Director of Public Prosecutions (Vic) v Navarolli

[2006] HCATrans 327

[2006] HCATrans 327

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M15 of 2006

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS (VIC)

Applicant

and

EMIDIO NAVAROLLI

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 JUNE 2006, AT 10.00 AM

Copyright in the High Court of Australia

MR G. GRIFFITH, QC:   If the Court pleases, MR S.G. O’BRYAN, SC and I appear with MR D.F. GRAY for the applicant.  (instructed by Solicitor for Public Prosecutions)

MR R. RICHTER, QC:   If the Court pleases, I appear with MR C.B. BOYCE for the respondent.  (instructed by Garde-Wilson Lawyers)

HAYNE J:   Yes, Dr Griffith.

MR GRIFFITH:   Your Honours, we submit that this is an issue which is plainly of public and general importance and one where we say; to put it at the lowest, there is a clear argument for appealable error by the judgment of the Court of Appeal which was given on an application for leave rather than after leave granted on an argued matter listed before the court in the ordinary course.

HAYNE J:   Now, the Court of Appeal order records that there was a pending application for restraining order.  What happened in that?

MR GRIFFITH:   Your Honour, in the outcome, when the court ordered that Justice Gillard’s order be continued pending the resolution of that, that matter is still running, your Honour.

HAYNE J:   Why does the hearing and determination of that, when it occurs, not render this application moot?

MR GRIFFITH:   Your Honour, the issue which is sought to be brought before the Court is one of general application importance given that the Court of Appeal went out of its way, your Honour, to prescribe a system for application by notice in all but exceptional circumstances.  Our submission is that that is to deny the plain operation of the expression of parliamentary intention, that the scheme adopted for the Victorian Act was to provide for an application to be made ex parte followed by the provisions under section 19 to section 19E for identification of persons who may have an interest in the property with their capacity to make an application under section 20.

In other words, your Honours, were the reasons of the court confined to the particular circumstances before their Honours, it may well be that your Honour’s observation would be sufficient to deal with the issue on a special leave application. 

HAYNE J:   I understand the force of what you say about the prescription of general rules in this context, but the appeal, if there were to be an appeal to this Court, would be appeal against orders.

MR GRIFFITH:   Yes, your Honour, and those orders are still being maintained.

HAYNE J:   The orders will become moot, will they not, upon the hearing and disposition of the pending application for a restraining order?

MR GRIFFITH:   Your Honour, already five months have expired since the – or six months since the decision of the Court.  It may well be that this Court, your Honour, will ‑ ‑ ‑

HAYNE J:   Why is that so, Dr Griffith?  Why is this pending restraint still pending?  Why has the application not come on?

MR GRIFFITH:   Your Honour, my instructions are that it came on for hearing on 15 December, a second full day on 19 December, adjourned for mention January, third full day on 19 May, it has been adjourned to a date to be fixed and there is an application for the judge, Justice Bongiorno, hearing the matter and no case application, and what we say, your Honours, that the course of this matter indicates the very issue which we decide to agitate before the Court, namely that the procedure under the Act of section 16 applications should, in the ordinary case and save in exceptional circumstances when an order is made under section 17(1), proceed on the basis of being an ex parte application without notice.

This is an example, your Honour, we say of the alternative that happens if one usurps the provisions of section 20 and following that any issue of claims to the property are determined after persons interested are identified under sections 19 to 19E, then make application on the scheme, your Honour, which articulates a basis of establishing a right for exclusion on a reverse onus basis, and the effect of the Court of Appeal’s order is to introduce in every but the exceptional case a situation whereby one has, in effect, litigation inter partes with the onus on the DPP to establish the right rather than the inquiry being limited, as we assert, to the test prescribed by sections 16 to 18.

That is the special leave issue, your Honour, because it is a matter concerning a legislative scheme enacted as a result of international obligations in various forms within the jurisdictions within Australia, but in the case of the Victorian legislation, on the basis that ex parte applications are provided for save in exceptional circumstances and thereafter persons who may have an interest in the property which is the subject matter of the application may identify – be identified and may come to the court.

