JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (CTH) -v- COURTENAY INVESTMENTS LIMITED [2011] WADC 52 CORAM : BRADDOCK DCJ HEARD : 31 JANUARY 2011 DELIVERED : 1 APRIL 2011 FILE NO/S : POC 2 of 2010 MATTER : IN THE MATTER of Applications pursuant to s 19 and s 49 of the Proceeds of Crime Act 2002
AND
IN THE MATTER of a sum of $885,003.47 held by the Official Trustee in Bankruptcy, plus interest
AND
IN THE MATTER of
BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Applicant
AND
COURTENAY INVESTMENTS LIMITED
HAPPLE LIMITED
DAVENRITE LIMITED
First Defendant
STUART ADRIAN CORP
Second Defendant
(Page 2) Catchwords: Abuse of process - Proceeds of Crime Act 2002 (Cth) - Res judicata - Estoppel - Forfeiture - Restraining order - Final orders Legislation: Proceeds of Crime Act 2002 (Cth), s 17, s19, s 39, s 42, s 45, s 49, s 60, Result: Application dismissed Representation: Counsel:
Applicant : Ms W Abrahams QC
First Defendant : Mr M L Bennett
Second Defendant : Mr G W Massey
Solicitors:
Applicant : Commonwealth Director of Public Prosecutions
First Defendant : Lavan Legal
Second Defendant : Holborn Lenhoff Massey
Case(s) referred to in judgment(s):
Brisbane City Council v Attorney-General (Qld) [1979] AC 411
Chamberlain v Deputy Commissioner of Taxation (ACT) (1988) 164 CLR 502
Consolaro v Consolaro [2002] WASC 92
Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217
PNJ v The Queen [2009] HCA 6
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Walton v Gardiner (1993) 177 CLR 378
Williams v Spautz (1992) 174 CLR 509
Willoughby v Clayton Utz [No 2] [2009] WASCA 29, (2009) 40 WAR 98
(Page 3)
1 BRADDOCK DCJ: This is a chambers summons brought on behalf of the first defendants, Courtenay Investments Ltd, Happle Ltd and Davenrite Ltd, filed on 21 October 2010, (as amended), who seek orders that:
1. The whole of the applicant's originating summons for a restraining order pursuant to s 19 and a forfeiture order pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) filed on 29 April 2010 be struck out on the grounds that: (i) it is an abuse of process of the court; (ii) it fails to disclose a reasonable cause of Action; (iii) it is scandalous, frivolous or vexatious. 3. The restraining order of the Honourable Acting Chief Judge Martino made on 10 June 2010 be vacated. 4. The order staying the order of the Honourable Judge Sweeney be set aside. 5. The proceedings be dismissed. 6. The applicant pay the costs of the application and the Action forthwith to be taxed if not agreed.
The background 2 On 23 April 2010 the Commonwealth Director of Public (DPP) Prosecutions filed an originating summons seeking amongst other orders, a restraining order pursuant to s 19 of the Proceeds of Crime Act 2002 (Cth), (the Act) in respect of $885,003.47, together with interest, held by the Official Trustee in Bankruptcy, following earlier proceedings (the Funds) and other orders. 3 The three corporations named as first defendants claim ownership of the Funds. Mr Stuart Adrian Corp, second defendant, originally held shares of which the Funds are the proceeds of sale. ASIC conducted an investigation into dealings with those shares in 1998 which initiated the train of events set out in the chronology below.
