Director of Public Prosecutions (Cth) v Chia
[2005] VSC 211
•20 June 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
No. 1496 of 2003
IN THE MATTER of the Proceeds of Crime Act 2002 (Cth)
B E T W E E N:
| THE DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) | Plaintiff |
| And | |
| TECK LENG CHIA | Defendant |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 JANUARY 2005 | |
DATE OF JUDGMENT: | 20 JUNE 2005 | |
CASE MAY BE CITED AS: | DPP v CHIA | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 211 | |
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Practice and Procedure – Jurisdiction of Courts (Cross-Vesting) Act 1987, s.5(1) – Interests of justice – Factors to be considered on transfer application – Whether two arguably related proceedings should be heard in one court or in two courts – Relevance of delay.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M.M. Gordon SC and Mr D.W. Bennett | Director of Public Prosecutions (Cth) |
| For the Defendant | No appearance | |
| For Westpac Banking Corporation | Mr J. Sheahan SC, Mr P. Dowdy and Ms S.B. Cipriano | Corrs Chambers Westgarth |
| For Aspinalls Club Limited | Mr J.B. Davis | Coudert Brothers |
HIS HONOUR:
This was an application by Westpac Banking Corporation ("Westpac") to transfer this proceeding ("the Victorian proceeding") to the Federal Court of Australia, Sydney Registry, pursuant to s.5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 ("the VCVA").
Background
It appears that the defendant in this proceeding, Teck Leng Chia, a citizen of the Republic of Singapore, frequently gambled large sums of money at various casinos in the United Kingdom and Australia. For example, it is alleged that over a period of four years Mr Chia deposited $190 million into an account with Crown Casino in Melbourne. On 2 September 2003 Mr Chia was arrested in Singapore. He was subsequently charged with numerous offences under the Penal Code of Singapore involving the forging of documents and the making of false representations, as a result of which, it was said, he had cheated four banks of over SG$117 million. On 2 April 2004 Mr Chia pleaded guilty in the High Court of Singapore and was sentenced to imprisonment for 42 years.
In December 2000 Mr Chia and his wife Chuay Fun Mok had opened a cash management account number 032-024 30-7855 ("the account") with Westpac. On 18 August 2003 Mr Chia drew a cheque on the account payable to "Aspinalls" in the sum of £1,640,000. Aspinalls Club Limited ("Aspinalls") operates casinos in the United Kingdom. On 20 August 2003 Mr Chia drew another cheque on the account apparently payable to "NatWest 06231519" (an Aspinalls bank account with National Westminster Bank Plc) in the sum of £990,000. On 5 September 2003 Aspinalls’ solicitors wrote to Westpac demanding payment of the cheques. Neither cheque has been paid by Westpac. In mid September 2003, pursuant to an authority from Mr Chia and the Australian Federal Police on behalf of the Singapore Police to transfer all of the money in the account to Singapore, approximately $22.3 million was transferred from the account to a bank account in Singapore controlled by the Singapore Police. This left the sum of just over $7 million in the account, which was transferred to a Westpac suspense account, pending resolution of the issue of the unpaid cheques.
The Victorian Proceeding
On 24 September 2003 the Commonwealth Director of Public Prosecutions ("the DPP") filed an application in this Court for a restraining order pursuant to ss.19 and 25 of the Proceeds of Crime Act 2002 (Cth) ("the PCA") in respect of the property specified in the schedule which was said to be "all funds standing to the credit of account number 032 024 307 855 held in the name of Teck Leng Chia by the Westpac Banking Corporation" ("the property").
An ex parte application was made that same day by the DPP. Dodds-Streeton J ordered that until further order the property specified in the schedule was not to be disposed of or otherwise dealt with by any person without the consent of the DPP and that pursuant to s.38 of the PCA the Official Trustee take custody and control of the property. Westpac was served with the relevant papers in that application on 24 September 2003.
By an originating motion filed on 17 October 2003 the DPP sought an order pursuant to s.49(1) of the PCA that the property specified in the schedule be forfeited to the Commonwealth. On 20 October 2003 the originating motion was adjourned by me to 24 February 2004 for a directions hearing.
On 24 February 2004 the originating motion was adjourned by Mandie J by consent to 6 April 2004 to enable the criminal proceeding against Mr Chia in Singapore to be finalised. Westpac had been served with notice of the hearing on 24 February. On 6 April 2004 the originating motion was adjourned by Gillard J by consent to 18 May 2004.
By an application filed on 23 April 2004 Westpac sought an order that paragraph 2 of the order of Dodds-Streeton J be vacated upon Westpac undertaking that it would make no payment or disposition of any kind whatsoever so as to reduce or diminish the credit balance standing to the credit of the account until further order of the Court. At that time Westpac had yet to pay the funds to the Official Trustee. This application was heard by Warren CJ on 7 and 25 May 2004. On 26 May 2004 her Honour delivered judgment dismissing Westpac's application.[1] On 9 June 2004 Westpac issued a summons seeking leave to appeal from the decision of Warren CJ. Westpac did, however, pay the funds to the Official Trustee on 28 May 2004.
[1]DPP (Cth) v Chia [2004] VSC 184
On 11 June 2004 the originating motion came before Master Kings pursuant to an order made by Williams J on 18 May 2004. The Master set the originating motion down for a two day hearing on 10 November 2004. The Master further ordered that any person claiming an interest in the property restrained by the order of Dodds-Streeton J file and serve any application under the PCA on or before 13 August 2004 and adjourned the directions hearing to 17 August 2004.
