Commonwealth Director of Public Prosecutions v. Phillips

[2009] QDC 42

[2009] QDC 42

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2344 of 2008

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
and
LAWRENCE JAMES PHILLIPS	Respondent

BRISBANE

..DATE 29/01/2009

ORDER

CATCHWORDS:  Application for a pecuniary penalty against a convicted offender set down for hearing, given failure of respondent to file within times allowed by earlier directions (or at all) response material or foreshadowed material relating to challenge to the admissibility of the applicant's evidence.

HIS HONOUR:  This is a mention of an application brought by the Commonwealth Director of Public Prosecutions seeking the imposition of a pecuniary penalty.  The respondent, for his offending which was by way of running an investment scheme unlawfully, has served the custody to which he was sentenced.

At bottom the idea of the pecuniary penalty is to divest the respondent of his ill-gotten gains.  A financial expert who scrutinised the evidence which was given in the underlying criminal proceeding has made an estimate that a sum of $400,000 or so is the appropriate one for Mr Phillips.  The calculation had to take account of factors such as his not being the only person who gained from the unlawful management investment scheme.

There's been a series of orders made by consent in the Court's management of this proceeding.  The first was on the 23rd of September 2008 by Judge McGill, a consent order when Mr Phillips was represented by a person called Wallice,, according to the Court's order sheet.  A hearing date of 23rd September 2008 had been fixed for the hearing of the pecuniary penalty application which was filed on the 29th of August 2008.  A mention was listed for 10 a.m. on the 4th of November 2008.  The respondent was required to file and serve on the applicant any material intended to be relied on in response to the application no later than 4 p.m. on 21st of October 2008.

...

The matter next came before the Registrar who made a consent order under rule 666 on the basis of signatures of lawyers on both sides adjourning the pecuniary penalty application to the 17th of December 2008 for mention.  The respondent was required to file and serve any response material by the 11th of December 2008, the date of that order being 30th of October 2008.  The sealed copy of the order is dated the following date and is document 12 on the Court file.

On the 17th of December 2008 Judge Noud made a further order by consent when Ms Marshall, who represents the applicant today, appeared and also Mr Lawler, a solicitor, I believe a town agent for the principals in Adelaide, for the respondent.  That order fixed a mention for today and also required the respondent to file and serve any material upon which he seeks to rely in response to the application for a pecuniary penalty order including any material purporting to challenge the admissibility of documents relied on by the applicant, but excluding the forensic accountant's report, no later than
4 p.m. on Friday the 23rd of January 2009.

That last-mentioned date has come and gone with no material filed. 

...

HIS HONOUR:  There's been no appearance by Mr Lawler who can be taken to have known that today's mention would be coming on.  There's no reason, it seems to me, to think that the respondent is serious about filing material, he being successful in achieving delay to this point.  Ms Marshall has informed the Court that there might be arguments that could be invoked on behalf of Mr Phillips regarding the admissibility of certain material that came from New Zealand authorities and may well have been obtained and transmitted under measures which some might think draconian to get to the bottom of matters in relation to various kinds of activities adjudged criminal.

I'm sympathetic to Ms Marshall's desire to have the principal application listed for a hearing - which will return the applicant to the situation before the 23rd of September 2008.  As I say, nothing's happened to indicate that anything has been done in the months that have been allowed to elapse by or on behalf of the defendant to protect his position or advance the determination of the application.

...

HIS HONOUR:  I'm grateful to the Civil List Manager for attending in Court to advise what dates were available for hearing and, in the circumstances, will fix the 16th of March 2009 for hearing of the - it's called a pecuniary penalty application.

MS MARSHALL:  Correct, your Honour.

HIS HONOUR:  And I'll say it in its entirety. 
...

HIS HONOUR:  I direct that the applicant forthwith advise the respondent at his address for service, recorded in document 8 on the Court file, of that hearing date.

‑‑‑‑‑