Chronology 4 A brief chronology of the relevant dates is as follows: (Page 4)
23 January 1998: an offence is alleged to have been committed by Mr Corp contrary to s 1317FA of the Corporations Law (the offence). 4 June 1998: freezing orders made over the subject property pursuant to s 73 of the Australian Securities Commission Act 1989 (Cth). May/June 1999: freezing orders varied to allow the shares to be sold with the proceeds of sale to be deposited into an ASIC trust account. 5 January 2004: Mr Corp convicted in District Court on an indictment containing the offence (count 32A) and other offences following a jury trial. 5 October 2007: a conviction based forfeiture application made in the criminal proceedings pursuant to s 48(2) of the Act. 17 June 2008: Court of Appeal quashed the convictions of the M Corp, ordered him to be re-tried on counts including the relevant offence, count 32A. 11 July 2008: District Court restraining order made pursuant to s 17 of the Act (CIVO 82 of 2008). 22 August 2008: DPP discontinues prosecution against Mr Corp. 3 October 2008: orders made in the District Court dismissing CIVO 82 of 2008 with consequential orders. 19 February 2010: Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth) came into effect (significant changes to the Act). 23 April 2010: DPP applies for a restraining order pursuant to s 19 and the forfeiture order pursuant to s 49 of the Act. 6 May 2010: Mr Corp appeared before Martino CJDC, application for restraining order adjourned to 10 June 2010; par 2(a) of orders of Sweeney DCJ, dated 3 October 2008 stayed until further order. (Page 5)
10 June 2010: CJDC makes a restraining order pursuant to s 19(2)(b) of the Act;. 10 September 2010: directions, adjourned; 21 October 2010: chamber summons filed by the first defendants Courtenay and Happle to strike out the originating summons filed 23 April 2010; 25 October 2010: 'programming' orders made, Davenrite joined as a party; 5 November 2010: first defendants file an outline of submissions; 19 November 2010: DPP files responding submissions; 7 December 2010: Davenrite files conditional appearance; 10 December 2010: chamber summons for exclusion orders pursuant to s 29 and s 73 of the Act filed on behalf of the first defendants; 23 December 2010: first defendants file responsive submissions to those filed by the applicant on 19 November; 31 January 2011: first defendants file affidavit confirming their reinstatement to company registers in British Virgin Islands and Gibraltar.
Legislative framework under the Proceeds of Crime Act 2002 5 Part 2-1 of the Act makes provision for the making of restraining orders. Within that part, s 17 makes provision for the making of restraining orders in respect of people convicted of, or charged with, indictable offences. Section 18 empowers a court to make restraining orders in respect of people suspected of committing certain offences. Section 19 makes provision for the making of a restraining order in respect to property in certain circumstances. It is in the following terms:
19 Restraining orders-property suspected of being proceeds of indictable offences etc When a restraining order must be made (1) A court with proceeds jurisdiction must order that: (Page 6)
if: (c) the DPP applies for the order; and (d) there are reasonable grounds to suspect that the property is: (e) the application for the order is supported by an affidavit of an authorised officer stating that the authorised officer suspects that: and including the grounds on which the authorised officer holds the suspicion; and (f) the court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds. Property that a restraining order may cover (2) The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is: (Page 7)
Refusal to make a restraining order Restraining order need not be based on commission of a particular offence (4) The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular offence. Risk of property being disposed of etc. (5) The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with. 6 Section 19 was amended by the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 [No 3 2010 Cth] which relevantly came into effect on 20 February 2010. Prior to that amendment, s 19(1)(d)(ii) and s 19(1)(e)(ii) referred to a 'terrorism' offence not a 'serious' offence. 7 Division 2 of pt 2-1 makes provision for the procedure to be adopted on application for a restraining order, in s 25, s 26. Division 3 provides in s 29 for the exclusion of property from certain restraining orders. Section 31 provides for the application for such an exclusion order. 8 Division 5 deals with further orders that may be made and at s 38 provides that the court may order the official trustee to take custody and control of property or specify property covered by a restraining order if the court is satisfied that that is required. 9 Section 39 makes provision for ancillary orders in the following terms. (Page 8)
39 Ancillary orders (1) The court that made a restraining order, or any other court that could have made the restraining order, may make any ancillary orders that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders: (a) an order varying the property covered by the restraining order; (b) an order varying a condition to which the restraining order is subject; (c) an order relating to an undertaking required under section 21; (ca) an order directing the suspect in relation to the restraining order to give a sworn statement to a specified person, within a specified period, setting out all of his or her interests in property, and his or her liabilities; (d) an order directing the owner or a previous owner of the property (including, if the owner or previous owner is a body corporate, a specified director of the body corporate) to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property; (da) if the court is satisfied that there are reasonable grounds to suspect that a person (other than the owner or a previous owner) has information relevant to identifying, locating or quantifying the property—an order directing the person to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property; (e) if the Official Trustee is ordered under section 38 to take custody and control of property: (Page 9)