On 13 August 2004 Westpac filed a summons seeking orders pursuant to ss.29(1) and 31 of the PCA that the property the subject of the order of Dodds-Streeton J, alternatively the whole of the applicant's interest in that property, be excluded from her Honour's restraining order, alternatively pursuant to s.73 of the PCA that the property the subject of the order of Dodds-Streeton J, alternatively the whole of the applicant's interest in that property, be excluded from the forfeiture order sought in the originating motion. Aspinalls sought similar orders in its summons filed on the same day. Asia Pacific Breweries (Singapore) Pte Ltd also filed a summons on the same day in which it sought a declaration that it was a party with a contingent interest in the property the subject of the order of Dodds-Streeton J. (This application was subsequently discontinued in February 2005).
The application for leave to appeal, and if granted the appeal itself, from the order of Warren CJ came on for hearing on 28 October 2004. On 29 October 2004 the Court of Appeal (Buchanan and Phillips JJA and Byrne AJA) ordered by consent that leave to appeal be granted, the appeal be allowed and that paragraph 1 of the order made on 26 May 2004 be set aside and in lieu thereof order:
"i)That the order made on 24 September 2003 be varied by substituting for the words in the schedule the following:
'Chose in action being the right or entitlement of Teck Leng Chia to payment of the amount standing to his credit in account no. 032-024 30-7855 in the name of Mr Chia at Westpac Banking Corporation.'
ii)Otherwise the application made pursuant to liberty to apply is dismissed."
After the change in wording of the order, Westpac unsuccessfully requested the Official Trustee to repay the funds.
Following the decision of the Court of Appeal, on 3 November 2004 Master Kings vacated the trial date of 10 November 2004 and adjourned the directions hearing to 1 December 2004. On that day it was further adjourned pending the hearing of the summons referred to in the next paragraph.
This Application
By a summons filed on 29 November 2004 Westpac sought an order that this proceeding be transferred to the Federal Court of Australia, Sydney Registry. The hearing was set down for 31 January 2005.
By another summons filed on 7 December 2004 and made returnable on 31 January 2005 ("the second application") Westpac sought an order that the order made by Dodds-Streeton J on 24 September 2003 be set aside. As explained below, the issues raised by the second application were not argued before me.
The Singapore Proceeding
Also on 24 September 2003, Bayerische Hypo-Und Vereinsbank Aktiengesellschaft, one of the banks allegedly defrauded by Mr Chia, applied to the High Court of the Republic of Singapore for, and was granted, an ex parte injunction restraining Mr Chia from disposing of any of his assets whether or not they were "in or outside Singapore". Specifically included in the prohibition were "any monies currently held in account number 032 024 307 855 under the defendant’s [Mr Chia’s] name at the Sydney branch of Westpac Banking Corporation". Although the order of the High Court of Singapore has not been registered in Australia, Westpac has a branch in Singapore and it has been concerned not to be in breach of that order.
The New South Wales Proceeding
Whilst the above steps were being taken in the Victorian proceeding, Aspinalls had taken another course to recover the £2,630,000 from the two unpaid cheques. On 7 January 2004 it commenced a proceeding in the Supreme Court of New South Wales against Westpac and Mr Chia ("the NSW proceeding"). On 16 April 2004 Aspinalls entered judgment against Mr Chia for the sum of £1,640,000 plus interest thereon at the rate of 8% from 1 September 2003. Aspinalls' claim against Westpac alleged a breach of s.67(1) of the Cheques Act 1986 (Cth) in failing to either pay or dishonour each of the cheques as soon as was reasonably practicable. On 5 July 2004 Aspinalls amended its summons in the NSW proceeding to add DHL International Pty Ltd as a third defendant.
On 29 November 2004 Westpac filed a notice of motion in the NSW proceeding seeking the transfer of that proceeding to the Federal Court of Australia. That application had not come on for hearing by the time of the hearing before me.
The Federal Court of Australia Proceeding
Westpac was also not content to allow its dispute with the DPP and its rights in respect of the two unpaid cheques to be determined solely by the issues raised in the Victorian proceeding. The dilemma for Westpac was that it faced the possibility of being required to pay twice about $7 million (being roughly the Australian equivalent of £2,630,000), first to the DPP if the DPP was able to obtain the benefit of a forfeiture order, and secondly to Aspinalls if it was successful in the NSW proceeding in its claim under s.67(1) of the Cheques Act. I was informed by counsel for Westpac that, subject to it being freed from any restraining orders or other priority claims, it proposed to honour the cheques and pay Aspinalls the £2,630,000.
On 29 November 2004 Westpac issued an application in the Federal Court of Australia ("the FCA proceeding") for an Order of Review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and for relief pursuant to s.39B of the Judiciary Act 1903 (Cth). The DPP, the Official Trustee in Bankruptcy and Aspinalls were named as respondents to the application. The application sought to review the decision of the DPP:
"(a)to apply for a restraining order in respect of property of Teck Leng Chia being account number 032 024 307 855 conducted with the applicant, purportedly pursuant to s.19 of the Proceeds of Crime Act 2002 …;
(b)to apply for a forfeiture order in respect of the said property, purportedly pursuant to s.49(1) of the [PCA]."
The grounds of the application were that:
"1.The DPP erred in law in making the decisions in that he had no power to make such decisions in circumstances where they were made pursuant to or in response to a request for assistance from the Singapore Police Force dated 10 September 2003.