Your Honours, we say because of the plain consequence of this decision that it lays down a matter of general application for procedure, until that matter is rectified by this Court one has, in effect, a denial that the structure of the legislative scheme enacted by the parliaments to the extent that the application procedure under section 20 and follow for exclusions becomes otiose.

HAYNE J:   Further curiosity in this matter lies in the fact that Justice Gillard made a declaration that an earlier order by another single of the Supreme Court was void and of no effect.

MR GRIFFITH:   Your Honours, that is an issue to which we have turned our attention and there is recent authority in the House of Lords which would indicate that such an order should be regarded, having regard particularly to what this Court has said in Blue Sky, your Honour, as being a matter where one would not say the failure to comply in the old dichotomy of a mandatory provision leads to invalidity, so that that could well be ‑ ‑ ‑

HAYNE J:   But by what right does a single judge pass upon the order of another single judge?  Was this done by consent?

MR GRIFFITH:   No, it was not, your Honour, is my understanding.  It was not, but that is a matter where one could say particularly on the authority of this Court having regard to the issue of putting aside the distinction between mandatory directory and following the House of Lords, Lord Steyn’s enthusiastic picking up of this Court’s decision on that issue, an indication that one could well say that the order is valid.

HAYNE J:   It seems to me it is logically prior to that.  It is not a question of mandatory directory but a question of power.

MR GRIFFITH:   Exactly.  Your Honour, that is the point I was seeking to make, that one should put aside mandatory and directory and the House of Lords entirely agree with the analysis of this Court on that issue.

HAYNE J:   But that course of events before the primary judge may present, may it not, a particular difficulty in this matter?

MR GRIFFITH:   It may, your Honour, but what we say is that that is something that should be agitated on an appeal in this Court to clear up the underlying issue which is, namely, is Part 2 of the Act to be construed on the basis of establishing in the ordinary case that proceedings should be inter partes on notice to such persons as may be identified as possibly having an interest in the property or should the scheme operate, we say, according to its plain terms, namely, in the ordinary case the application is made without notice.  The only requirement is to be satisfied as to the matters set out in section 18 and thereafter under section 19 and following; persons who may have an interest are to be identified.  When identified, they are required to be served under section 20 and they have an opportunity to appeal within the scheme of the Act.

Our submission, shortly, your Honour, is that there is an entire scheme under the Act.  The issues as to requirements as to a fair procedure are dealt with specifically by the scheme of the entire Act.  It is not a case of derogating by necessary attendant from any implication that there should be a fair procedure before property rights are affected, but it is an express provision that meets such aspects of implication as are made that there should be a fair procedure.

Your Honours, if it were not the case that this is expressed by the Court of Appeal as being a matter not restricted to the peculiar circumstances of this case, it could be said, and for the reason your Honour the presiding Judge has made, that this is a matter which may be regarded as of concern on its particular facts, including the issue, with respect, to the setting aside by Justice Gillard of an order made by another judge at the same level of the court.

Your Honours, we say the Court of Appeal went out of its way to express in a judgment given in a summary way an indication of result in an application for leave without an opportunity being given completely to argue the issues, went out of its way in its reasons delivered a week later to lay down a rule of general application which, in practice, your Honour, is applied, and we say the rule laid down is one which is incorrect in law.

We say, too, it has the effect of denying the plain operation of Parliament’s intention in an issue of application of laws of general and important application in the public interest and pursuant to and reflecting international obligations within the margin of appreciation for a scheme which has been exercised by the Parliament of this State in a manner which, until it is corrected by this Court we say, your Honours, it is plain that there is an operation within this State of a scheme with respect to the issue of dealing with restraining orders in a way which does not reflect the plain intention of Parliament as to how it should operate initially without notice and then identifying persons who have a claim to the property who may come forward on a particular statutory scheme to claim an exclusion.

So in that way, your Honours, there is a matter of general importance where the Court should, we say, correct the error, and it should not be put off to some other occasion in whatever, might be a year or two when one might have an issue arise where there is not this peculiar fact situation.  Indeed, we put it the other way, your Honours.  We say that it is particularly appropriate that there should be leave in this case because in the circumstances here we have had competent representation to put the contrary argument which may be maintained at the level of this Court.  So it is a particularly appropriate matter for leave rather than one which should be denied leave for the reason that one might say there are peculiar fact circumstances.

