appeals from the decision of Roberts-Smith J refusing to set aside the order, and would prevent Bennett & Co from acting further in relation to the proposed application for extension of time within which to object and application to set aside the confiscation order.
Statutory framework
30 In order to understand his Honour's decision, and the basis of the appeal, it is desirable to give a brief outline of the provisions of the Act as they relate to examination and freezing orders. Broadly, as its long title reflects, the Act is designed to provide for the confiscation of property acquired as the result of criminal activity, or which has been used for criminal activity. Section 4 identifies the kinds of "confiscable" property. It includes property which has been obtained by a person who has been involved in the commission of a "confiscation offence" (which includes an offence punishable by imprisonment for 2 years or more, or any other prescribed offence), property used in or in connection with the commission of a confiscation offence, or property of equal value and property derived directly or indirectly from the commission of a confiscation offence.
31 Section 6 provides that property is confiscated when it is given or taken in satisfaction of a person's liability pursuant to s 14, s 20 or s 24 to
(Page 11)
- pay the amount specified in an unexplained wealth declaration, a criminal benefits declaration or a crime-used property substitution declaration. Section 7 provides for automatic confiscation of certain frozen property.
32 Part 5 Div 2 deals with examinations. It provides that the DPP may apply to the District Court for an order for the examination of a person, which application may be made ex parte. In the present case, the application was made to this Court, presumably pursuant to s 101(1), which provides that this Court has jurisdiction "in any proceedings under this Act". Upon that application being made, the Court may order a person to submit to an examination about a variety of matters, including the nature, location and source of various types of property and the wealth, liabilities and expenditure of the various persons. There are no criteria specified which would guide the Court in deciding whether or not to make an examination order, or what the content of the order might be. Principles governing the exercise of that discretion must therefore be gleaned from the purpose and structure of the Act.
33 Once obtained, the order is served personally on the person to be examined and the examination is to be held in camera, although the person to be examined may be represented by a legal representative. The examination may be a wide-ranging proceeding, and the consequences for the person examined may be severe. The person is not permitted to contravene an examination order on the grounds that complying with it might incriminate them, or might result in confiscation of property, and is not excused from complying with the order on the grounds that complying with it would be in breach of an obligation not to disclose information (even if that obligation arose under statute). If the person to be examined is an owner of frozen property and contravenes the examiner's requirements, the person forfeits the right to file an objection to the confiscation of the property.
34 Part 5 also contains various other investigative procedures. Division 1 facilitates the making of inquiries of financial institutions about property which may be relevant to the various sorts of proceedings envisaged by the Act. Division 3 permits applications for production orders in relation to documents which may assist in identifying or locating property which may be of relevance under the Act and Div 4 permits applications, again ex parte, for monitoring and suspension orders, which are orders which, in effect, may require financial institutions to provide ongoing information about particular types of transactions, and to refrain for a period of 48 hours from completing or effecting transactions.
(Page 12)
35 The various investigative procedures in Pt 5 are then the subject of the secrecy requirements in Div 5 of that Part. Division 5 is of importance in this appeal, and we return to it shortly. It appears plain enough, however, that its purpose is to ensure that a person about whom information is being sought under the various provisions of Pt 5, and the associates of that person, are not "tipped off" about the interest of relevant authorities in his or her affairs. One purpose of that secrecy is to ensure that persons or property the subject of those investigative provisions are not removed from the jurisdiction before appropriate orders can be made. Because of the interaction between examination orders, monitoring orders and suspension orders on the one hand, and freezing orders on the other, the operation of the secrecy provisions will most usually also have the effect that a person in control of property will not be aware that an application for a freezing order is to be made, until such an order has been obtained, thereby ensuring that property is not able to be dealt with (whether by concealment or transfer, for example) in a way which is intended to defeat an anticipated freezing order. However, there is no express prohibition of disclosure of the fact that a freezing or examination order is to be sought, or has been sought; that is, Div 5 deals with existing orders, and not with the possibility (however great) that such orders might be made: Director of Public Prosecutions for Western Australia v Gypsy Jokers Motorcycle Club Inc [2005] WASC 61, at [36].
36 Part 4 is concerned to prevent dealing in confiscable property. In the shorter term, Div 1 permits police officers to seize and retain property for a limited period. Division 2 permits a Justice of the Peace to issue a freezing notice in certain relatively limited circumstances. Division 3 is the relevant division for these proceedings, and s 43 provides that the Court may make a freezing order for property. We consider the detail of that provision later.