2.The DPP erred in law in making the decision in that in circumstances where the decisions were made pursuant to or in response to the said request, he failed to take into account a relevant consideration, namely that by proceeding under the [PCA] a successful outcome would result in the property being forfeited to the Commonwealth."
The statement of the grounds was amplified by counsel for Westpac during the course of argument. It was explained that the first ground was an ultra vires argument, that the DPP in these circumstances had no power to act under the PCA because the Mutual Assistance in Criminal Matters Act 1987 (Cth) ("the MAA") provided the exclusive regime for orders by way of restraint or forfeiture of proceeds of crime in response to requests from foreign law enforcement agencies in respect of serious foreign offences. The second ground was that assuming, contrary to the first ground, that there were two modes of proceeding, under either the PCA or the MAA, the DPP erred in law in making the decision to proceed under the PCA by failing to take into account the relevant consideration that the MAA might provide the more appropriate route.
The relief sought by Westpac in the FCA proceeding was as follows:
"1. An order quashing or setting aside the said decisions.
2.An order that a writ of prohibition issue requiring the first respondent to refrain from giving effect to the said decisions.
3.An injunction restraining the DPP from continuing to prosecute [the Victorian proceeding].
4.A mandatory injunction requiring the DPP to discontinue that proceeding.
5.An order that the second respondent pay to the applicant for the account of Teck Leng Chia the sum of $7,286,292.689 (being the sum paid by the applicant to the second respondent on 28 May 2004), together with any interest accrued thereon.
FURTHER or in the alternative, the applicant claims:
6.A declaration that it is entitled to debit from the account of Teck Leng Chia conducted with the applicant any amount which it is adjudged liable to pay to Aspinalls in [the NSW proceeding].
7.A declaration that the applicant is entitled to debit the account of Teck Leng Chia with the second respondent (being the product of the payment by the applicant referred to in paragraph 4 [sic] above), in the event that it is adjudged liable to pay Aspinalls in [the NSW proceeding], and that the applicant is entitled to be paid by the second respondent the amount of any such liability, up to the limit of the amount standing in the account.
8.A declaration that payment of the cheques the subject of the said proceeding was not countermanded by Teck Leng Chia on or before 24 September 2003."
The Cross-Vesting Legislation
An application to transfer a proceeding from the Supreme Court of Victoria to the Federal Court of Australia or the Family Court is dealt with by s.5(1) of the VCVA. It now provides as follows:
"(1) Where –
(a)a proceeding (in this sub-section referred to as the 'relevant proceeding') is pending in the Supreme Court; and
(b) it appears to the Supreme Court that –
(ii) having regard to –
(A)whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court;
(B)the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and
(C) the interests of justice –
it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be –
the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be."
The High Court's Decision on Cross-Vesting
Shortly before the argument before me took place the High Court of Australia handed down its decision in BHP Billiton Limited v Schultz[2], which concerned an application, under s.5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) ("the Cross-vesting Act"), to have an action pending in the Dust Diseases Tribunal of New South Wales removed from the Tribunal to the Supreme Court of New South Wales and then transferred to the Supreme Court of South Australia. Although the members of the High Court differed on the form of order which should be made, all of them agreed that the appeal should be allowed. Gummow, Kirby, Hayne and Callinan JJ each held that the order of the Supreme Court of New South Wales dismissing the application should be set aside and that in lieu thereof it should be ordered that the proceeding in the Tribunal be removed into the Supreme Court of New South Wales and thereupon be transferred to the Supreme Court of South Australia.[3] Gleeson CJ, McHugh and Heydon JJ in a joint judgment also agreed that the appeal should be allowed but they would have simply remitted the matter to the Supreme Court of New South Wales "for further consideration in accordance with the reasons of this Court."[4]
[2][2004] HCA 61
[3][2004] HCA 61 at [101] per Gummow J, at [176] per Kirby J, at [177] per Hayne J and at [263] per Callinan J
[4][2004] HCA 61 at [32]
The importance of this case for present purposes is that the Court rejected the proposition found in some earlier decisions on the cross-vesting legislation that the plaintiff's choice of forum was a relevant consideration to take into account and accorded due weight when deciding whether or not to transfer a proceeding.[5] In the words of the members of the joint judgment the idea that a plaintiff's choice of forum is "not lightly to be overridden … is out of place in a decision about s.5 of the Cross-vesting Act."[6] Instead, emphasis was given to deciding which court was the more appropriate to hear the dispute. Gleeson CJ, McHugh and Heydon JJ said:
"In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s.5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court 'shall transfer' the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate."[7]
[5]See, for example, Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 396 per Wilcox J; Ross Mollison Group Pty Ltd v The Really Useful Company (Aust) Pty Ltd [2000] VSC 256 at [22] per Warren J (as her Honour then was); Global Technology Australasia Ltd v Bank of Queensland Ltd [2001] VSC 230 at [31] per Gillard J and Iasbet Limited v Worldgroup Consulting Pty Ltd [2002] VSC 587 at [40] per Habersberger J.