…..and will remain until such time as this Court corrects what we say is plain error, and for that reason, your Honours, we say notwithstanding the issues that your Honour the presiding Judge points out to say there are matters of peculiar fact in this matter, there are matters of reference to whether or not the section 17(1) discretion should be exercised, it remains appropriate for the Court to vindicate the plain expression of intention expressed in Part 2 of the Act with respect to orders in restraint of property in the procedures.

CALLINAN J:   Mr Griffith, one of the problems would be that if we gave special leave, this matter - substantial matter would remain pending probably until February or March next year.

MR GRIFFITH:   Your Honours, it may well remain pending in any event.

CALLINAN J:   And the uncertainty of which you speak would continue during that period.  I understand what your response to that would be, but it would be unfortunate to have the matter of substance pending for so long.

MR GRIFFITH:   Your Honours, on one view, it could be left abiding the order of this Court because six months has elapsed.  There is an effective order which means at least the property will not be dissipated, it is not at risk, so one could deal with that situation by just adjourning it over till this Court determined the matter.

CALLINAN J:   Has the matter already been delayed – and I am not critical in any way of this course - but by reason of the application for special leave.  The application was filed on 14 February, I think.

MR GRIFFITH:   Yes, your Honour, one reason why it was late was because, firstly, the final reasons and the final version came out late.  There was one version on 19 January, and then there were two other versions after that, I am instructed but, your Honours, why it becomes a particular matter for special leave is because of the emerging circumstance that the Court of Appeal’s judgment was accepted in a practical way at the level of the County Court and also the Supreme Court as being prescriptive that notice should be given save in exceptional circumstances with a capacity to apply for interim injunctions, which is a concept not included within Part 2, in exceptional circumstances.  We say that is a complete reversion or conversion of parliamentary’s expression of its intention that the legislation should operate in the other way.

But underneath it, your Honours, plainly this is a practical issue.  Until such time as this plain error is corrected the mechanisms within this State will require, notwithstanding the terms of Part 2, which we say are plain, the giving of notice in every save exceptional cases, and we say that position is something which should be rectified in the public interest as soon as may be and not held off, as it must come to this Court at some time in the future, until one has a pure fact circumstance.

We say the facts here on this issue are plain and pure enough for the Court to construe Part 2 having regard to whatever extrinsic circumstances may be regarded as relevant to have regard to the plain implication that there should be a fair procedure and opportunity to be heard, and we say, your Honours, vindicate what is the express expression of parliamentary intention having turned obviously its mind through the draftsman to this issue.

We predicate, your Honours, that it is a matter of discretion of the Court, but that is what special leave is about.  It is a question, is this a suitable vehicle?  Our submission is, yes, it is a suitable vehicle.  Is this an appropriate matter, firstly, because it might be said what the Court of Appeal said generally is obiter?  Plainly it is, your Honours, because it is working, we say, in a way which does not reflect the statutory mandate until such time as this Court corrects the matter.

It must be corrected at this Court, because it is the Court of Appeal which has determined the matter, we say, erroneously, and we say there is a clear public interest that the high purposes of the Act as reflected in section 1 of the Act, which deal both with the confiscation of assets and proceeds of crime and also the compensation of those who may be affected by criminal conduct - there is more than the State that has an interest in it.  It reflects the high commands of the international obligations which are set out in footnote 3 of our submissions, and we have given your Honours a folder of the relevant part of the four international documents and also the ALRC report summarising the effect.  We say, your Honours, there is a plain case for correction of error.

The matter that Justice Callinan referred to me, too, your Honour, could be dealt with in a practical way to ensure…..in the appeal by holding over the resolution of the matter as it now is before Justice Bongiorno.  The issue, your Honours, is not so much getting it right in these circumstances.  The issue in my application for leave to appeal is to get it right in each and every application, and applications are brought almost every day.