(iii) an order directing any person to do anything necessary or convenient to enable the Official Trustee to take custody and control of the property; (f) an order giving directions about the operation of the restraining order and any one or more of the following: (i) a forfeiture order that covers the same property as the restraining order; (ii) a pecuniary penalty order or a literary proceeds order that relates to the same offence as the restraining order; (g) an order requiring a person whose property is covered by a restraining order, or who has effective control of property covered by a restraining order, to do anything necessary or convenient to bring the property within the jurisdiction. 10 Pursuant to s 42 of the Act an application may be made to revoke a restraining order.
42 Application to revoke a restraining order (1) A person who was not notified of the application for a restraining order may apply to the court to revoke the order. (1A) The application must be made: (a) within 28 days after the person is notified of the order; or (b) if the person applies to the court, within that period of 28 days, for an extension of the time for applying for revocation - within such longer period, not exceeding 3 months, as the court allows. (2) The applicant must give written notice to the DPP and the Official Trustee of both the application and the grounds on which the revocation is sought. (3) However, the restraining order remains in force until the court revokes the order. (4) The DPP may adduce additional material to the court relating to the application to revoke the restraining order. (5) The court may revoke the restraining order if satisfied that: (Page 10)
11 Further, s 45 makes provision for the cessation of certain restraining orders:
45 Cessation of certain restraining orders (Page 11)
Restraining orders and forfeiture orders etc. (3) A restraining order ceases to be in force in respect of property covered by the restraining order if: (a) either: (i) the court refuses an application for a forfeiture order that would havecovered the property; or (ii) the court excludes the property from a forfeiture order; or (iii) a forfeiture order that covers the property is discharged or ceases to have effect; or (iv) the court excludes the property under section 94 from forfeiture under Part 2-3; and (b) in the case of a refusal of an application for a forfeiture order: (c) no application for another confiscation order relating to: (Page 12)
(d) no other confiscation order relating to such an offence is in force. (4) A restraining order ceases to be in force to the extent that property that it covers vests absolutely in the Commonwealth under Division 4 of Part 2-2 or Division 1 of Part 2-3. 12 Part 2-2 of the Act deals with forfeiture orders and provides, in s 49, for the forfeiture of property suspected in specified circumstances.
49 Forfeiture orders—property suspected of being proceeds of indictable offences etc (1) A court with proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if: (a) the DPP applies for the order; and (b) the property to be specified in the order is covered by a restraining order under section 19 that has been in force for at least 6 months; and (c) the court is satisfied that one or more of the following applies: (i) the property is proceeds of one or more indictable offences; (ii) the property is proceeds of one or more foreign indictable offences; (iii) the property is proceeds of one or more indictable offences of Commonwealth concern; (iv) the property is an instrument of one or more serious offences; and (d) repealed; (e) the court is satisfied that the DPP has taken reasonable steps to identify and notify persons with an interest in the property. (2) A finding of the court for the purposes of paragraph (1)(c): (a) need not be based on a finding that a particular person committed any offence; and (Page 13)
(b) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in paragraph (1)(c) was committed. (3) Paragraph (1)(c) does not apply if the court is satisfied that: Refusal to make a forfeiture order (4) Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied: 13 Division 3 of that part provides for the procedure on application for a forfeiture order. Section 60 makes provisions in relation to additional applications for a forfeiture order:
60 Additional application for a forfeiture order (1) The DPP cannot, unless the court gives leave, apply for a forfeiture order under a section of Division 1 in relation to an offence if: (a) an application has previously been made: (Page 14)
for the forfeiture or condemnation of the property in relation to the offence; and (b) the application has been finally determined on the merits. (2) The court must not give leave unless it is satisfied that: (3) To avoid doubt: 14 The application made by the DPP on 23 April 2010 was based upon the property being suspected of being the instrument of a serious offence under s 19, in relation to the application for a restraining order and under s 49, in relation to the application for the forfeiture order. 15 Prior to 20 February 2010 an applications would not have been available to the Commonwealth.