[6][2004] HCA 61 at [25] per Gleeson CJ, McHugh and Heydon JJ
[7][2004] HCA 61 at [14]
Gummow J, with whom Hayne J agreed[8], stated a similar conclusion:
"The phrase 'otherwise in the interests of justice' in sub-par (iii) of s.5(2)(b) of the Cross-vesting Act requires the Supreme Court to determine a transfer application by identifying the more appropriate forum without any specific emphasis in favour of the choice of forum made by the plaintiff."[9]
[8][2004] HCA 61 at [177]
[9][2004] HCA 61 at [77]
Kirby J also expressed a similar view:
"By hypothesis, where an application for transfer is made under a cross-vesting Act, one party has validly invoked the jurisdiction of a particular State court. In the disposition of the application, that fact must therefore be neutral It cannot predominate in the evaluation of the 'connecting factors' to be given weight on both sides of the ledger in ascertaining which of the competing fora 'is more appropriate' having regard to 'the interests of justice'."[10]
[10][2004] HCA 61 at [168]
Callinan J emphasised another important aspect of the cross-vesting legislation:
"It is important to notice that s.5(2)(b)(iii) of the Cross-vesting Act uses mandatory language. '… the first court shall transfer.' A judge hearing an application for cross-vesting does not therefore have an unfettered discretion. Such a judge must apply his or her mind to the criteria stated in the Act, including the interests of justice, justice it may be observed, to all parties, and, if they are satisfied, must cross-vest the case."[11]
[11][2004] HCA 61 at [222]. See also Gummow at [49].
Westpac's Submissions
The principal submission advanced on behalf of Westpac was that, having regard to "the interests of justice" (Westpac having conceded that the only applicable provision was s.5(1)(b)(ii)(C) of the VCVA), it was more appropriate that the Victorian proceeding be determined by the Federal Court, because the most efficient way of dealing with three related proceedings (the Victorian proceeding, the NSW proceeding and the FCA proceeding) was to have one judge manage and decide all of them and that this could only be achieved in the Federal Court. Such a course, it was submitted, would avoid the risk of inconsistent decisions in respect of the overlapping issues raised in the three proceedings.
It was recognised, however, that transferring the Victorian proceeding to the Federal Court would not necessarily achieve that result because the outcome of the transfer application in the NSW proceeding had not yet been decided. Nevertheless, Mr Sheahan SC, who appeared with Mr Dowdy and Ms Cipriano of counsel for Westpac, submitted that the Victorian proceeding should be transferred to the Federal Court, whatever the outcome of Westpac's application to transfer the NSW proceeding to the Federal Court.
Mr Sheahan submitted on behalf of Westpac that the issues in the Victorian proceeding overlapped with those that arose in the FCA proceeding. He submitted that the attack on the decisions of the DPP meant that the propriety of the continuation of the application in the Victorian proceeding was an issue in the FCA proceeding. Further, it was said that the first and second declarations sought by Westpac (see paragraph 21 above) bore upon the question of whether the relief sought by Westpac and Aspinalls by way of exclusion orders was necessary or appropriate. For example, Mr Sheahan outlined an argument to the effect that on a proper construction of the PCA, Westpac had a relevant interest in property which was unaffected by the restraint order made by Dodds-Streeton J but which also did not entitle it to make an exclusion application. Further, it was submitted that these two declarations were federal jurisdiction because they were matters arising under laws made by the Federal Parliament, namely the PCA and the Cheques Act (see s.39B(1A)(c) of the Judiciary Act which confers "a broad supplementary jurisdiction on the Court in matters arising under laws made by the Parliament)."[12]
[12]Hooper v Kirella (1999) 96 FCR 1 at [69] per Wilcox, Sackville and Katz JJ. See also Transport Workers Union v Lee (1998) 84 FCR 60 at 67 per Black CJ, Ryan and Goldberg JJ.
It was also submitted that the third declaration sought by Westpac in the FCA proceeding (see paragraph 21 above) went to an issue raised by the DPP in the Victorian proceeding in answer to Westpac's exclusion application and to a similar issue in the NSW proceeding. The issue was whether the two cheques had been countermanded by Mr Chia by him asking for all of the money in the account to be remitted to Singapore. If Mr Chia had countermanded the cheques then this might be relevant not only to the DPP's opposition to Westpac's exclusion application in the Victorian proceeding but also to Aspinalls' claim against Westpac in the NSW proceeding. What Westpac wished to avoid was two inconsistent findings. Thus, it had sought a declaration in the FCA proceeding that payment of the cheques was not countermanded by Mr Chia on or before 24 September 2003. Mr Sheahan submitted that this was within the Federal Court's accrued jurisdiction.
Next, Mr Sheahan submitted that the questions raised in the FCA proceeding as to whether the DPP's decisions were ultra vires or affected by error were "special federal matters" within the meaning of the VCVA which incorporated the definition from the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the CCVA"). He submitted that s.3 of the CCVA relevantly defined a "special federal matter" as including a matter arising under the ADJR Act and a matter that was within the original jurisdiction of the Federal Court by virtue of s.39B of the Judiciary Act, and that the first five heads of relief sought in the FCA proceeding fitted the latter description. That being so, Mr Sheahan submitted, the consequence was that the FCA proceeding attracted the "general rule that special federal matters should be heard by the Federal Court" (s.6(6)(a) of the VCVA). Thus, he submitted that there was no prospect of the FCA proceeding being cross-vested to either the Supreme Court of Victoria or the Supreme Court of New South Wales.
Mr Sheahan emphasised the "nuts and bolts"[13] approach to this question of whether or not to cross-vest. He noted that dealing with all three, or at least two, of the proceedings in the one court did not necessarily mean that all of them had to be heard together. Rather, he submitted that cross-vesting the Victorian proceeding would simply enable the Federal Court to deal with the various issues in the most just and efficient manner for all parties, employing the full range of management tools such as preliminary determination of key issues, consecutive or concurrent hearings and orders that evidence in one proceeding be evidence in the other proceeding or proceedings.
