Curran v The State of Western Australia - [2011] WASC 41

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CURRAN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 41

CORAM: EM HEENAN J

HEARD: 10 FEBRUARY 2011

DELIVERED : 10 FEBRUARY 2011

PUBLISHED : 18 FEBRUARY 2011

FILE NO/S: CPCA 18 of 2010

BETWEEN: CHLOE MIRANDA CURRAN
First Plaintiff
BRIAN GEOFFREY MIFFLING
Second Plaintiff
CARLA PHILOMENA MIFFLING
Third Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal property confiscation - Directions - No power to direct State to commence proceedings for a s 30 declaration of forfeiture - Plaintiffs to file affidavits in support of their claims as previously ordered

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 9, s 10, s 38
Misuse of Drugs Act 1981 (WA), s 7, s 30, s 32

Result:

Directions given

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr C E Chenu
Second Plaintiff             :     Mr C E Chenu
Third Plaintiff                :     Mr C E Chenu
Defendant:     Ms F Humphries

Solicitors:

First Plaintiff                  :     Lavan Legal
Second Plaintiff             :     Lavan Legal
Third Plaintiff                :     Lavan Legal
Defendant:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Campana v State of Western Australia [2008] WASC 230
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133

EM HEENAN J: This application, CPCA 18 of 2010, is by three named plaintiffs to determine objections which they have advanced to a freezing notice, WAPFN 100013, insofar as that notice applies to certain designed items of property. The freezing notice issued by the police follows the arrest and charge of a person named, Ryan Miffling, the son of the second and third plaintiffs and the de facto partner of the first plaintiff, on certain drug charges. Ryan Miffling has since been convicted of drug offences, which have led to a drug trafficking declaration being made against him, resulting in the confiscation of all of his property to the State under the provisions of the Criminal Property Confiscation Act 2000 (WA).
Despite the fact that these present proceedings were commenced in February 2010, there has been comparatively little progress, notwithstanding that an order was made by Hasluck J on 18 March 2010 containing a series of directions commonly made on such objection applications. Significantly, Hasluck J's order of March 2010 contained directions 4, 5 and 6 that by 29 April 2010 the plaintiffs should file and serve affidavits in support of the originating summons, and by 27 May 2010 the defendant should file and serve affidavits in response to those affidavits, and that the originating summons be adjourned to a date to be fixed after 27 May 2010.
Those orders have not been complied with and no affidavits specifying the items of property or property to which the plaintiffs claim ownership or in which they assent a proprietary interest have been filed or served; neither has an affidavit been filed by the defendant specifying why it is that the defendant claims that the declared drug trafficker owned or had an interest in the designated property. Furthermore, despite the provisions of s 36(6) of the Act which dictate that the particular freezing notice specifying the property which is the subject of the dispute should be filed in the court specified in the notice, no freezing notice has been filed in this court, if this indeed is the court specified by the notice.
The explanation for the long delay and non‑compliance with the order for directions made by Hasluck J, at least as it was advanced this morning for the plaintiffs, is that upon the drug dealer declaration being made the property became confiscated and the freezing notice thereupon no longer had effect, so that there was no necessity for an objection to its application to any particular items of property to be determined. After a detailed examination of the provisions of the Act, I consider that that proposition is open to considerable reservation. Insofar as the submission relates to registrable real property, it overlooks the provisions of s 9 and s 10 of the Act and, more particularly, s 38(2) and s 38(3), the combined effect of which means, in my view, that even after a declaration that an offender is a drug trafficker under s 32(a)(1) of the Misuse of Drugs Act 1981 (WA) and his property has thereby become confiscated to the State, a freezing notice, whether there are objections or not, continues to have effect in a qualified manner until a declaration of confiscation in respect of designated property is made under s 30 and a memorandum is served upon the Registrar of Titles as provided by that section.
Insofar as the application of the freezing notice may or may not have effect to items of personal property after a declaration that a person is a drug trafficker has been made, the question is more difficult. The submission for the DPP is to the effect that no order declaring the confiscation of an item of personal property will have final effect in respect of property to which an objection has been lodged until a declaration is made under s 30. The reason for that contention lies in the construction put by the State upon s 7(2) of the Act.