The current application 16 The originating summons sought: (Page 15)
The sum of money being $885,003.47 as at 31 March 2010 plus interest accrued thereafter, held by the Official Trustee in Bankruptcy on behalf of: a) Davenrite Limited, a company incorporated in the Territory of the British Virgin Islands; b) Courtenay Investments Limited, a company incorporated in the Territory of the British Virgin Islands; and c) Happle Limited, a company incorporated in Gibraltar, must not be disposed of or otherwise dealt with by any person. 3. Pursuant to s 38 of the Act, the Official Trustee in Bankruptcy is to retain Custody and Control over the property referred to in paragraph 2 above. 4. The Official Trustee in Bankruptcy may, in the exercise of its powers and the performance of its duties pursuant to an Order granted herein, deposit or invest any monies coming into its hands or under its control by paying the same to the credit of an account in its name and under its control at such bank or other financial institution as it may consider proper, provided nothing herein contained shall authorise any such payment into the Common Investment Fund established pursuant to section 20B of the Bankruptcy Act 1966 (Cth). 5. Pursuant to section 49(1) of the Act the property referred to in paragraph 2 above be forfeited to the Commonwealth of Australia. 6. There be liberty to apply for further orders. 7. Such further or other order that the Court considers appropriate. 17 The final relief sought by the DPP is the forfeiture of the Funds to the Crown pursuant on s 49 of the Act, as is acknowledged in the written submissions of the first defendants filed 19 November (at par 1). Pursuant to s 19 of the Act restraint of the Funds is a pre-condition to forfeiture, which can only be pursued after a period of six months following a restraining order, by reason of s 49(1)(b). It is not the only condition, s 49(1) must be satisfied and it is subject to the s 49(4) as set out above. 18 Under Part 2-1 of the Act restraining orders may be sought against property on grounds that anticipate possible forfeiture or confiscation orders: s 16. A restraining order is a provision to preserve property pending the occurrence of certain events or the proof of relevant matters. It was not argued otherwise and in submissions referred to as 'an (Page 16)
interlocutory restraining order'. The procedure and conditions for obtaining such an order are governed by the Act. 19 The current chambers summons, filed after the restraining order was made on 10 June 2010, seeks relief based on the following: 1. that the CJDC had no jurisdiction to stay a 'final order' of another Judge of the court; 2. that the proceedings for a restraining order involve the same cause of Action as was previously dismissed in CIVO 82/2008, founded upon the same facts and evidence, and in those circumstances, are an abuse of process, by reason of: 3. that due to the discontinuance of the prosecution against Mr Corp and the absence of any fresh evidence deposed to since that time the evidence in support of the application for the restraining order was fundamentally flawed; 4. that the new proceedings are a collateral attack on an earlier judgment; 5. that it is oppressive and vexatious to litigate in new proceedings a matter that has been previously disposed in earlier proceedings. 20 The process under consideration is directed ultimately to the release of the Funds from any further claim to forfeiture and their distribution to the now reinstated companies, the first defendants. In submissions counsel for the first defendants focused mainly upon the restraining order. 21 The second order sought in the current application, if granted in terms, would amount to countermanding orders of the Martino CJDC made previously on the application and could only be considered, in my view, as a consequential order on the striking out of the originating process. 22 The third order, the stay of Sweeney DCJ's order, is linked to the restraining order and in my view dependent upon it. The order was that (Page 17)
the Funds be paid to the first defendants by reference to certain percentages, which order could not stand in face of the further restraint of the Funds. The stay was granted on 6 May 2010, upon an interim basis, to preserve the subject matter of the litigation, pending further consideration of the application for the restraining order. 23 The first defendants argue that the orders made by Sweeney DCJ were 'final orders' in the 'action', thus founding the abuse of process argument upon which they rely. 24 No evidence was filed in support of the application to strike out the originating summons. Any prejudice or detriment is left to be inferred.