The decision(s) appealed from
37 In the present appeal, to which we will turn in a moment, Bennett & Co is the appellant. It should be noted, however, that there are two appeals currently on foot in which Centurion is the appellant. They are as follows.
38 FUL 136 of 2004 is the appeal from what may shortly be described as the "confidentiality order" made by Roberts-Smith J (Smith No 1). The grounds are prolix. They are not easily summarised. However, they include allegations that Centurion was a party to the proceedings and therefore entitled to a copy of the relevant affidavit; that Centurion had a
(Page 13)
- forensic interest in disclosure of the material relied on in support of the order; that the DPP could not rely on affidavits filed in support of the application which had not been disclosed to Centurion; that s 70 of the Act did not prevent disclosure of the affidavit and that the DPP was not entitled to claim public interest immunity in relation to the affidavit.
39 In FUL 137 of 2004, Centurion appeals from the decision of Roberts-Smith J dismissing the application to set aside the freezing order made in Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 2) [2004] WASC 147 ("Smith No 2"). Again, the grounds are unnecessarily lengthy. However, they include the following assertions: that the Court did not have jurisdiction to entertain an application for a freezing order on the grounds that an application for a criminal benefits declaration would be made in circumstances where there was no evidentiary basis for considering that the property was crime-derived; that the Court had no jurisdiction to entertain the application for the freezing order in circumstances where there was no evidentiary basis for considering that the property was the property of the respondent to the proceedings; that the application for the order should not have been made ex parte; that the order invalidly purported to have extraterritorial effect; and that the application to set aside the order should not have proceeded in circumstances where counsel for Centurion did not have access to the affidavit (presumably counsel should be considered not to have had access because of the undertaking which had been given in respect of the affidavit).
40 It can be seen that some of the grounds of the two appeals FUL 136 and 137 of 2004, and the issues raised in those appeals, overlap with the issues raised in the present appeal, which is an appeal from the injunction granted by Roberts-Smith J on 5 January 2005, which restrains Bennett & Co from acting, including precluding them from acting in the two appeals FUL 136 and 137 of 2004.
41 The grounds of the present appeal in summary are as follows. It is asserted that his Honour erred in finding that the appellant was not in any event entitled to production of the affidavit (apparently because they are solicitors on the record for Centurion, which is bound by the order, and because O 67 would entitle them to access). It is asserted that his Honour erred in finding that a claim for public interest immunity could apply to the affidavit, or alternatively that his Honour erred in finding that there was any real and sensible risk that in the course of communications between the appellant and Centurion, the material in the affidavit might be disclosed (given the undertaking and the confidentiality orders made by
(Page 14)
- his Honour). Further, it is submitted that the delay by the respondent should have disentitled it to the grant of an injunction. It is submitted that s 70 of the Act does not make affidavit material relied upon in support of an application for a freezing order generally confidential.
Access to freezing order affidavits
42 It seems to us that the first question which requires examination is whether, as a matter of general principle, Centurion was entitled to have, either itself or through its legal representatives, access to or knowledge of the contents of the affidavit. If it was, then in the ordinary case the confidentiality order should not have been made and the need for an injunction, to protect that confidentiality, would fall away. There are considerations peculiar to the way in which these proceedings have been conducted, which may alter the operation of general principles, with which we will deal later.
43 It appears to us that the answer to the general question posed turns upon the question of whether Centurion was at any relevant time, a "party" to a controversy in relation to which the affidavit was relevant evidence. The term "party" we use in the broad, non-technical, sense of a person having an interest at stake in a proceeding which would enable the person to seek relief. That seems to us to be the relevant question because the fundamental principle to which regard must always be had is as follows:
"Natural justice requires that each party should have an equivalent right to be heard. This means that if one party wishes to place evidence or persuasive material before the tribunal, the other party or parties must have an opportunity to see that material and, if they wish, to submit counter material and, in any event, to address the tribunal about the material. One party may not make secret communications to the court" (emphasis supplied): Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 at 691, see also Giannarelli v Wraith (No 2) (1991) 171 CLR 592 at 605 per McHugh J.
44 Natural justice, in the sense of the opportunity to see the evidence put against a party, is a fundamental aspect of the judicial process: Western Australia v Ward (1997) 76 FCR 492 at 496 - 7. Considerations of this kind led the Queensland Court of Appeal to declare invalid, as incompatible with the judicial power, a provision of the Criminal Proceeds Confiscation Act 2002 (Qld) which commanded the Court to hear and determine certain matters ex parte (as opposed to giving the
(Page 15)
- Court a discretion to do so): Re Criminal Proceeds Confiscation Act 2002[2004] 1 Qd R 40.