The response to that submission by counsel for the plaintiffs is that it has been determined by a decision of the Court of Appeal in CenturionTrust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 that s 7 does not apply to property the subject of freezing notices. I have not been favoured with detailed submissions as to the ambit of the Centurion decision, nor was the case cited in any advance submissions. It has not, therefore, been possible for me to consider that submission on its merits. I am, however, informed that the decision in Centurion is the subject of an application for special leave to appeal to the High Court of Australia. Whether it is or whether it is not, the decision, or the essential parts of it, remain binding upon me. I can, however, say that at the moment I consider that I should proceed on the basis that the person who has made an objection to a freezing notice relating to personal property alleged to be the property of a drug trafficker is entitled to have that objection determined even after the drug trafficker declaration has been made, or at least, that that is the approach which I should follow at this interlocutory stage of the proceedings.
What all that means is that it will be necessary in these or other proceedings, sooner or later, for a decision to be made which will bind the State and these three plaintiffs, determining whether and, if so, to what extent, the items of real property and personal property the subject of this freezing notice were the property of Ryan Miffling and as a consequence have become confiscated to the State. That could be done by the determination of these objections in the manner contemplated by the existing proceedings, which will of necessity require compliance, even out of time, with the orders and directions made by Hasluck J.
However, counsel for the plaintiffs submits today that that should not happen, that what should happen instead is that this court should direct the State to apply within a limited time for a declaration of confiscation under s 30 and that the initiative of determining what is the property which has been confiscated should properly lie with the State or the DPP.
I do not consider that the proposition that the initiative should lie with the State in that way finds support in the decision relied upon by counsel for the plaintiffs, namely, Campana v State of Western Australia [2008] WASC 230, a decision of Jenkins J. In that case, for obviously sound and necessary reasons, Jenkins J did adopt a procedure which allowed a declaration of confiscation to be determined under s 30 but the passages at [38] ‑ [40] of her Honour's reasons for decision to which I was taken by counsel do not appear to support the proposition which counsel advanced.
I do not consider that I have the power to direct that the State of Western Australia should commence proceedings under s 30. It will be for the State, as for any other litigant, to decide whether or not it wishes to initiate those or any other proceedings in this court. It seems, however, that the State is giving consideration to that possibility and that such proceedings may eventuate in the near future. Whether they do or whether they do not is not something which I consider I can, or should attempt to, influence. If such proceedings are brought, a question may arise as to whether they or these proceedings provide the better vehicle for the determination of the issue of the identity of the property which has become confiscated. That can be addressed if and when it arises.
If no proceedings are brought under s 30 then the plaintiffs in these proceedings have a ready avenue for determining whether or not their alleged interests have been affected by the confiscation or not. By proceeding with this action and belatedly complying with the orders for direction made by Hasluck J, such a determination will be possible. If the plaintiffs do not proceed with these proceedings and no action is brought by the State under s 30, some impasse may develop which will require consideration of a different kind on another occasion.
For the moment, I see no reason to interfere with the course of proceedings which has long been contemplated for the progress of this action, namely, steps being taken to hear and determine the objections which are on foot. I therefore decline the application by the plaintiffs to direct that the State of Western Australia should initiate proceedings under s 30 of the Act or otherwise.
There is one small remaining matter, and it is that in May of 2010 the parties to this action filed a memorandum of consent orders that these proceedings should be consolidated with another action, CPCA 51 of 2010. As far as I can see, no such order for consolidation has ever actually been made. I have been informed by counsel, and accept, that the other action relates to objection or similar proceedings involving the same parties which had been initiated in another court and that steps have been taken for those other proceedings to be remitted to this court. It seems likely that the remission has occurred but that the consolidation is yet to occur. It will be for the parties interested to take steps to attend to those procedures and to secure the making of the consolidation orders by application in each matter if that is still sought.
Despite an application for costs made by counsel for the State this morning, I consider that the costs of today's hearing should be reserved.