1. The restraining order 25 An order that the restraining order be 'vacated', is equivalent to its revocation. In my view, it is a distinction without a difference. The application is to strike out the originating summons upon which the order was made. As the order has been made, in my view, it could not standing alone be simply 'vacated' as: 1. the application seeks to set aside an order made by a judge of equivalent jurisdiction, without resort to appeal or other statutory authority; 2. the Act provides a detailed framework for dealing with restraint of property, in the context of s 16, and, in s 42, a mechanism whereby restraining orders may be revoked which permits consideration of whether it is in the public interest to continue the order. 26 The first defendants were not present or represented on the first appearance of this matter before the court in May 2010, nor were they represented on 10 June 2010 when the order was made. There is little evidence as to when or how they were actually notified of the application or the order. It was not argued that they were precluded from seeking relief under Act. An application to set aside the restraining order under s 42 might appropriately have been brought, once they had notice of it, by the first defendants. 27 Upon the hearing of an application under s 42, the court may revoke the order if satisfied: (a) there are no grounds on which to make the order at the time of considering the application to revoke the order; or (Page 18)
(b) it is otherwise in the interests of justice to do so. 28 The grounds relied upon in support of the chamber summons could be raised in support an application to revoke the order in the interests of justice pursuant to s 42. 29 Section 31 of the Act provides for an application to exclude property under s 29, from a restraint order. This application has now been made, rather curiously, on 10 December 2010. 30 The application of the first defendants, relying upon the doctrine of abuse of process, seeks to deal fundamentally with the whole proceedings. Consistent with this, the order seeking to vacate the restraining order viewed as consequential upon the underlying relief claimed, could only be made if the originating process were struck out.
2. The forfeiture application 31 A restraining order is a necessary precursor to an application for a forfeiture order, but it is not the final relief sought by the DPP under the Act, which is the forfeiture of the Funds to the Crown as set out in order 5 of the originating summons. This application would not proceed until six months after the restraining order had been made. 32 Upon consideration of an application for forfeiture, if all other preconditions for forfeiture are met, s 49(4) of the Proceeds of Crime Act provides: 4) Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied: 33 This subsection, which applies in this instance as the Funds are not alleged to be related to terrorism or proceeds, would enable the matters argued in support of the abuse of process allegation to be advanced in support of the argument that it was not in the public interest ultimately to make the forfeiture order, given the earlier restraint applications and the disposition of the criminal proceedings involving Mr Corp. (Page 19)
34 The transcript of proceedings on 10 June 2010 shows that, on the making of the restraining order, the Chief Judge clearly indicated that he anticipated that either an application for an exclusion order would be made, and/or that he was programming the matter with a view to a hearing on the application for forfeiture of the Funds.
