Director of Public Prosecutions (Commonwealth) v J Sarunic and Sons Pty Ltd

[2003] TASSC 113

[2003] TASSC 113

CITATION:Director of Public Prosecutions (Commonwealth) v J Sarunic & Sons Pty Ltd [2003] TASSC 113

PARTIES:  IN THE MATTER OF THE PROCEEDS

OF CRIME ACT 1987 (CTH) and
IN THE MATTER OF ALLEGED OFFENDERS

TURNER, Phillip Bruce
LEE, Mervyn Robin
JANSEN, Cornelius Marinus
COULSTON, Daren Te Ariki Charles

TEDESCO, Antonio

DIRECTOR OF PUBLIC PROSECUTIONS
(COMMONWEALTH)
v

J SARUNIC & SONS PTY LTD ACN 065 400 517

DIRECTOR OF PUBLIC PROSECUTIONS
(COMMONWEALTH)
v

SARRIBA PTY LTD ACN 078 897 462

DIRECTOR OF PUBLIC PROSECUTIONS
(COMMONWEALTH)
v
MARNIKOL FISHERIES PTY LTD ACN 050 949 730

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M307/2002

M308/2002

M309/2002

DELIVERED ON:  6 November 2003
DELIVERED AT:  Hobart
HEARING DATES:  15 October 2003
JUDGMENT OF:  Crawford J

CATCHWORDS:

REPRESENTATION:

Counsel:
   Applicant:  K E Read and G H Livermore
   Respondents J Sarunic & Sons Pty Ltd
   and Sarriba Pty Ltd:  B J Powell
   Respondent Marnikol Fisheries Pty Ltd:     J D Ewardson

Solicitors:
   Applicant:  Commonwealth Director of Public Prosecutions
   Respondents J Sarunic & Sons Pty Ltd
   and Sarriba Pty Ltd:  Ogilvie Jennings
   Respondent Marnikol Fisheries Pty Ltd:     Page Seager

Judgment Number:  [2003] TASSC 113
Number of Paragraphs:  20

Serial No 113/2003
File Nos M307/2002

M308/2002
M309/2002

IN THE MATTER OF THE PROCEEDS OF CRIME ACT 1987 (CTH)
and IN THE MATTER OF ALLEGED OFFENDERS PHILLIP BRUCE TURNER,
MERVYN ROBIN LEE, CORNELIUS MARINUS JANSEN,
DAREN TE ARIKI CHARLES COULSTON and ANTONIO TEDESCO

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)
v J SARUNIC & SONS PTY LTD ACN 065 400 517
DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)
v SARRIBA PTY LTD ACN 078 897 462
DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)
v MARNIKOL FISHERIES PTY LTD ACN 050 949 730

REASONS FOR JUDGMENT  CRAWFORD J

6 November 2003

1. On 3 May 2002, Phillip Bruce Turner, Mervyn Robin Lee, Cornelius Marinus Jansen, Daren Te Ariki Charles Coulston and Antonio Tedesco were formally convicted under the Sentencing Act 1997 (Tas) and sentenced to terms of imprisonment. Recognizance release orders were made in each case. Each had pleaded guilty to a charge of conspiring to defraud the Australian Fisheries Management Authority, a public authority under the Commonwealth, contrary to the Crimes Act 1914 (Cth), s86A, between 1 December 1991 and 31 December 1992, by dishonestly agreeing to cause and permit returns to be submitted to the Authority which falsely recorded catches of orange roughy.

1. On 18 September 2002, the Director filed three originating applications, one against each of the respondents.  In the headings on the originating applications, the Director was shown as the applicant and the respective respondent was shown as respondent.  Above the names of those two parties, it was stated that the originating application was in the matter of the Proceeds of Crime Act 1987 (Cth) ("the Act"), and in the matter of the five convicted men, who were named and described as the "alleged offenders". Each originating application was expressed to be directed to the named respondent and to "any other person served with this application". By each originating application, the Director applied for an order that a particular fishing vessel be forfeited to the Commonwealth. In the case in which J Sarunic & Sons Pty Ltd is the respondent, the vessel is the Christina S. In the cases in which Sarriba Pty Ltd and Marnikol Fisheries Pty Ltd are the respondents, the vessels are respectively the Sarriba and the Monika.

1. Essentially, the case of the Director is that each of the vessels was used in the commission of the crime, that accordingly the vessels are "tainted property" as that expression is used in the Act (see s4), and that the Court should order, under s19(1), that each is forfeited to the Commonwealth.

1. Nine, or thereabouts, directions hearings were conducted by a judge between September 2002 and 31 March 2003.  Matters dealt with at those hearings included the provision of particulars, filing and service of affidavits, admissions of facts and discovery of documents.  At the second last directions hearing, on 24 March 2003, the solicitors for the Director and the respondents announced that the only outstanding matter was discovery and subject to completion of that process, the three originating applications could proceed to a hearing.  At the last directions hearing on 31 March 2003, it was expected that the process of discovery would be completed shortly, that the need for a further directions hearing was unlikely and that the next step in the proceedings was likely to be the obtaining of a date for hearing.