[13]Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714 per Street CJ
Finally, Mr Sheahan submitted that there were no reasons of convenience or otherwise not to make the order sought. The more usual considerations for determining the appropriate court (such as cost, convenience of witnesses, connection with the forum and the relevant law) were not relevant in this application. Further, he pointed out that the ultimate venue of any trial would be a matter for the Federal Court which as a national court could sit wherever was considered to be the most appropriate place.
The Second Application
Mr Sheahan explained that the reason for issuing the second application was that in the event that Westpac was successful in the FCA proceeding an appropriate consequential order might be to set aside the restraining and custody orders so as to authorise the Official Trustee to repay the money without there being any suggestion that by doing so it was in conflict with the original order made in the Victorian proceeding. In the circumstances it was preferable to have such an application issued in the Victorian proceeding before any transfer order was made. Another reason was to anticipate a possible argument that the FCA proceeding was an impermissible collateral impeachment of the order of Dodds-Streeton J. Having heard that explanation, counsel for the DPP was content to defer the argument on the second application, although the DPP's preferred position had been to argue the merits of the second application at this hearing.
The DPP's Submissions
Ms Gordon SC, who appeared with Mr D. Bennett of counsel, submitted on behalf of the DPP that the interests of justice did not compel the transfer of the Victorian proceeding to the Federal Court. Ms Gordon emphasised that Westpac's application did not fall within either s.5(1)(b)(ii)(A) or (B), but only within s.5(1)(b)(ii)(C) of the VCVA. She submitted that, given that the Court was required to consider the extent to which all parts of s.5(1)(b)(ii) were satisfied, the fact that sub-paragraphs (A) and (B) were not satisfied imposed a relatively high hurdle upon Westpac in respect of sub-paragraph (C).
Ms Gordon submitted that it was clear from reading the PCA, in particular ss.19, 314 and 335 of that Act, that it was the State and Territory Supreme Courts which were the courts vested with this proceeds of crime jurisdiction. Thus, this Court was the appropriate court to hear the forfeiture and exclusion applications. In the absence of the cross-vesting legislation the forfeiture and exclusion applications could not be heard by the Federal Court. Ms Gordon submitted that the declarations sought by Westpac, which were simply tacked on to the other relief, were not in any way founded in the PCA. Further, it was submitted that to the extent that Westpac's claims in the FCA proceeding involved a federal element (for example, the application under s.39B of the Judiciary Act), those claims were merely "intermingled with but incidental and subsidiary to"[14] the competing claims of the parties under the PCA. That is, the substantial controversy between the DPP, Westpac and Aspinalls was raised in the Victorian proceeding and not the FCA proceeding.
[14]Glowtide Pty Ltd v Oceanic Life Ltd (1996) 19 ACSR 471 at 476 per Merkel J
It was further submitted by the DPP that the application should fail because of the lengthy delay by Westpac in applying to transfer the proceeding, even though the question of cross-vesting had been in the minds of Westpac's legal advisers for a considerable time. Ms Gordon referred to the fact that by a letter dated 23 February 2004 Westpac's solicitors wrote to the DPP agreeing that the directions hearing scheduled for the next day should be adjourned and pointing out that they anticipated receiving instructions to file an application to transfer the Victorian proceeding to the Supreme Court of New South Wales. No such application was ever made. Instead, in the course of the argument before Warren CJ on 7 May 2004 senior counsel for Westpac told her Honour that it would be "desirable" if the NSW proceeding were transferred to this Court and resolved at the same time. Again, however, no such application was made.
Ms Gordon referred to four decisions in which, she submitted, delay had been a significant factor in the Court determining to refuse the cross-vesting application. In Lamshed v Lamshed[15], O'Loughlin J held that had the cross-vesting application been made sooner, the proceeding would have been transferred to the Supreme Court of South Australia because the partnership dispute involved State matters. However, due to the unexplained delay of three months in seeking the cross-vesting order, the Federal Court had already heard and determined several interlocutory applications and established a partial regime for the control of partnership assets. In the circumstances, his Honour held that too "much water had passed under the bridge."[16]
[15](1992) 35 FCR 111
[16](1992) 35 FCR 111 at 115
In ECC Lighting Ltd v McGurk[17], a proceeding had been commenced in the Supreme Court of New South Wales in August 1993. Pleadings and affidavits had been exchanged and following an initially contested application the question of liability had been referred by consent to a referee with that hearing scheduled to commence in four days on 19 June 1995. In May 1995, following a change in counsel, the applicant had instituted proceedings in the Industrial Court of New South Wales and on 2 June 1995 had commenced a proceeding in the Federal Court raising for the first time matters under s.52 of the Trade Practices Act 1974 (Cth). In an ex tempore decision Santow J refused the application to remove the proceeding in the Industrial Court into the Supreme Court and then to transfer that proceeding and the Supreme Court proceeding to the Federal Court. His Honour held that:
"the present state of the proceedings and the late application by the Applicant is to my mind a highly relevant matter in the Court exercising its discretion."[18]
Having referred to Lamshed v Lamshed[19], Santow J stated that in his view the present circumstances were "in some ways even more strongly against the Applicant."[20]
[17]Unreported, Supreme Court of New South Wales, 15 June 1995 (BC 950 4958)
[18]BC 950 4958 at pp.2-3
[19](1992) 35 FCR 111
[20]BC 950 4958 at p.3
In Westley v Australian Red Cross Society[21], Beach J refused an application to transfer a proceeding from the Supreme Court of Victoria to the Supreme Court of South Australia in circumstances where there had been a delay of six and a half months between the filing of the writ and the making of the application. During that time the proceeding had been entered in the Major Torts List, directions had been given and the defendant had delivered a defence and given discovery.