3. The stay of Sweeney DCJ's orders 35 The orders of Sweeney DCJ's dealt with the proportions in which the Funds then held by the OTB as at October 2008 were to be distributed to defendants. The orders were entitled: 36 The Funds had previously been held, pursuant to the restraining order of 11 July 2008, which lapsed 28 days after the DPP filed a notice of discontinuance of the retrial of Mr Corp on 20 September 2008. The Official Trustee in Bankruptcy still held the Funds. He had no authority to retain the Funds. The orders were made in those circumstances, including the percentages applying between the three first (Page 20)
defendants. The first defendants were deregistered in their jurisdictions of origin and the Funds remained unclaimed after October 2008 and were not distributed. 37 Upon the making of the s 19 restraining order, it is arguable whether it was necessary to stay the order, given the provisions of s 37 of Act, which provides that no person can deal with the restrained property. 38 It is at this point that the interrelated nature of arguments becomes apparent. The first defendants also rely upon stay of Sweeney DCJ's order in support of the abuse of process argument as a 'final order' which could only be varied on appeal.
Abuse of process 39 The first defendants invoke the inherent jurisdiction of the court to intervene to prevent an abuse of process of the court and to forestall the revisitation of matters previously adjudicated: Brisbane City Council v Attorney-General (Qld) [1979] AC 411. There is no dispute from the DPP that this is a jurisdiction may be exercised in appropriate circumstances. 40 In support of the abuse of process argument, the first defendants point to the fact that this is the third occasion upon which the Funds have been restrained. The original application, pursuant to s 17 of theAct, was made on the basis that Mr Corp was to be charged with an offence. The offence which was relied upon giving rise to the necessary suspicion in relation to the Funds was: That on or about 23 January 1998 at Perth in the State of Western Australia, Stewart Adrian Corp did commit an offence against subsection 1317FA of the Corporations Law (as taken to be included in the Corporations Act 2001 (Cth) by section 1401 of the Act), in that being an officer of the Welcome Stranger Mining NL he contravened subsection 232(2) of the Corporations Law, in that he intentionally deceived Welcome Stranger Mining NL and its members thereby failing to act honestly in the exercise of his powers and the discharge of his duties of office. 41 The application relied upon affidavit material sworn by Federal Agent Drinkwater on 24 December 2003. Mr Drinkwater deposed to his suspicion that Mr Corp had committed the offence and that the property was an instrument of that offence. Upon that application an order was made, shortly thereafter Mr Corp was charged, and subsequently convicted of the offence and other offences following a jury (Page 21)
trial in the District Court. An application for a conviction based forfeiture order was made. 42 Mr Corp appealed, and his conviction was quashed in the Court of Appeal, subject to an order for retrial on the offence under consideration. By s 45(1)(c) of the Act, the quashing of the conviction had the effect of causing the original restraining order made to lapse. As at that point in time Mr Corp was to be retried on the subject offence, a further application was made to restrain the Funds, pursuant to s 17, which was District Court CIVO 82 of 2008. The application relied upon affidavit material sworn by Federal Agents Perrot, Quinn and the earlier affidavit of Federal Agent Drinkwater. Upon hearing the application an order was made pursuant to s 17 of the Act. Subsequent to that, the Commonwealth director discontinued the criminal proceedings against Mr Corp. 43 It is argued for the first defendants that in requesting that CIVO 82 of 2008 be dismissed, together with the other orders made after the discontinuance of the criminal indictment, that 'final orders' were made disposing of the 'action' in relation to the subject property the Funds. 44 It is argued that the current application seeking restraint and ultimate forfeiture of the funds is the same action, which had been dismissed, by consent, based upon the same evidential material. It is said that the parties are entitled 'in law and in equity to rely on the finality of a litigation' referring to Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217. On this basis the first defendants say that application for the current orders is an abuse of process of the court. 45 The argument was also expressed in terms that the application was the third for a restraining order based on the same material and thus was contrary to principle, relying on the fact that a consent judgment may put a stop to litigation between the parties, without investigation of the merits by the court and relies upon Consolaro v Consolaro [2002] WASC 92 and Chamberlain v Deputy Commissioner of Taxation (ACT) (1988) 164 CLR 502, 508. 46 In effect, the first defendants say they were entitled to rely on the director's intention to conclude the earlier proceedings as a bar to the present action. It was submitted that final relief was only unavailable to the DPP because of its own actions in not proceeding with the criminal prosecution. The assertion is that the current application is precisely the same cause of action, founded upon the same offence relating to the same property arising out of the same facts. (Page 22)
47 Oppression was alleged although not argued in any detail, but no specific facts or matters were referred to or relied upon, save the implied prejudice of having to deal with the proceedings now brought. 48 No issue is taken by the DPP that the current application relies upon the same underlying set of facts and substantially the same affidavit material.