It is a matter, we submit, your Honour, of general importance for correction of error and that the Court will necessarily face up to this issue at some time.  We say the public interest dictates that this case be used as the vehicle to correct the excursus that the Court of Appeal made in its judgment to really reverse the scheme of the Victorian Act to assimilate it to the scheme of, for example, the New South Wales, Western Australian and Northern Territory or ACT laws which – should I go back?  There is a choice for the Parliaments, your Honours, in Australia.  In Queensland, South Australia and Tasmania the choice has been to require applications to be made on notice with the capacity to apply for ex parte orders in the interim – interim orders.

In the case of the Commonwealth Act the choice has been made to make applications on notice but with a provision under section 26(4) of the Commonwealth Act to enable the DPP to require an application to be made ex parte.  With respect to Western Australia, New South Wales, Northern Territory, the ACT and Victoria the choice has been made to make express provision for the application of ex parte orders which, of course, reflects the G8 declaration which we have set out in paragraph 15 on page 59 of the application book.

That choice having been determined by this Parliament, your Honour – the Victorian Parliament – in our submission, it is appropriate for the Court to correct what we say is an insupportable exegesis by the Court of Appeal which, in effect, is to remove the provision’s inoperative effect providing in section 20 and following for persons whose property is affected to apply on reverse onus, to substitute - and the Court of Appeal expressly refer to this as being a consequence - an inter partes proceedings where, in effect, the onus provided in the Act to be on a person applying, with respect, to the property is to be reversed at that preliminary level, so we have in this case an application for no case, for example, being made before Justice Bongiorno is something which is inconsistent with the plain provisions of the Act.

The concept of having a capacity to make an order for an interim application is something which the Court of Appeal introduces without any statutory support from Part 2, and we say, your Honours, once one has followed through the importance as to legislation both by reference to matters of international obligation, the expression of Parliament of the high purposes in section 1 of the Act, the matter which the Court can take notice that all States have chosen to enact schemes in one form or other, not in uniform terms, providing for the seizure and confiscation of assets is something which should be maintained by order of this Court, not something where, if there is an obvious error, it should be adjoined over to a more suitable vehicle.

Now, your Honours, having said that, that is a point which will not improve by reiteration, and I do not intend to reiterate it, your Honour.  We say to get us around the practical difficulties, in our submission, is it is for the Court to correct the general statements of the Court of Appeal which we say, firstly, should not have been made, particularly in a judgment given on merely the application for leave, but having been made, have operative effect which must at some time be corrected by this Court, and we say it is appropriate in all the circumstances, particularly with the representation having been by the opposing contradictor right through, for the Court to grant leave in this stage for the correction.  If the Court pleases.

HAYNE J:   Yes, thank you, Dr Griffith.  Yes, Mr Richter.

MR RICHTER:   If the Court pleases.  With the greatest of respect, we take it that having regard to what has fallen from our learned friend, he does not for a moment suggest that the decision in the actual case was wrong and ‑ ‑ ‑

HAYNE J:   I did not understand that to be his attitude, Mr Richter.  At least, you should not proceed on the assumption that that is not in play.

MR RICHTER:   Then I will not, your Honour.  The fact is in relation to the determination on the present case, there is no error, and none has been pointed to unless there is the general assertion that there is the overall mandating of an ex parte hearing.  What the court said, and said in our respectful submission obviously correctly, is that you need to make a distinction between the ability to seek an ex parte hearing, and the decision whether or not to have one.

Now, the one thing we have not heard from our learned friend is the notion of what it is that might give section 17 some work to do, and that is the section that gives a discretion to order notice to be given.  If my learned friend is right, one cannot see under what circumstances such matters might be given, and therefore one cannot explain why it should be in the Act at all.

The interesting thing, of course, is having regard to what happened in front of Justice Whelan and subsequently in front of Justice Gillard no one was given notice, and it was by good fortune that one was able to discover what was in fact a pretty fundamental sort of error in the mechanics of getting Justice Whelan’s order.

HAYNE J:   Can you cast any light on how it is that a single judge may declare the order of another single judge to be void and of no effect?