45 Of course, it is recognised that there may be circumstances in which it would not be in the interests of justice if a party were personally able to inspect documents which may be relevant to a proceeding involving that party; for example, where the parties are trade competitors and the documents are commercially sensitive. In those cases, it is not unusual for orders to be made confining access to the documents to the party's solicitors, notwithstanding that that course may present some difficulties in the solicitors' conduct of the case: eg, Mobil Oil Australia Ltd v Guina [1996] 2 VR 34. In other cases, there may be reason to restrict access to evidence in other ways as, for example, in Western Australia v Ward where restrictions were based upon the gender of solicitors and counsel. Further, where the statutory framework permits it, the rules of natural justice will be flexible enough, in relation to quasi-judicial tribunals, to permit evidence to be given in the absence of a party, even without permitting the party access to it, for example, where the evidence is properly the subject of a claim for public interest immunity: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. However, in a court of law, such evidence is simply not admissible: Re Pochi at 274.
46 There is nothing in the Act which purports to exclude the very basic rule of natural justice to which we have referred. If it did, questions of validity such as those raised in Re Criminal Proceeds Confiscation Act 2002 might arise.
47 The question which then arises is that of the relevance of the affidavit to any proceedings against or by Centurion. The sections of the Act which grounded the order in this case are s 43(1)(b) and s 43(3)(b) and (c). Those provisions are as follows:
"43. Freezing orders
(1) The court may make a freezing order for property if -
…
(b) the DPP advises the court that an application for an examination order, a monitoring order or a suspension order has been made in relation to the property, or is likely to be made in relation to the
- property within 21 days after the freezing order is made.
- …
(3) The court may make a freezing order for all or any property that is owned or effectively controlled by the person or that the person has at any time given away if -
…
(b) an application has been made against the person for an unexplained wealth declaration, criminal benefits declaration, crime-used property substitution declaration or production order; or
(c) the DPP advises the court that such an application is likely to be made within 21 days after the freezing order is made."
49 So far as the structure of the Act is concerned, some provisions make it clear that, in some circumstances, there is no discretion; for example, in s 30(2) the Court is directed that it "must" make orders if certain conditions are satisfied. Not only do the subsections of s 43 to which we have referred, by contrast, use the expression "may", but in addition subs (4) of that section provides that the Court "is not to refuse to make a freezing order … under subsection (3) only because the value of the property exceeds [an amount which a person could be liable to pay under other sections]". That subsection therefore tends to suggest that under some circumstances the Court may refuse to make such an order.
50 Importantly, however, it seems to us that, as a matter of principle, the Court must have a discretion. The freezing order is draconian in its scope. It may prohibit a person from dealing with all of that person's property. Once properly made, it comes to an end only under the relatively limited circumstances described in s 49, or if set aside pursuant to a successful objection (with the objection provisions being limited in scope and casting
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- the onus onto the objector). It seems unlikely therefore that it was intended, for example, that the Court would be required to make such an order merely because the DPP had advised the Court that an application for an examination order was likely to be made, even if there was no material before the Court which suggested the grounds upon which such an examination order might be sought, so as to enable the Court to consider whether any such application would be bona fide or would be made on reasonable grounds having any arguable prospect of success.
51 To summarise the position so far, then, if Centurion had a relevant interest in the frozen property, natural justice would require that Centurion be able at some stage to adduce evidence and make submissions affecting the exercise of the discretion which the Act grants to the Court as to whether or not to freeze that property. We turn in a moment to the question of how that might be done. However, as we have noted, in each case one question will be whether a person or entity has a relevant interest in the property to be frozen.
52 When one examines the provisions dealing with freezing orders, it is to be noted that the orders are made in relation to property, rather than in relation to persons. While examination orders specifically name persons, they, too, appear to be principally concerned with property, in that the orders for which s 58 provides are orders that a person submit to an examination in relation to property (being either property which is frozen, or property which is comprised in the description of the "wealth, liabilities, income and expenditure" of a nominated person). Difficult questions may arise in establishing at a relatively early stage whether a person has a sufficient interest in nominated property, so as to enable that person as a matter of natural justice access to documents relevant to the freezing order. In a statutory context in which it is likely that the evidence upon which the grant of a freezing order is based may contain sensitive details about the commercial transactions of individuals, and about the inquiries and operations of law enforcement agencies, it would be undesirable for persons who have no genuine or significant interest to protect to be permitted to consider such material.