[21][1996] 2 VR 24
Finally, in State of Victoria v Levine[22], O'Keefe J refused an application to uplift a proceeding from the District Court of New South Wales into the Supreme Court of New South Wales and to transfer that proceeding to the Supreme Court of Victoria where there had been what was said to be the "considerable delay" of more than five months before making the application. His Honour said that it was:
"unacceptable for a party to wait until the action the subject of an application for transfer is proximate to hearing to make an application for transfer."[23]
[22][2001] NSWSC 592
[23][2001] NSWSC 592 at [39]
It was therefore submitted that the delay of 14 or so months by Westpac before making this application should count significantly against it being granted. Numerous steps (as set out in paragraphs 4 to 12 above) had been taken in the Victorian proceeding in the interim, including even an application to the Court of Appeal. Furthermore, a hearing would have taken place in the Victorian proceeding were it not for Westpac's application to the Court of Appeal and then its transfer application.
Ms Gordon further submitted that insofar as Westpac wished to argue that the decision of the DPP to make the application was invalid, this Court could decide the point because it was simply a matter of construing the PCA and the MAA in order to decide whether the DPP had the power to make the application. She analysed the provisions of the PCA and the MAA in some detail in support of her submission that the MAA clearly did not provide an exclusive code and did not apply to the present factual situation. The MAA, it was submitted, provided for a form of restraining order to be made in Australia in relation to foreign criminal proceedings where a restraining order had been made in the foreign country or was about to be made in a foreign country (see ss.34J and 34K of the MAA).
In his reply Mr Sheahan submitted that it had never been part of Westpac's argument that the Supreme Court of Victoria did not have the jurisdiction to make the restraining and custody orders on the application of the DPP. What Westpac did submit, however, was that this Court did not have the jurisdiction to examine whether or not the DPP had the power to make the application.[24] Mr Sheahan submitted that if any such issue was raised in the Victorian proceeding it would have to be cross-vested to the Federal Court because it involved a "special federal matter".
[24]See Woss v Jacobsen (1985) 11 FCR 243 at 260 per Davies J; Aerolineas Argentinas v Federal Airports Corporation (1993) 32 NSWLR 595 at 614-615 per Ireland J.
Importantly, Ms Gordon's submission about this Court's jurisdiction did not deal with the second limb of Westpac's ADJR challenge, namely the failing to take into account a relevant consideration. However, Ms Gordon submitted that there were statutory answers to this point so that it went nowhere. Again, Mr Sheahan disputed this argument in his reply.
In any event, Ms Gordon submitted that I should make some sort of preliminary assessment of the merits of the challenge to the validity of the DPP's decisions and that I should conclude that there were extraordinary difficulties confronting Westpac in the FCA proceeding. First, Ms Gordon submitted that prerogative relief, even in a constitutional context, was discretionary. Reference was made by way of example in the case of prohibition, mandamus and injunction to Re Refugee Tribunal; ex parte Aala[25] and in the case of certiorari to Re McBain; ex parte Catholic Bishops Conference[26]. Such relief was apt to be refused where an alternative remedy was available. Ms Gordon referred in this context to two decisions of the New South Wales Court of Appeal[27] and a decision of the Full Court of the Federal Court of Australia[28], where it was held that in the exercise of discretion prerogative relief could be refused because of the existence of an alternative remedy such as an appeal. Here, there was an alternative remedy in the Victorian proceeding, namely the second application to set aside the order of Dodds-Streeton J, which Westpac was pursuing.
[25](2000) 204 CLR 82 at [17] and [51]-[54] per Gaudron and Gummow JJ, with whom Gleeson CJ at [5] and Hayne J at [172] agreed; at [148]-[149] per Kirby J; and at [217] per Callinan J.
[26](2002) 209 CLR 372 at [21] per Gleeson CJ; at [80] per Gaudron and Gummow JJ; at [95-96] per McHugh J; at [233-234] per Kirby J; and at [281] per Hayne J
[27]Meagher v Stevenson (1993) 30 NSWLR 736 at 738 per Priestly, Handley and Cripps JJA and Hill v King (1993) 31 NSWLR 654 at 659 per Clarke, Handley and Sheller JJA.
[28]Re Wilcox; ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 at 535 per Black CJ, Cooper and Merkel JJ
The second difficulty for Westpac, which was advanced by Ms Gordon, was that the FCA proceeding was in a sense an abuse of process being a second proceeding dealing with the same issues. Counsel relied on the statement by Santow J in ECC Lighting Ltd v McGurk that:
"It must be an abuse of process to commence proceedings purely to facilitate cross-vesting."[29]
Reliance was also placed on the reference by Santow J to the earlier observation by McLelland CJ in Eq in Wood v Boral Resources[30] that the institution of Federal Court proceedings, after the failure of various applications for interlocutory relief in the Supreme Court and Industrial Court, was strongly suggestive of forum shopping, which was contrary to the public interest and the interests of justice to facilitate or encourage.