Commonwealth DPP arguments 49 In response to the application, the DPP raised a number of matters: 50 Firstly, that the discontinuance of the criminal proceedings had no bearing upon the sufficiency or otherwise of the evidence available in support of the application. There was a fundamental difference between the DPP's role in determining whether or not proceedings on indictment should be continued and the DPP's role in the recovery of proceeds of crime. The submission was made that the fact that the DPP had not proceeded on the indictment did not mean that there was any doubt as to the proof available on the charge in question. Many factors were considered in relation to a decision to retry an accused. As an order for retrial had been made, the Court of Appeal must have been satisfied that there was evidence upon which a properly instructed jury could convict. It was therefore futile and improper to speculate as to the reasons of the DPP. 51 Secondly, the Commonwealth pointed to s 60 of the Act, which, whilst not directly applicable, it was submitted clearly contemplates there may be more than one application for forfeiture. 52 Thirdly, and the main thrust of the DPP's argument, the current application of the DPP for forfeiture did not exist until the amendments to the Act were promulgated in 2010. 53 The DPP's submission invited analysis of the orders made on 3 October 2008. Insofar as the argument of the first defendants was based upon merger or res judicata it was said to be vital to know what it was that occurred in 2008. The DPP referred to the heavy onus upon those who assert an abuse of process, and that such powers are only to be exercised in exceptional circumstances with reference to Walton v Gardiner (1993) 177 CLR 378; Williams v Spautz (1992) 174 CLR 509and Willoughby v Clayton Utz [No 2] [2009] WASCA 29, (2009) 40 WAR 98. (Page 23)
54 The DPP's submitted that nothing 'merged' and the orders made were ancillary orders, due to the fact that the restraining order previously made under CIVO 82 of 2008 had by that stage already lapsed, as a matter of law, after the filing of the discontinuance. Those proceedings had been based upon criminal charges, pursuant to s 17 of the Act. The matter was brought before Sweeney DCJ due to the fact that the official trustee in bankruptcy still held the Funds. The DPP's argument was that nothing was actually determined in 2008 at all, there was not consideration on the merits, the proceedings lapsed, and nothing could have merged into a judgment as a result of the consent orders. 55 Expressed another way, the only decision made was that of the DPP to discontinue the criminal proceedings, as a result of which, the proceedings in 2008 lapsed, and the basis of the application now under review did not arise until 2010 when it was created by statute. The prior matter according to the DPP had not been litigated or determined on the merits or otherwise. 56 On the issue of the stay of Sweeney DCJ's orders, the DPP pointed to the fact that, at the time it was made initially it was an interim measure pending the consideration of the restraining order and that there was no need in terms for a stay, once the restraining order was made under s 19 of the Act. 57 The DPP also argued that no actual prejudice has been pointed to by the first defendants in support of any oppression for the purposes of the allegation of abuse of process.