53 In the present case, however, so far as Centurion is concerned, it appears to be beyond doubt that Centurion would have a relevant interest in the frozen property. That property is expressly described in the freezing order as property "held for Centurion Trust Company Limited as Trustee … ", so that it is plain that the DPP concedes that Centurion has at least an interest in the property as trustee.
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54 The question then arises in the context of the Act as to how Centurion is able to exercise that right to participate in proceedings affecting its property which natural justice would require it to have.
55 There are potentially four ways in which that participation might take place. First, although s 41 of the Act provides that applications for freezing orders may be made ex parte, the DPP might in a particular case make the application on notice. There may, however, often be occasions on which that course is not desirable. Next, it is arguable that an appeal lies against the imposition of a freezing order pursuant to s 60(1)(f) of the Supreme Court Act1935 (WA). The question of whether such an appeal lies was not argued before us, although in Director of Public Prosecutions for Western Australia v Gypsy Jokers Motorcycle Club Inc, Templeman J expressed the view that such an appeal might well lie. In relation to orders made ex parte, O 58 r 23 provides that the Court may set aside any order which has been made ex parte. Finally, there are provisions in the Act which provide for a party to object to confiscation of frozen property and for the Court to set aside the freezing order at the instance of the objector.
56 It is the submission of the DPP, that the operation of O 58 is impliedly excluded by the scheme of the Act. As we understand it, the submission is that an examination of the statutory scheme reveals that it is only by the use of the objection procedures, or by the operation of s 49 of the Act, that a freezing order, once made, may be brought to an end. The significance of that submission is that the nature of those provisions is such that the affidavit would not necessarily be of relevance to them, so that Centurion would not be entitled to access to it. That is because s 49 is, broadly, not dependent upon any evidence for its operation, while in relation to the objection proceedings, the onus is on the objector. In the latter type of proceedings, then, it would be for the objector to adduce evidence going to the matters set out in those sections, and the DPP would only adduce evidence of matters which might include matters contained in the affidavit if it considered it necessary to do so to rebut evidentiary material from the objector.
57 In order to consider the submission as to the statutory scheme, it is necessary to look in some little detail at s 49 and at the objection proceedings. Section 49 deals with the way in which freezing orders may come to an end in respect of property other than registrable real property. Section 48 makes similar provision for registrable real property, but is, of course, not relevant to the present appeal. Section 49 provides that if a freezing order is made pursuant to s 43(1) on the basis that an application
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- for another order has been, or is likely to be, made, the freezing order stops being in force once one of the matters set out in s 49(2)(a) - (e) occurs. Those circumstances, broadly summarised, are if an application for the order foreshadowed is not made or is withdrawn or refused, or if the freezing order is set aside at the request of the applicant, or set aside in "proceedings on an objection", or if the property is confiscated. Oddly, what is not dealt with in the statutory scheme so far as we can see is the situation where, for example, an examination order is made and either the examination is completed with no further step then being taken by the applicant, or the examination reveals nothing about the property which could justify any further application under the Act. In that situation, the applicant for the freezing order might well make an application to set it aside, but it surely was not intended that the owner of the property was to rely upon the goodwill of the applicant in that respect. In any event, for present purposes, it is enough to note that s 49 is broadly concerned with changes in circumstances subsequent to the granting of a freezing order pursuant to s 43(1), and provides no avenue for exploring the anterior question of whether the discretion to grant the order in the first place was properly exercised.
58 Turning to the objection procedures, s 79 provides that a person may file an objection to the confiscation of frozen property. It is to be noted, then, that the objection procedure has, at its heart, a concern with the ultimate question of whether certain property should be confiscated, rather than being concerned with the question of whether the property should be or remain frozen. Freezing orders, of course, prohibit dealing with frozen property for what may be very substantial periods of time, during which a variety of steps directed towards ultimate confiscation procedures may be taken under the Act. Freezing orders are a very significant interference with the rights of all those having an interest in the frozen property, even if that property is not ultimately confiscated.