[29]BC 950 4958 at p.4. See also Hill v King (1993) 31 NSWLR 654 at 659 per Clarke, Handley and Sheller JJA.
[30]Unreported, Supreme Court of New South Wales, 28 October 1993 (BC 930 2189)
The third difficulty relied upon by the DPP was that there was a significant prospect that the relief sought in the FCA proceeding would be refused because of Westpac's excessive delay in instituting that proceeding on 29 November 2004, some 14 months after it became aware of the DPP's decision to commence the Victorian proceeding. No argument had been put forward justifying a delay from either the ADJR Act perspective or the prerogative relief perspective. The ADJR application in this case was not made "within a reasonable time after the decision was made" (s.11(4) of the ADJR Act). An example of such a refusal in the latter category was Re Wilcox; ex parte Venture Industries Pty Ltd[31] where the Full Court of the Federal Court of Australia described as "inexcusable and inordinate" a delay of 17 to 18 months in making an application for prohibition and certiorari in respect of a decision by Wilcox J to cross-vest a proceeding to the Supreme Court of New South Wales.
[31](1996) 66 FCR 511 at 535 per Black CJ, Cooper and Merkel JJ
Ms Gordon submitted that here not only had there been delay simpliciter, but Westpac had also acquiesced in the continuation of the Victorian proceeding and actively prosecuted some of the many interlocutory steps. She referred to the statement by McInerney J in R v Lilydale Magistrates' Court[32] that:
"… an applicant for certiorari may also be refused relief if it is shown that with knowledge of the facts entitling him to object to a continuance of the legal proceeding, he has not objected but has taken an active part in the proceedings right down to judgment."
[32][1973] VR 122 at 134
It was therefore submitted that it was inappropriate to transfer the Victorian proceeding to the Federal Court given the weakness of Westpac's position in the FCA proceeding. There should be no transfer, the DPP submitted, so that the attack on the jurisdiction of this Court to make the restraining order could be determined by this Court and not the Federal Court.
This argument on behalf of the DPP was in effect encapsulated in the following submission by Ms Gordon. It was said that it could not be in "the interests of justice" for the Victorian proceeding to be transferred when it was more likely than not that the FCA proceeding would be dismissed, with the result that a matter vested in the Supreme Court would be determined by the Federal Court even though there was no remaining Federal matter.
Counsel for the DPP agreed with Westpac's submission that the more usual considerations for determining the appropriate court were neutral in this case.
Aspinalls' Submissions
I was informed by Mr Davis of counsel for Aspinalls that his client had not yet decided its attitude to the transfer application in the NSW proceeding. Nevertheless, Aspinalls supported, or at least did not oppose, Westpac's application that I order that the Victorian proceeding be transferred to the Federal Court. Mr Davis stated that it was Aspinalls' view that there would be some benefit in having the proceedings heard together.
A Subsequent Development
As foreshadowed by counsel for Aspinalls, I was subsequently advised of the outcome of the transfer application in the NSW proceeding. On 8 April 2005 Bergin J ordered by consent that the NSW proceeding be transferred to the Federal Court of Australia, Sydney Registry.
Resolution of the Application
It seems to me that the cross-vesting legislation anticipates at least two different situations. One is where there is only one proceeding and the question for determination is whether that single proceeding should be heard in court A or court B. BHP Billiton Limited v Schultz[33] is an example of such a situation. But that is not this case. A second situation is where there are two proceedings between the same or similar parties raising related issues commenced in two different courts and the question for determination is whether the proceedings should continue in separate courts or whether the proceeding in one court should be transferred to the other court so that both proceedings can be dealt with by the same judge.
[33][2004] HCA 61
In Glowtide Pty Ltd v Oceanic Life Ltd[34], Merkel J held that a Federal Court proceeding commenced on 22 February 1996 should be transferred to the Supreme Court of New South Wales where there was a proceeding involving the same parties which had been commenced on 21 February 1996. In his reasons Merkel J stated that:
"The cross-vesting scheme was enacted, inter alia, to avoid fragmentation in the determination of disputes between essentially the same parties in different courts.
…
The interests of justice clearly require that 'the matter', as I have defined it, proceed to a determination in only one court. The cross-vesting scheme was enacted, inter alia, for the purpose of enabling that outcome."[35]
[34](1996) 19 ACSR 471
[35](1996) 19 ACSR 471 at 474 at 475
It is this aim of avoiding the "fragmentation in the determination of disputes" which, in my opinion, leads to the conclusion that the "interests of justice" require that the Victorian proceeding be transferred to the Federal Court. I consider that, other things being equal, the interests of justice are generally better served by parties being able to litigate all of the issues in their dispute in the one court rather than having to deal with some issues in one court and other issues in a second court. Clearly the most efficient way of managing two related proceedings is to have one judge deal with both of them. Apart from eliminating the risk of inconsistent decisions on overlapping issues, there has to be, in my opinion, the possibility of a significant saving in costs if all issues are litigated in the one court.
I accept that it would be "an abuse of process to commence proceedings purely to facilitate cross-vesting."[36] There was nothing in the facts of this case, however, to suggest that Westpac has engaged in improper forum shopping. It seems to me that the FCA proceeding has to be regarded as a bona fide forensic tactic. It was commenced by Westpac in an attempt to undermine the validity of the decisions of the DPP because of the fact that a possible consequence of those decisions, if they are not set aside, is that Westpac stands to lose about $7 million. As the relief sought in the FCA proceeding was under the ADJR and the Judiciary Act, the attack on the validity of the decisions of the DPP had to be brought in the Federal Court. The grounds relied on by Westpac are "special federal matters" within the meaning of the VCVA. Thus, Westpac had no choice but to issue in the Federal Court, and there is really no question of that proceeding being cross-vested to the Supreme Court of Victoria.
