Commissioner of the Australian Federal Police v Goldfinger Bullion Reserve Corporation [No 2]
[2013] WASC 16
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -v- GOLDFINGER BULLION RESERVE CORPORATION [No 2] [2013] WASC 16
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 16 | |
| Case No: | CIV:2545/2010 | 26 OCTOBER 2012 | |
| Coram: | ALLANSON J | 25/01/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE GOLDFINGER BULLION RESERVE CORPORATION GOLDFINGER COIN & BULLION INC JAMES FAYED DESIREE GOUDIE As Administrator of The Estate of the Late PAMELA FAYED |
Catchwords: | Courts Practice and procedure Application to amend orders Slip rule Exchange rate Turns on own facts |
Legislation: | Nil |
Case References: | Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 Milson v Carter (1893) AC 638 Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
Quantity of gold and silver bullion and a sum of money standing to the credit of an account with Gold Corporation (trading as the Perth Mint) styled Goldfinger Bullion Reserve Corporation Account SEC579
- Plaintiff
AND
GOLDFINGER BULLION RESERVE CORPORATION
First Defendant
GOLDFINGER COIN & BULLION INC
Second Defendant
JAMES FAYED
Third Defendant
- DESIREE GOUDIE As Administrator of The Estate of the Late PAMELA FAYED
Fourth Defendant
Catchwords:
Courts - Practice and procedure - Application to amend orders - Slip rule - Exchange rate - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr G D Cobby
First Defendant : Mr E M Heenan
Second Defendant : Mr E M Heenan
Third Defendant : Mr E M Heenan
Fourth Defendant : Mr E M Heenan
Solicitors:
Plaintiff : Director of Public Prosecutions (Cth)
First Defendant : Corboy Legal
Second Defendant : Corboy Legal
Third Defendant : Corboy Legal
Fourth Defendant : Corboy Legal
(Page 3)
Case(s) referred to in judgment(s):
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590
Milson v Carter (1893) AC 638
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
(Page 4)
1 ALLANSON J: On 7 October 2010, I made orders pursuant to s 19 of the Proceeds of Crime Act 2002 (Cth) restraining any person from disposing of or dealing with a quantity of gold and silver bullion and a sum of money standing to the credit of an account with the Gold Corporation. The account was in the name of Goldfinger Bullion Reserve Corporation. The orders were made on the basis that there were reasonable grounds to suspect that the property was the proceeds of a foreign indictable offence.
2 The application was made by the Commonwealth Director of Public Prosecutions. Later, the Commission of the Australian Federal Police was substituted as the plaintiff.
3 The original orders were made ex parte. Since then four respondents have become parties to the application, including Mr James Fayed and the administrator of the estate of his late wife, Ms Pamela Fayed. The respondents are all in the United States of America. They were represented by a Western Australian legal practitioner in these proceedings.
4 By late 2012, the parties had advised the court that the matter was likely to settle. On 4 July 2012 I made consent orders under which the Gold Corporation was required to immediately liquidate all metal bullion and United States dollars held in the Goldfinger account into Australian dollars. On 23 July 2012 the parties consented to judgment pursuant to s 316 of the Proceeds of Crime Act. Under that section the court may, with the consent of the applicant and everyone whom the court has reason to believe would be affected by the order, make an order 'without consideration of the matters that the court would otherwise consider in the proceeding'.
5 The consent orders provided:
1. Pursuant to section 29(1) of the Act, the Australian dollar sum equivalent, at the time of service of this order upon the Gold Corporation (trading as the Perth Mint) (the Perth Mint), to $5,100,000 United States Dollars is excluded from the operation of the restraining order.
2. The Perth Mint is directed to pay the Australian dollar sum referred to in paragraph 1 above out of the account styled Goldfinger Bullion Reserve Corporation Account SEC 579 (Account) to the respondents, by depositing the sum into the account of [the solicitors for the respondents].
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- 3. Pursuant to section 49 of the Act the balance of the funds remaining in the Account (after the payment of funds pursuant to paragraph 2 above) is forfeited to the Commonwealth of Australia (the forfeited sum).
4. The Perth Mint is directed to:
a. pay the forfeited sum to the Commonwealth of Australia in Australian dollars by depositing the forfeited sum into the following bank account (details specified);
b. provide to the Insolvency and Trustee Service Australia acting on behalf of the Official Trustee in Bankruptcy a statement of transactions made on the Account from 1 July 2012 to the date of the payment referred to immediately above.