1. Earlier, on 26 September 2002, the learned judge was requested by the parties to determine a question of law in the form of a special case. The question of law was said to be whether the vessels, not used in the formation of the conspiratorial agreement, but alleged to have been used in, or in connection with, the performance of such agreement, could be tainted property for the purposes of the Act. Notwithstanding the agreement of all parties, the learned judge declined to entertain the special case because it did not set out sufficient facts to enable the question of law to be determined, and further, as framed, it sought an advisory opinion. See Commonwealth Director of Public Prosecutions v Sarriba Pty Ltd [2002] TASSC 77.

1. The parties announcing that they were ready, the originating applications were listed for the hearing before a judge in July 2003 of the question whether the vessels were tainted property.  If that question was determined in favour of the respondents, the originating applications would have been dismissed.  If it was determined in favour of the Commonwealth, a further hearing would have been necessary for the determination of whether the judge should exercise his discretion to order the forfeiture of the vessels.  However, because the judge allocated to hear the proceedings became unavailable, the hearing had to be put off. 

1. Ultimately, the hearing of the originating applications was listed to commence before me on 14 October 2003. Once again, the parties intended that the hearing would be limited to the determination of the question whether the vessels were tainted property. I was told that the hearing was likely to last from two to five days. It commenced at 10am when counsel for the Director commenced to make his opening address, supported comprehensively with written submissions and supporting documentation. Unfortunately, it became apparent within a few minutes that the hearing could not continue. When counsel for the Director drew my attention to the Act, s15(1), that required that written notice of the applications for forfeiture be given to not only any person who might have an interest in the property, but also to the convicted men, I inquired whether they had in fact been given such notice. It was discovered that they had not. No one appearing before me had been aware of that. There was no choice but to abandon the hearing, the only question being whether it should be adjourned or instead, the originating applications should be dismissed. The Director submitted that the hearing should be adjourned. Counsel for the respondents strenuously contested that the applications should be dismissed. I learned that no person in the Director's Tasmanian legal team had been aware that written notice had not been given to the convicted men. It appeared that the fault for the omission could be attributed to the person who prepared the originating application in the Director's Melbourne office. I was also informed that when the convicted men were before the Criminal Court for the sentencing hearing, prosecuting counsel announced an intention to apply for the forfeiture orders and in answer to a question from the learned judge, counsel for the convicted men said that they had no interest in the vessels. That made it appear unlikely that the convicted men would have wished to participate at the hearing of the applications for forfeiture. After substantial argument, I determined that in the interests of justice, the originating applications should not be dismissed but that instead the hearing should be abandoned and adjourned sine die.  At the same time I indicated that the Court could provide hearing time in November, February and March, depending on the convenience of the parties.  An undertaking was given by counsel on behalf of the Director that efforts would be made promptly to have written notice of the originating applications given to the convicted men.

1. As a consequence of the realisation that the convicted men had not been given written notice of the originating applications, each of the respondents filed that day an application seeking to set aside the whole of the proceedings.  Their applications were in identical terms:

"The Respondent applies for the following orders:

1 That the within proceedings be wholly set aside for reason that they do not comply with the Supreme Court Rules 2000 (Tas) in the following respects:

1.1   the offenders Phillip Bruce Turner, Mervyn Robin Lee, Cornelius Marinus Jansen, Daren Te Ariki Charles Coulston and Antonio Tedesco are not named as respondents in the proceedings and the proceedings have not been served on those persons in compliance with the said Rules.

2   That the Applicant's application dated 17 September 2002 be dismissed.

3   That the Applicant pay the Respondent's costs of and incidental to the proceedings."

1. The following day, 15 October 2003, I heard and determined the Director's application to adjourn the hearing.  I then heard the applications to set aside the proceedings and reserved my decision.

1. By the Supreme Court Rules 2000, r13, a failure to comply with any of the rules does not make proceedings void, unless the Court or a judge so orders. By r14(1), the Court or a judge may order that any proceedings that do not comply with the rules be set aside, wholly or in part, or that they be amended or otherwise dealt with in any manner and on any terms the Court or a judge considers fit. By subr(2), an application to set aside is to state each irregularity complained of in detail. In this case only two irregularities are identified in the applications, a failure to name the convicted persons as respondents and a failure to serve them.

1. I am unpersuaded that the originating applications were defective because they did not name the convicted men as respondents. The Act, s15(2), only required that written notice of the applications be given to them. It did not require that they be named as respondents. Counsel for Sarriba Pty Ltd and J Sarunic & Sons Pty Ltd pointed out that the Director's originating applications were in the form of Form 4 in the Supreme Court Forms Rules 2000, which I note does not require anyone to be named as a respondent, although it makes provision for a respondent to be referred to in the document if named as such. I note also that by r3(2) of the Supreme Court Forms Rules, each form is to include such title, heading and footer from Form 1 as is appropriate in the circumstances, and there is no requirement in that for the convicted persons to be named as respondents. 