59 Section 81(1) provides that, on hearing an objection to the confiscation of frozen property, the Court may set aside a freezing order "to the extent permitted under section 82, 83 or 84". Subsection (2) provides, however, that if the property was frozen on two or more grounds, but the order is not set aside in relation to "both or all the grounds", the order continues in force as if made on each remaining ground. On its face, s 81 would then appear to be concerned with the question of whether it is appropriate for property to remain frozen on the particular ground set out in the freezing order. However, an examination of ss 82 - 84 reveals that they are not concerned with the question of whether the orders were properly made. Rather, they assume that the
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- orders were properly made, and prescribe very limited circumstances in which the objector may persuade the Court that the orders should be set aside.
60 In relation to the particular grounds upon which the property was frozen in this case, s 84 provides that a Court may set aside a freezing order for property frozen under s 43(3) if the Court finds that it was more likely than not that the person who is or will be the respondent to the crime-used property substitution declaration "does not own or effectively control the property, and has not at any time given it away". "Effective control" refers not just to the legal estate in the property, but to any direct or indirect control or ultimate beneficial ownership. The matters to be considered in determining whether there is effective control of property are very widely stated. On its face, s 84 is the only objection provision which applies expressly to orders made pursuant to s 43(3).
61 Section 83 is headed "Release of crime-derived property" and appears to be directed only to the setting aside of orders where property was frozen on the ground that it was "crime-derived". Section 82 is headed "Release of crime-used property". Subsections (1) and (2) of that section are clearly directed only to property frozen on the ground that it was crime-used. Subsections (3) and (4) do not, on their face, refer to crime-used property. However, pursuant to those subsections, one of the things which the objector must establish is that it is more likely than not that the objector is an "innocent party" in relation to the property. "Innocent party" is defined by s 153, subss (1) - (3) of which refer to a person being an innocent party in relation to "crime-used property" in certain circumstances, while subs (4) refers to a person being an innocent party in relation to "crime-derived property". It can be seen, then, that an objector is only able to establish that they fall within the definition of "innocent party" where the property is either crime-used or crime-derived. At the time of the making of a freezing order pursuant to s 43(3)(c) or s 43(1)(b), it will not have been established (and it may never be established) that the property is either crime-used or crime-derived. It would appear, then, that only s 84 deals with the setting aside of orders freezing property made pursuant to s 43(3)(b) or (c). It also appears that none of the objection procedures are apt to deal with property frozen pursuant to s 43(1)(b), notwithstanding that s 49(2)(d) expressly appears to contemplate such orders being set aside "in proceedings on an objection".
62 It is our view that the objection procedure is not intended either to exclude or to be a substitute for the ability of a person whose property is
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- affected by a freezing order to participate in the proceeding by which the order comes to be made (either on notice in the original application, or by being enabled to make application pursuant to O 58 r 23). That is because the objection provisions do not expressly purport to be exclusive of other means of challenging freezing orders; because it appears the objection provisions are predicated on the assumption that a freezing order has been properly made; because s 79 suggests that the objection provisions are directed more to the question of whether property should ultimately be confiscated, rather than to whether it should be frozen; and because, given the limited scope of the objection procedure and the onus on the objector, it would not readily be assumed that those provisions were intended to substitute for the much broader rights which the principles of natural justice would afford a person with an interest in frozen property.
63 We note that, in Smith No 2, Roberts-Smith J held that it was not open to Centurion to apply pursuant to O 58 r 23 in the circumstances before him. However, that finding appears to turn upon the nature of the arguments advanced in that case by Centurion. That is, his Honour formed the view that the matters which Centurion sought to agitate (including whether the property was crime-used, and whether it was in the ownership of Smith) were the very matters with which the objection provisions were concerned. His Honour therefore considered that it would circumvent the statutory scheme to allow Centurion to challenge, by application to set aside the ex parte order, those particular matters. We assume for the present that that finding is correct. It was an issue which, because of the way in which the matters came to be argued before us, has not been the subject of full argument. However, even making that assumption, his Honour was not, as we understand him, expressing the view that it would never be open to an owner of property to apply to set aside a freezing order made ex parte in respect of that property.
64 Leaving aside for the present the particular matters raised by Centurion before Roberts-Smith J, then, and turning rather to questions of general principle, ex parte orders may be set aside if it is demonstrated that there was material non-disclosure, or that on the basis of new material the full facts and circumstances had not been appreciated, or that the order was made without jurisdiction: Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561. If it was open to Centurion to apply to have the order set aside on the basis of either material non-disclosure, or on the basis that there were additional materials to which the Court was not directed at the time at which the order was made, it follows that Centurion must, in order to be able to make such an application effectively, know what material was disclosed to the Court at the time of the making of the
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- order, so as to be able to point to any relevant omissions or to provide material to dispute or correct any assertions which it considered required disputing or correcting.