MR RICHTER:   It was accepted by the parties that that was to be the case because what happened was once we had discovered that defect, what subsequently happened was that the DPP conceded that it was a fundamental defect, came prepared with another application for Justice Gillard and agreed to the outcome, and the fact that it agreed to the outcome whether it ‑ ‑ ‑

HAYNE J:   The order is not recorded as being by consent ‑ ‑ ‑

MR RICHTER:   It is not by consent.  It was not opposed, if I could put it that way, and the reason why there is not an appeal from the setting aside of Justice Whelan’s order is that it was in fact not opposed, and considered to be a fundamental error.  So that is why there was no appeal.

HAYNE J:   Maybe, but it appears to me, at least at first blush, to proceed upon a fundamental misunderstanding of the way in which powers are allocated between the Court of Appeal and trial judges.

MR RICHTER:   That may have well been, your Honour, the case except that it is not the subject of this application or any appeal that might arise out of it.  It is not the subject of the application for special leave to appeal.  The subject of the application for special leave to appeal seems to be to say that in each case where there is an application for an ex parte order which seriously restrains the proprietary rights of a third party – and we are really concerned with the third party – one would find it hard to imagine that there would be notice or argument in relation to an actual defendant who is charged whose property has been seized.  We are dealing with the exceptional case rather of a third party who is said in an affidavit to have an interest in the property.

Now, in those sorts of situations, one can see why section 17 would be enlivened or might be enlivened, but in this particular circumstance it was enlivened by the fact that the parties had actual notice.  They were there, through good fortune, and indeed were able to assist the court in pointing out a pretty fundamental deficiency in evidence in front of Justice Whelan which was agreed to as having been made.  So it is but one instance of where, for example, if the rights of a third party are affected, a judge may say, “Well, I’m not sure about this material.  I’m not sure whether it is sufficient on the face of it.  I would like to hear from the person in whose name the property is held.” and that would give section 17 some work to do.

HAYNE J:   But all of this debate appears to have proceeded on the assumption that it is sufficient to have regard to the provisions of sections 16 and 17 rather than to have regard amongst others the provisions of section 18 and the provisions concerning exclusion applications.

MR RICHTER:   That was all argued, with respect, in fact, and the provisions of section 18 – the reason why section 18 was important and comes into play is that it lays down reasons as to why an order should be made.

HAYNE J:   No, it obliges a court to make an order, I think, Mr Richter, does it not?

MR RICHTER:   Yes.

HAYNE J:   Section 18(1):

the court must make a restraining order if it is satisfied –

of certain things, and things are then specified with some particularity.

MR RICHTER:   Yes, that is right, but what is specified also is evidence that emerges as a consequence of the giving of notice under section 17 which is the important aspect of it because there may well be a vast difference between a police officer signing an affidavit saying, “I believe A has an interest in making the application”, and the time at which it is returnable on notice when the basis for his belief is demonstrated to be completely erroneous, in which case the court may come to the conclusion that there are no reasonable grounds for making the restraining order.  This is not relating to tainted property.  This application relates to the property of a third party in which it is said that a potential defendant has an interest.

Now, in order to get an ex parte order that needs to be attested to is that there is a belief that the person has an interest – this is under section 16 – and a statement of the grounds upon which that belief is formed and once that is done, if it is an ex parte application, assuming there is nothing screaming on the page of the affidavit which says that belief cannot possibly be right, then the ex parte order is made with attendant consequences which are serious, but hence section 17 which allows for the giving of notice – once notice is given – allows for the tendering of evidence, allows for the examination, cross‑examination such as a judge may permit in his proper running of the application, and then we get to the ultimate question which is under section 18, whether having regard to the material in the affidavits and to any other sworn evidence before it, there are reasonable grounds for making the restraining order which is a far broader inquiry than merely having a look at someone saying, “I believe X has an interest, and these are my reasons for believing it”.

So it is precisely because there is an interference with a third party ostensibly as the owner of the property that section 17 exists.  My learned friend’s argument seems to be based on the notion of some national scheme.  There is no national scheme in the sense in which we know national schemes exist.  The legislation comes in at different phases, different dates and is differently expressed, but what there is is a general policy.