1. Counsel also referred to the Supreme Court Rules, r97(4)(b), that require that the person against whom a proceeding other than an action is commenced, to be called a respondent, but that is not a requirement that the convicted persons, who were required only to be given written notice of the applications, be named as respondents. It was submitted that the requirement in the Act to give written notice required the naming of the men as respondents, but no real basis for the submission was advanced.

1. I point out that by the Supreme Court Rules, r7(1), a prescribed form may be used with any variations as the circumstances require. Slavish conformity with prescribed forms is not required.

1. It was submitted that the prescribed Form 4 and the originating applications in this case, contain a "notice to person served" advising that the recipient needs to enter an appearance within a certain time if he or she wishes to participate in the proceedings.  An attempt was made to convert that into a requirement that the convicted men had to be named as respondents, by using the Supreme Court Rules, r125, but that rule only applies to parties and not to everyone who may have been given notice. Further, Form 4 and the originating applications clearly provide for the eventuality of persons being served who are not parties. It is not uncommon in this jurisdiction that persons may be required to be served with originating applications notwithstanding that they are not parties.

1. The Supreme Court Rules, r14(3), prohibits the making of an order setting aside proceedings unless the application has been made within a reasonable time and unless the applicant has taken no fresh step in the proceedings after becoming aware of the irregularity complained of. The respondents were aware of the fact that the convicted men were not named as respondents from the outset of the proceedings in September 2002. They made no point about it notwithstanding many opportunities to do so at the various directions hearings. They first complained of it after the scheduled hearing of the originating applications had commenced and then foundered on 14 October 2003. It is now far too late for them to be applying to set aside the proceedings. Further, even if the argument that the convicted men should have been named as respondents is correct, an appropriate manner of dealing with such an irregularity would be to order that they be added as respondents and that the originating applications be appropriately amended. It is still the practice of this Court, probably more than it has ever been, "not to accord to procedural irregularities the sanction of invalidity where the justice of the matter can be met either by amendment or waiver or other remedial order". In re Municipal Commission 78/1967 at 2.  Further, no injustice or other good reason has been shown by the respondents for setting aside the proceedings because of a failure to name other persons as respondents.

1. In the alternative, it was submitted that the originating applications should be set aside because the convicted men have not yet been given written notice of the proceedings as required by the Act, s15(1)(a). It was pointed out that a number of the convicted persons are domiciled out of Tasmania and one of them is domiciled in New Zealand. It was submitted that the effect of the Supreme Court Rules, r124, is to remove from the Court or a judge any power it may otherwise have to extend time for service. The combined effect of rr99 and 123(3) is that an originating application which is to be served outside the State but within Australia, is to be served 23 days before the hearing date, and an originating application which is to be served in New Zealand is to be served 47 days before the hearing date. Rule 124 makes provision for the registrar to note on the originating application and any sealed copy of it by way of amendment, a new hearing date in a case where the originating application is to be served within the State but it has not been served within the time required by r123(1), that is at least nine clear days before the hearing date. It was argued that as there is no corresponding rule allowing for amendment of the hearing date in a case where an originating application is to be served out of the State, no amendment of the hearing date may in such a case be made.

1. The submission has no merit.  Rule 124 does not apply to a case where service out of the State is required.  The fact that there is no rule that provides for a similar change to the hearing date in a case where service is to be effected outside the State, does not mean that a fresh hearing cannot be allocated.  Rule 124 is an adaptation of the Rules of the Supreme Court 1965, O61, r12, which allowed for an informal way of noting on copies of originating summonses intended for service in the State, a new hearing date when service had not been effected within time.  It needed to be adapted for the current Rules because they introduced for the first time a requirement that copies of originating applications for service had to be sealed by the registrar.  But it was never the case under the previous Rules, and I have no doubt that the same is the position under the current Rules, that a failure or inability to serve an originating application out of the State within sufficient time before the appointed hearing date, rendered the originating document void or required that it be set aside.

1. I note that the Act, s15(a), only requires that the convicted persons be given written notice of the applications. It does not require that they be "served". I note also that I have an undoubted power to extend times. I have already expressed to the parties why I determined to adjourn the hearing rather than dismiss the applications. Two of my reasons for doing so were that the failure to give notice to the convicted men appeared to have been due to an oversight concerning the requirement of the Act and specific prejudice to the respondents, in the event that the hearing was adjourned, was not asserted by them. I added to that the public interest in having the originating applications determined on their merits.

1. The Rules are designed to serve the interests of justice by promoting the orderly conduct of the Court's business.  Applications to set aside proceedings because of a perceived procedural defect should be discouraged and reserved for rare cases.  The Rules are not designed to lock judges and parties into an inflexibility which prevents the consideration of the merits of the particular case and frustrates the achievement of substantial justice as the special circumstances of each case require.  GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 714.

1. For the above reasons, the three applications filed on 14 October 2003, seeking to have the proceedings set aside, will be dismissed.