7 The respondents have now applied to the court to vary the orders, so that order 1 specifies an exchange rate of 1.0154 United States Dollars to each Australian Dollar, resulting in an amount of $AUD5,022,651.12. They seek a further order that the Commonwealth pay the respondents the balance of $AUD73,597.26 between the amount already paid and the amount calculated under the specified rate.
8 The Commonwealth was notified of the application and advised the court that it would abide the outcome.
9 The reason for the application is that:
1. The sum of $AUD4,949,053.86 was received into the trust account of the solicitor for the respondents on 24 July 2012.
2. The best rate of exchange available to the solicitor for the respondents from the bank at which that account was held, when applied to the funds received, produced an amount of $US5,025,127.05. That is, the received funds were $US74,872.95 short of the amount of $US5.1 million.
10 The discrepancy arose because the exchange rate applied by the Perth Mint differed from the 'bank sell rate' which could be obtained at the bank into which the funds were paid. When the solicitor for the respondents sought to transfer the money to the United States he was advised that the conversion rate was trending downwards, and the shortfall could become larger if that trend continued.
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11 The court has the power, both under O 21 r 10 of the Rules of the Supreme Court 1971 (WA) (the slip rule) and the court's inherent jurisdiction, to correct errors in judgments or orders which arise from an accidental slip or omission.
12 The respondents also submitted that the order of the court was ambiguous concerning the exchange rate to be applied by the Perth Mint in the implementation of order 1, and that the ambiguity was an oversight which should be corrected so as to specify the exchange rate to be applied by the Perth Mint in carrying out the order. I am not satisfied that the order is ambiguous. The parties required the Perth Mint to pay the Australian dollar sum equivalent of $US5.1 million. No rate of exchange was specified, but the objective intention of the parties was that the Perth Mint should apply the rate at which it would exchange United States and Australian currency.
13 The orders have been formally recorded. The general rule is that a superior court of record, in the absence of a statutory provision, and subject to certain narrow exceptions, may not reopen an extracted order. This rule is underpinned by a central and pervading tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 [34]; Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 [15].
14 The slip rule in O 21 r 10 of the Rules of the Supreme Court is one of the exceptions. The rule reflects the inherent jurisdiction of a court 'at any time to correct an error in a decree or order arising from a slip or accidental omission', regardless of whether the order has been drawn up, passed and entered: see Milson v Carter (1893) AC 638, 640. It applies where the mistake or error is the result of inadvertence by a party's legal representative: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590, 594. But it is a power to correct a mistake. The correction should be such that had the matter been drawn to the court's attention at the time, the correction would have been made at once: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446. Where the proposed correction would alter the substance of an order in a matter on which there might be a real difference of opinion, the rule does not apply.
15 The orders which were made are not orders in favour of one party. They are different from an order determining the amount to be received as proper compensation for a loss, or determining an amount owing. The
(Page 7)
- orders were, in a sense, bilateral, forfeiting to the Commonwealth the property restrained by the orders made in October 2010, while excluding from that forfeiture a specified amount. The objective intent of the orders cannot be expressed only in terms of the benefit to one party. They provide that the respondents receive the Australian dollar equivalent of the sum of $US5.1 million. But it is equally the objective intent of the orders that the Commonwealth receive a sum representing the conversion of the property into Australian dollars, less that amount.
16 In an agreement involving a foreign currency, one party may benefit or be prejudiced by movement in the exchange rate, or by a difference between the exchange rate chosen (or the method of determining the exchange rate) and the actual rate at which it can effect a transfer of funds. The respondents could not transfer currency to the United States at the same rate at which the Perth Mint converted the currency. That was a possibility that was inherent in the agreement they made. Correction of the order, in the manner suggested, is not necessary to avoid an injustice to the respondents. And the correction would alter the agreement, objectively construed, made by the parties and recorded in the orders.
17 In my opinion, this is not a matter which comes within the slip rule. If I am wrong, and have power to act, I would not, in the exercise of my discretion, exercise the power because it is not simply a matter of correcting an omission or oversight in an order of the court, but varying the terms of the agreement made by the parties.
18 The submissions of the respondents in support of the application went further. Counsel submitted that the objective intention of the parties, on a proper construction of the terms of the consent judgment, was that the respondents should receive the benefit of the equivalent of $US5.1 million 'so that $US5.1 million could be remitted by the respondents' Australian solicitor to their agents in the United States'. In effect, as an alternative, the respondents did not ask for the order to be corrected but enforced in accordance with this construction.
19 This argument does not properly arise on the chamber summons. My preliminary response is that the orders made do not bear that construction. But I do not believe that it is appropriate to determine the questions raised in this submission, particularly when the Perth Mint is not a party and has not been given the opportunity to be heard.
20 The application to amend the orders is dismissed.
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