65 As we have noted, in some cases difficult questions might arise as to whether a party truly has an interest in the property which would justify it in bringing such an application and, hence, in having access to the evidence which was put before the Judge ex parte, but no such question appears to arise in this case. Further, questions might arise as to whether it is appropriate that a party personally have access to the material, or whether there should be some restriction of the material to, for example, nominated solicitors. However, that also is not in issue in this case. The only question in this appeal is whether the solicitors should be restrained from acting on the basis that the affidavit should not have been disclosed to them. In principle, in the absence of any order to the contrary, they were entitled to see it for the reasons which we have described.
The affidavit as grounds for the freezing order
66 The foregoing conclusions are based upon the assumption that the affidavit was one which provided the basis for the making of the freezing order. That is plainly the case, since the affidavit was entitled "in support of" both the freezing order and the examination order. However, there are two issues relating to the content of the affidavit which should be noted. One is a submission that, despite its title, the affidavit was really not of relevance to the freezing order. The second issue is that the affidavit may have contained material which was not of relevance to the freezing order, together with material which may have been.
67 The first argument, as we understand it, is based upon the proposition that all that is necessary to be established pursuant to s 43(1)(b) is that the DPP advised the Court that such an application has been made, or is likely to be made. However, as we have noted earlier, it seems to us that the better view is that there is a discretion in relation to the making of a freezing order. So much of the affidavit would be relevant to s 43(1)(b), then, as was relevant, for example, to questions of whether the foreshadowed application was bona fide likely to be made, and whether there were grounds for believing that the foreshadowed application had some prospect of success. Further, there were two grounds upon which the order was made. The second, pursuant to s 43(3), related to an application which it was said would shortly be made against Smith. Again, it seems to us that there is a discretion and that so much of the affidavit would be relevant as suggested that that foreshadowed
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- application would be made bona fide and was likely to have some prospect of success. The Court, in making that assessment, of course, would be aware that its assessment was only a provisional one and that more material might emerge, for example after an examination, relevant to such an application.
68 It is, of course, possible that, since the affidavit was tendered for two purposes, portions of it may be irrelevant to the making of the order and may be severable. Those may be portions in which Centurion would therefore have no relevant interest, and may be portions which it is undesirable should be disseminated any more widely than strictly necessary, because, for example, they may reveal the investigative activities of law enforcement agencies. However, the argument before us did not proceed on this basis. That is, no particular portions of the affidavit were identified as being severable in that way. Rather, as we understood the respondent's argument, it wished to contend only for the proposition that Centurion was not entitled to any of the material in the affidavit and that the confidentiality order, and consequent injunction, should be upheld on that basis.
Section 70
69 The respondent also submits, however, that s 70 precludes disclosure of the material in the affidavit to any person, and that there is no exception for disclosure which is required in the interests of natural justice.
70 Section 70 relevantly provides:
"70. Restricted disclosures
(1) A person must not make a disclosure to anyone, except as permitted under section 71, about —
(a) the fact that a financial institution, or an officer of a financial institution, intends to give or has given information to the DPP under section 53;
(b) the nature of any information given under section 53;
(c) the fact that a requirement or a response to it has been or is to be made under section 54;
(d) the content of a requirement or response made under section 54;
- (e) the fact that the person or anyone else is or has been subject to a production order, an examination order, a monitoring order or a suspension order; or
(f) the contents of any examination order, production order, monitoring order or suspension order.
- Penalty: $100 000, or imprisonment for 5 years, or both.
(2) Without limiting subsection (1), a person makes a disclosure for the purposes of the subsection if the person —
(a) discloses information to a person from which the person could reasonably be expected to infer that a requirement or response under section 54 has been or is to be made;
(b) discloses information to a person from which the person could reasonably be expected to infer anything about the nature or contents of a requirement or response under section 54;
(c) makes or keeps a record of any information about a requirement or response under section 54;
(d) discloses anything about the existence or operation of an examination order, a production order, a monitoring order or a suspension order;
(e) discloses information to a person from which the person could reasonably be expected to infer anything about the existence or operation of an examination order, a production order, a monitoring order or a suspension order; or
(f) makes or keeps a record of any information about the existence or operation of an examination order, a production order, a monitoring order or a suspension order."
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- parts of the division, and to a legal practitioner for the purpose of obtaining legal advice or representation in relation to certain of the requirements which may be made under that Act. Section 72 provides that "[a] person is not required to make a restricted disclosure to any court for any purpose".