If we go to the general policy, and my learned friend cites in particular the G8 Best Practice Principles, with which we wholeheartedly, in our submission, agree of course, if one looks at it one sees that the Court of Appeal in this instance has acted with complete propriety because what the G8 Best Practice Principles relate to is the minimising of the opportunity for persons claiming an interest to dissipate it.

Paragraph 13 of that declaration “States should” and I underline a passage here which appears to be foremost in the mind of the Court of Appeal when determining this appeal as well as when proposing future rules.  It did not lay down future rules.  In fact the language that is used is that they said that it seemed to them the sensible way of doing it was in a particular way, in other words, to look after it, and that is the subject, for example, if the Navarolli matter is concluded in front of Justice Bongiorno they can appeal that if they want to – not if, but when.

If another application is made ex parte tomorrow, and a judge says, “No, I am bound by what I consider to be a practice direction, and I require you to give notice”, that decision can be brought up immediately.  So it would take less time, as it were, to get that resolved in the appropriate vehicle.

CALLINAN J:   Mr Richter, there is nothing unusual about this, really.  You can get interim Mareva injunctions, interim Mareva orders?

MR RICHTER:   Yes.

CALLINAN J:   There is nothing unusual about the legislation – the result that the legislation produces?

MR RICHTER:   There is nothing unusual providing the objects are met.

CALLINAN J:   In cases of urgency in the civil law you can get interim injunctions without notice, and this is to the same effect?

MR RICHTER:   But this was not a case of urgency, you see, with respect.

CALLINAN J:   I can see that these sorts of cases you often will not know how much urgency is involved until after you have made the order.

MR RICHTER:   Hence the Court of Appeal’s decision to do the right thing, taking into account both natural justice and other considerations.

HAYNE J:   It treats the restraining order as though it were being found a determination of the rights between the parties, whereas I would have thought that the exclusion order was the determination of rights, is it not?

MR RICHTER:   It is an ultimate determination of rights, yes, but what the restraining order is is an immediate impost on the rights of proprietorship.

HAYNE J:   Yes, just so.

MR RICHTER:   And a serious one.

HAYNE J:   Yes.

MR RICHTER:   But one that can only be undertaken – if my learned friend was right in terms of the general policy that he has adumbrated which says:

States should, consistent with the protection of individual rights, adopt procedures aimed at minimizing the opportunity for persons claiming an interest in property to hide or dispose of it prior to it being frozen or seized.

There is no opportunity to hide or dissipate if the general process the Court of Appeal proposes is applied, and certainly in the case of Navarolli there was no such prospect.  Since that is the end all and be all of the need for the urgent restraint of property, once that is not there ‑ ‑ ‑

HAYNE J:   That seems to be an argument, Mr Richter, that the litigation is futile as Mr Navarolli does not intend to dispose of the property pending the determination of the exclusion order.  Is that the position?

MR RICHTER:   No, he cannot dispose of it.  He is bound by both.

HAYNE J:   Yes, I understand that, but your contention seemed to be that Mr Navarolli having no intention to deal with it, pending disposition of the exclusion application, the present restraining application is futile and unnecessary.  Is that right?

MR RICHTER:   No, he has no intention to deal with it because he is restrained.  When restrained, he has no intention to deal with it and gives undertakings he will do nothing of the kind, but even not relying on undertakings the court has the ability to guarantee that the property is not dissipated.

HAYNE J:   Does it not lead to this position that if the application is to be made on notice, the court making the order either to give notice or on return of the notice must decide whether at once to freeze the property pending disposition of the restraining order?

MR RICHTER:   It can make an interim restraining order directing the restraint of the property ‑ ‑ ‑

HAYNE J:   And thus we have the provocation of considerable litigation to little end, litigation which is better disposed of at the determination of the exclusion order when rights are finally determined?

MR RICHTER:   Not at all, your Honour, with the greatest respect, because it is in the exceptional case that notice will be required.  One hazards a thought as to what exceptional case my learned friend might have in contemplation for notice to be given, but it is in the exceptional case.  A judge would not ordinarily require it unless it was a case in which third parties who are not the alleged criminals are said to have property in which the alleged criminal has an interest.