Discussion 58 The principles underlying the concept of abuse of process, in the context of prior proceedings, however described, were not the subject of argument before me in this case, which turns upon the application of those principles upon analysis of the facts. 59 The doctrine of abuse of process was considered by the High Court in PNJ v The Queen [2009] HCA 6, where the court said at [3]: (Page 24)
60 The application of the first defendants falls under third category of that analysis, res judicata. 61 Res judicata was recently the subject of consideration by Pullin JA in Willoughby v Clayton Utz [No 2], acknowledging the now well recognised distinction between res judicata and issue estoppel [12] and approving the characteristics of res judicata described academically 14], which include that there must be a judicial decision, final and on the merits. 62 The arguments of the first defendants require consideration and analysis of the processes previously invoked in relation to the Funds. In my view, the forfeiture of the Funds is the result sought by the DPP via a series of specific statutory provisions. The cause of action cannot, logically, be the restraint of the Funds. A restraining order is not a final order, but is a means of preserving property pending the disposition of any application for forfeiture. The underlying action can be described as an action for forfeiture, based on the statutory grounds invoked on the application. 63 Although the subject matter of the proceedings is common throughout the history of this matter, (save for the fact that originally the shares were restrained), and the interim holding mechanism adopted is the same method, the statutory grounds upon which the DPP makes the application currently are distinct from those that applied earlier, although seeking the same remedy. The initial proceedings for restraint were under s 17 of the Act, a conviction based mechanism, giving rise to an application by s 48(2) for forfeiture, which fell away upon Mr Corp's appeal. The current application is under s 19, for the restraint, and s 49, for the forfeiture of the Funds. No application for forfeiture had been made in connexion with the restraining order of July 2008. 64 In my opinion, considering those matters, it is clear that there has been no determination of any application for forfeiture on the merits, or at all, in the course of these proceedings, under any section of the Act. The issue has never been argued, on any basis, and its progress has been governed by the provisions of the Act, in conjunction with the criminal indictment against Mr Corp. Following the decision not to retry Mr Corp, (Page 25)
there was no mechanism under the Act for proceedings to be taken in relation to the Funds in 2008. 65 This demonstrates clearly differences between the earlier proceedings and these proceedings. It makes apparent the fact that there was no action to be taken until the passage of the amending legislation in February 2010. In my view, this is a fresh action under the Act, for the making of both restraining order and a forfeiture order under s 19 and s 49. The argument that the principles of res judicata could be applied in these circumstances fails. 66 Neither can the orders of 3 October 2008 raise an issue estoppel by reason of the consent dismissal of the proceedings. The restraining order proceedings were not determined by the parties, or the court, but fell away due to the provisions of s 45 of the Act. 67 There is no room, in these circumstances, for any argument based upon an 'Anshun' estoppel, as the applications under s 19 and s 49 could not have been raised in relation to the Funds before the Act was amended. The proceedings could not have been continued as CIVO 82 of 2008. 68 In 2008 the s 17 application restraining order ceased to have any effect due to the provisions of s 45. No application for forfeiture could have been brought based upon it. Accordingly there was no determination of the substance of the issue between the parties, which would have been forfeiture based upon the conviction of Mr Corp for a relevant offence, and no other basis could have been raised at that time. 69 Thus there is no scope for res judicata. The 'dismissal' of the 'action in 2008 in the particular statutory framework was strictly unnecessary and not determinative of any issue. 70 The other orders then made by Sweeney DCJ were, both on the face of the orders and in practical terms, ancillary pursuant to s 39. In my view, order 2(b) cannot be relevantly described as a 'final order' in any action. It directed the Official Trustee in Bankruptcy as to how to distribute the Funds. That was all.
Conclusion 71 For those reasons, I am not persuaded that the first defendants have established that the originating summons is an abuse of the court's process, nor that the pursuit of the relief sought in that originating (Page 26)
summons is oppressive such as to justify striking out of the originating summons. 72 Argument may be advanced as to the public interest in making the forfeiture order if pursued by the DPP, upon the hearing of that application pursuant to s 49(4) of the Act. Evidence may be lead to challenge the materials relied upon by the Crown and arguments as to its sufficiency ultimately made as considered appropriate. These exercises have not been previously undertaken. 73 Finally, in my opinion, there being no basis to strike out the process in its entirety, it would be inappropriate to consider the 'vacation' of the restraining order or the stay alone, for the reasons set out above. 74 The application of the first defendants is dismissed.
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