72 There is a question as to the relevance of s 70 to the disclosure which actually occurred in this case, being the provision of the affidavit by the Court. Section 70 prohibits disclosure by "a person". It prohibits disclosure to "anyone", which expression we would understand as being synonymous with "any person". Although there is no binding authority directly on point, those cases in which the matter has been considered all seem to take the view that, in the absence of a statutory indication to the contrary, "a person" in a context such as this will not include a Court: Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, Cowan v Stanhill Estates Pty Ltd [1966] VR 604 (and cases there cited).
73 However, we accept that if s 70 does prohibit the disclosure of material contained in an affidavit filed in support of an application for a freezing order, at least in some circumstances, then that statutory prohibition would have to be given its full effect (subject to any questions of constitutional validity, which were not agitated in this case).
74 On its face, so far as it affects examination orders, s 70 is quite broad. Not only is a person not to make disclosure to anyone about the fact that the person, or anyone else, has been subject to an examination order, or about the contents of any such order, but a person is, by subs (2), also not to disclose anything about the "existence or operation" of an examination order, or information "from which the person could reasonably be expected to infer anything about the existence or operation of an examination order".
75 We would accept the respondent's argument that subs (2) is, in effect, although not in the usual form, a partial definition section, defining what it means to "make a disclosure". It defines "disclosure" in a broad way to include the disclosure of information which could lead to an inference in relation to matters dealt with under subs (1). Even accepting the section's breadth, it does not seem to us that it applies as broadly as the respondent suggests in the present case. As Templeman J pointed out in the Gypsy Jokers case, it does not refer to disclosure of any intended application for an examination order; this is perhaps surprising, since it appears that, as we have already indicated, the primary purpose of the section is to ensure that persons the subject of investigations are not "tipped off" about those
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- investigations before formal orders are sought (see Parliamentary Debates, Legislative Assembly, 18 October 2000, page 2316, Mr Prince MLA). It cannot be intended to prohibit disclosure to the person from whom the property was taken, or to an interested party, of the fact that an examination order in respect of property was or may be made, since s 46 requires the service upon such a person of a copy of the order which, pursuant to s 44, must contain the grounds upon which the order was made.
76 Importantly, it does not in terms prohibit the disclosure of material relied upon to support an application for an examination order. Depending upon the particular content of that material, and upon the way in which it was put before the Court, one can see that the disclosure of such material might, in some circumstances, lead to an inference that an examination order of a particular kind, or having a particular operation, was in existence. However, it is to be noted that subs (2) refers to the disclosure of information "about" the examination order, or from which a person could "reasonably" be expected to infer anything about such an order. It does not extend to material which might lead to speculation. Rather, it appears to be restricted to material which would lead to an inference that a particular type of examination order (for example, one directed to a particular person) and/or having a particular type of operation (for example, requiring a person to give particular documents to a Court pursuant to s 58(2)(a)) was in existence.
77 At a number of points, the submissions of the respondent rather suggested that the respondent took the view that s 70 protected from disclosure all examinations and inquiries which the relevant investigative bodies and agencies might have undertaken, provided only that those matters were referred to in support of the application for the examination order. That is a misreading both of the express terms, and of the purpose, of s 70. It was intended, as we have noted, to prevent the premature disclosure to certain persons of the fact that certain investigations were in place. It was not, however, intended to make it impossible for a party to understand why an order had been made in respect of that party's property, or to contest such an order.
78 Because of the very general way in which the argument proceeded in this case, and the breadth of the interpretation of s 70 contended for by the respondent, it was not necessary for the Court to determine the way in which s 70 might operate in relation to the particular circumstances of this affidavit. However, it appears to us that there may well be some material in the affidavit disclosure of which would be contrary to s 70. That is
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- particularly so, since it appeared clear from the submissions on behalf of the respondent that it was never contemplated that the DPP would be required to disclose any portion of the affidavit to any person, and so the affidavit was, no doubt, drafted without any specific reference to s 70. However, even if that is so, it does not require that the entirety of the affidavit be withheld from Centurion or from its solicitors. Rather, it would be a reason for portions of the affidavit to be excised, so that the DPP could serve an edited copy upon Centurion's solicitors without contravening s 70.