It is in those sorts of cases where the principles of the protection of individual rights arise and lest your Honour think that this is of no great consequence it is of considerable consequence because once the order is made the burden of proving entitlement to property is on the person who would then have to seek an exclusion order, and as appears in the Western Australian decision that has been referred to and is in the list of authorities, that is not the determinant the fact that someone may apply for exclusion.  Different matters operate and a burden of proof and sometimes an onerous burden of proof is imposed on a person who, prima facie, owns the property and should not be facing a burden, unless there are reasonable grounds for freezing his property.

CALLINAN J:   A bona fide owner should be able easily to discharge that onus.

MR RICHTER:   May or may not.  Some bona fide owners get money from horses, some bona fide owners get money from all sorts of areas where, if they are cross‑examined about their general credibility, a judge may say, “Well, you say so, but I am not sure that I believe you”.

CALLINAN J:   So your best example is somebody who has had a windfall on the race track?

MR RICHTER:   No, that is not the best example.  There are other examples.  A lot of people do not keep records of how money went into a bank, where it came from and the like.  It imposes an onerous obligation, and that is the discharge of a burden of proof, in a situation where the simplest of explanations to be proffered at the early stage on notice from which the Act provides which says there is really no case in this.  Your beliefs are unfounded.  They appear reasonable because you assert them, but in reality they are not reasonable.

So what we say is this.  The floodgate argument does not apply notwithstanding the suggested procedures by the Court of Appeal and if those suggested procedures by the Court of Appeal were in any way adopted in a particular case where they should not be, for example, something not involving third party rights, then the situation should arise that in such circumstances a judge’s decision to order notice to be given is appealable and brings the point to the crunch properly.

This is not an appropriate vehicle because, of all the exceptional cases one can think of that might invoke the requirements of section 17, this is it.  There was no danger of dissipation of property.  The person knows about the restraint and accedes to it in order to facilitate the process, and what we say is this, why should Mr Navarolli be the vehicle of protracted litigation in front of the Full High Court when the decision in his instance is plainly right and is not attended with sufficient doubt, because the reasonable considerations that the court applied in his instance were absolutely correct, and no error can be demonstrated as to the way in which his matter was dealt with and the order made.

The complaint is against what are obiter observations which are proposed, as it were, not even in compulsory language, where the court starts off by saying, “Well, it occurs to us that it might be possible by the following events to vindicate the right to be heard in every case”.  Now, every case ‑ ‑ ‑

CALLINAN J:   But Mr Griffiths said that although it is obiter, it is in fact being applied universally in Victoria?

MR RICHTER:   If it is being applied then Mr Griffiths’ client ought to take the first one where it has been applied and appeal it to the Court of Appeal and say it should not and that would be the appropriate vehicle.

CALLINAN J:   You started all of this off, did not you, by making the oral application from the back of the court.  Is that what happened?

MR RICHTER:   Yes, I started all of it because I was in court and was fortunate enough to see that if section 17 had had any application to third

parties then the order of Justice Whelan would not have been made in the first place because he would have realised that he did not have the material to make it, and I also knew and had instructions as to the fact that the affidavit - when finally disgorged after a good deal of battle - was attackable on such a basis that we believed we would be able to persuade a court that there were no reasonable grounds for the making of the order.  So I started it because Mr Navarolli had $200,000‑odd frozen which he wanted to use and he wanted to use it by repaying a debt and he had written a cheque, in fact, that was recalled and frozen.  He wanted to use it, and now he cannot use it for all this period of time.

Justice Bongiorno is at the moment reserved on the issue of whether or not there is evidence at all to support a reasonable grant for the making of the order and he will deliver his judgment a good deal faster, in my respectful submission, than will happen if this Court were to grant special leave, and that will determine the Navarolli matter.

This Court has the ability, in making pronouncements in relation to a refusal of special leave by reflecting any difficulties it may have with the general observations of the Court of Appeal and they would no doubt precipitate further action by our learned friends in the appropriate case.  This is simply not the right vehicle, in my respectful submission, and it would be wrong to subject Mr Navarolli to that kind of additional delay and expense.  If the Court pleases.

HAYNE J:   Yes, thank you, Mr Richter.  Yes, Dr Griffith.