[36]ECC Lighting Ltd v McGurk BC 950 4958 at p.4 per Santow J
Counsel for the DPP was unable to point to any forensic advantage which Westpac was unfairly seeking to gain by the transfer application. This position is to be contrasted with that in ECC Lighting Ltd v McGurk[37] where transferring the proceedings to the Federal Court would probably have enabled the applicant to abort the hearing by the referee due to commence in four days' time on the contested question of liability only. Santow J stated that the hearing by the referee was clearly a matter which the applicant wished "to defer or avoid".[38]
[37]BC 950 4958 at pp.4-5
[38]BC 950 4958 at p.7
It may be, although I do not consider it appropriate for me to express any view, preliminary or otherwise, that Westpac's case to overturn the decisions of the DPP is weak. That is a matter for argument and determination on another day by another judge. However, notwithstanding the submission on behalf of the DPP, I do not see that there would be anything contrary to the interests of justice for the Federal Court to have to determine the forfeiture and exclusion questions under the PCA raised in the Victorian proceeding in circumstances where Westpac's claims raising the federal matters in the FCA proceeding had already failed. As counsel for Westpac explained, the application to set aside the restraining and custody orders made by Dodds-Streeton J was not that this Court did not have the jurisdiction to make those orders but that the DPP did not have the power to make the application. That matter can just as easily be decided by the Federal Court as by this Court.
There is no doubt that Westpac has delayed for quite some time in making its application to review the decisions of the DPP. Were that application to succeed then many of the numerous steps taken in the Victorian proceeding would have been unnecessary. This delay may well have a detrimental effect on the outcome of Westpac's review application. Again, that is a matter for the judge hearing that application. Furthermore, as Mr Sheahan submitted, in the event of the review application being successful, costs orders could be framed to produce a just result taking into account the wasted costs incurred in respect of those steps.
In my opinion, it cannot be said that Westpac has delayed in making the transfer application. This is because the summons seeking the cross-vesting order was issued on the very same day as Westpac commenced the FCA proceeding. Thus, the question of transferring the Victorian proceeding to the Federal Court did not arise before then. It is not really to the point, in my opinion, that Westpac may have previously considered, but not pursued, the question of transferring the Victorian proceeding to the Supreme Court of New South Wales or the NSW proceeding to this Court. The situation changed when Westpac issued its proceeding in the Federal Court.
I must confess that I have some difficulty in understanding why delay in making a transfer application should on its own be considered a disqualifying factor. For example, the fact that pleadings might have been delivered and discovery of documents given in one court is hardly a reason for refusing to transfer the proceeding to a second "more appropriate" court. Such steps are hardly going to be wasted even if the proceeding is cross-vested. This is not to say, however, that cross-vesting applications should not be brought promptly. It is obviously desirable to have the question of the appropriate court resolved at an early stage. Nevertheless, situations do change and this may, as here, justify a transfer application at a much later stage.
In any event, it is important to note that in three of the four cases relied on by counsel for the DPP on this question of delay, there were other more important grounds for refusing the application. In ECC Lighting Ltd v McGurk[39], the hearing before the referee was due to commence in four days and transferring the proceeding to the Federal Court was likely to result in that hearing date being vacated. This also raised the suggestion of forum shopping referred to in paragraph 60 above.
[39]BC 950 4958
In Westley v Australian Red Cross Society[40], Beach J held that "to now transfer this proceeding to South Australia may cause the plaintiff significant prejudice" in terms of a lost opportunity to make an application to the South Australian Supreme Court for an extension of time to institute the proceeding in that State. His Honour also referred to a number of factual matters which clearly showed a greater connection with Victoria than South Australia.
[40][1996] 2 VR 24 at 25
In State of Victoria v Levine[41], the principal basis on which O'Keefe J refused the application was that if the case remained in the District Court a hearing was likely in not more than five months whereas if it was transferred to Victoria it was said that there would be a probable delay of some 18 months before the matter came on for hearing. His Honour described such a delay as a "severe injustice especially to a lady of Mrs Levine's age".[42] The second basis for refusing the application was the extra costs which would be incurred as a result of the matter being transferred. His Honour regarded this consequence for a pensioner such as Mrs Levine as "a very severe imposition" and "unjust".[43] Only then did his Honour "advert" to the "further matter" of delay.[44]
[41][2001] NSWSC 592
[42][2001] NSWSC 592 at [35]
[43][2001] NSWSC 592 at [36]
[44][2001] NSWSC 592 at [39]
There does not appear to have been any reason other than the three month delay for the refusal by O'Loughlin J to grant the transfer application in Lamshed v Lamshed[45]. Nevertheless, I respectfully query why the delay changed what his Honour obviously considered to be a proceeding which should have been heard by the Supreme Court, because it involved State matters, into a proceeding which should in the interests of justice remain in the Federal Court. With the greatest of respect I suggest that a different result might be reached today given the High Court's emphasis in BHP Billiton Limited v Schultz on simply deciding which is the more appropriate court to hear the dispute.
[45](1992) 35 FCR 111
For all of the above reasons I consider that Westpac's application should be granted and that this proceeding should be transferred to the Federal Court of Australia, Sydney Registry.
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