The course of proceedings in this case
79 Discussion of relevant legal issues concerning access by Bennett & Co has, so far, been at the level of principle. That is, we have endeavoured to explain why it was that, once the order had been made ex parte, and Centurion had decided to apply to set aside that order, it would in the normal course have been appropriate for the Court to have ordered that at least a legal representative of Centurion have access to that affidavit or to a significant part of it. Once that conclusion is reached, it in our view follows that the confidentiality order was erroneously made, and that the injunction, which relied upon the same reasoning, should be discharged.
80 However, having regard to the various applications which have been made since the affidavit was first obtained by Bennett & Co, it appears it has not been submitted that, in the particular circumstances of this case, Centurion or its solicitors would require access to the affidavit for any forensic purpose, save for the purpose of demonstrating, in the appeal FUL 137, that it contained no material relevant to the operation of O 10. That being so, in a practical sense, the rules of natural justice would not require that Bennett & Co have access to that affidavit, provided only that there was some appropriate concession on the part of the DPP either to the effect that nothing in the affidavit was relevant to the operation of O 10, or that the DPP did not rely upon O 10 in order to effect valid service on Centurion in any event.
81 Further, it seems from the submissions made that, when the affidavit was drafted, it was drafted in the particular form which it took because the DPP had erroneously formed the view that it would not be disclosed other than to the Court under any circumstances. It may well therefore, as we have noted, contain some matters protected from disclosure by s 70. It also may well contain, as Roberts-Smith J found it did, matters which would be the subject of public interest immunity. Those matters no doubt
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- would not have been included in the affidavit had there been a proper understanding of the DPP's potential obligation to make it available in some circumstances to interested parties.
82 Because of the course which argument in this appeal took, no submissions have been made to us as to whether there are in the affidavit specific matters which would be protected from disclosure upon the construction of s 70 to which we have referred, or by reason of public interest immunity, and which would have been excised from the affidavit had there been a proper understanding of the DPP's potential obligation to make it available to interested parties. Should there be such material, a question might arise as to whether, having seen it (albeit without any fault on the part of that firm) Bennett & Co should be restrained from acting for Centurion in some circumstances.
83 However, this appeal was argued primarily in the context of Bennett & Co's wish to represent Centurion in the two appeals which we have already described, and in the application for an extension of time within which to object. In relation to those matters, the position seems to us to be as follows. It may be that it is undesirable in the interests of justice for Bennett & Co to be permitted to communicate to Centurion the contents of the affidavit. As we understand it, Bennett & Co are content to maintain the undertakings which have been given not to disclose the contents of the affidavit, provided the issue relating to O 10 can be dealt with appropriately. The foreshadowed appeals and application are relatively limited in scope. We would take the view that, given that undertaking, and given the protection which s 70 may afford to some of the material in the affidavit, there would not be any risk of unconscious disclosure, during the course of taking instructions, of material obtained from the affidavit.
84 We are fortified in that conclusion by the very long period which elapsed between the application for confidentiality orders in January 2004 and the application for the injunction in October of 2004. During that period Bennett & Co continued to act in relation to the matter the subject of FUL 137, and in making its application to extend time within which to commence objection proceedings. One would have thought that those proceedings could well have raised issues to which the contents of the affidavit might be relevant, and for the whole of that period it seems that the DPP was content to rely upon the undertakings which had been given. If the public interest was not harmed by Bennett & Co acting before Roberts-Smith J in those matters, we are unable to see how it would be harmed by that firm acting in relation to the appeals from those decisions.
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85 Further, it does not seem to us that it is appropriate to impose any restraint by way of injunction upon Bennett & Co at present, merely in case there should be some material in the affidavit which should not have been disclosed to them under the principles which we have discussed, and which might unconsciously be disclosed in some further proceedings by or against Centurion. It seems to us that the appropriate course in this appeal is to allow the appeal, and to discharge the injunction.
86 The reasons in this appeal dispose of some, but by no means all of the issues raised in FUL 136 and 137, and it would be appropriate, in our view, to direct the parties to confer about the future progress of those appeals, with a view to settling them if they can be settled, or to narrowing the issues in the light of these reasons.
87 If there should be any particular material in the affidavit to which Bennett & Co would not have been entitled under the principles of natural justice which we have discussed, and which it would be very injurious to the public interest to have disclosed to a particular person or persons, it will be for the DPP to identify that material and to make application to this Court in respect of it if necessary. In case there should be such material, it seems to us that it is appropriate that the undertakings given by members of the firm of Bennett & Co should remain on foot. It would, of course, be open to any of the persons who have given undertakings to apply to be released from them should some need for that course arise.
464
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3