MR GRIFFITH:   Your Honour, we say that the decision of the Court of Appeal was almost plainly wrong.  It renders otiose both section 17 and also the provisions of sections 20 and 21 on the scheme where interested persons are identified through section 19 and then may make application for exclusion orders on a particular statutory basis involving reverse onus.

The Court of Appeal admitted in paragraph 43 of its judgment, page 33 that its approach requiring notice in all but exceptional cases would mean that the onus position will be reversed and remained on the Director.  The Court of Appeal’s approach did nothing to answer the question, how do you identify interested persons in the property at that preliminary level when the statutory scheme plainly indicates as part of the entire structure of Part 2 of the Act it should be identified after the making of that order.

CALLINAN J:   And the Director does not have the benefit that you would have in civil litigation of discovery and interrogatories?

MR GRIFFITH:   No, your Honour, and who knows, even with legal title, who owns property.  That is why we have the elaborate provisions of cascading notices being given to persons who then must give notices back if there are other persons who then must be given notice.  There is a clear statutory address for that.

Now, your Honours, we say plainly there is a strong argument for error here.  Plainly there is a matter of general public importance because until this error is corrected, and it can only be corrected at this Court - it would be a waste of time to spend six months appearing through the Court of Appeal, and one would merely submit to a formal order on the basis of the two member Court of Appeal decision in this matter - it is a matter which must come to this Court.  We say it is plainly of public importance and we say it is appropriate for the Court to enable this error to be corrected in a matter of public importance in this matter as a suitable vehicle.

We appreciate the arguments on the particular facts, your Honours.  There are difficulties about how Justice Gillard treated the order of Justice Whelan.  Your Honour ‑ ‑ ‑

HAYNE J:   Is there not a particular difficulty presented by the fact that Justice Gillard refused to hear counsel for the person affected who was then present instructed to be heard in opposition?

MR GRIFFITH:   Your Honours, we say that was a matter of exercise of a discretion after argument went for a day or two, after full consideration and once more one can say there may well be error in the Court of Appeal in substituting its own exercise of that discretion after a reasoned exercise by his Honour Justice Gillard which we say the reasons are sustained on the basis that the structure of that section 16 application, your Honour, is one which merely requires the satisfaction of the matters listed in section 18, not a trial, inter partes, on the merits with the onus back on the DPP within the statutory scheme.

Your Honours, the crucial issue for your Honours on the issue of a grant is to whether or not for practical reasons to accept that this is a suitable vehicle for rectification, we say, of a palpable error as a matter of public importance where the matter will cause considerable disjointing of the proper application of the legislative scheme adopted by this State within its margin of appreciation, having regard to the obligation of legislation of this sort and adoption of the purposes of the Act, and we say, your Honours, it is coming this Court’s way.  It is plainly in the public interest, having regard to international obligations, to reinforce that, that this error should be corrected.

Whether at the end of the day, your Honours, there is much in the way of an effective order on the particular facts, we say is a matter which can be resolved by the Court and dealt with…..issues of cost orders.  It is

the issue of general principle that is sought to be raised and we say, your Honours, it is coming this Court’s way.  It should be rectified in this matter, rather than some indefinite time in the future.  If the Court pleases.

HAYNE J:   The Court will adjourn for a short time to consider the course it will take.

AT 10.43 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.47 AM:

HAYNE J:   The Director of Public Prosecutions seeks special leave to appeal to challenge orders of the Court of Appeal of Victoria setting aside a restraining order made by a single judge of the Supreme Court (Justice Gillard) under the Confiscation Act 1997 (Vic).

In the course of giving its reasons, the Court of Appeal made statements that have since been understood as requiring a particular understanding of the express power given by section 16(1) of the Confiscation Act, the Director to apply for a confiscation order without notice.  Whether and in what circumstances it would be appropriate for a court to act under section 17 of the Act and to require an applicant for an order under section 16 to give notice of the application to another person cannot be decided without first having regard to the obligation cast on the court by section 18 to make an order if satisfied of certain matters and, secondly, without particular regard to the facts and circumstances of the individual case.  In all cases, effect must be given to the provisions of the Act.  Without glossing the Act impermissibly it is not useful to attempt to state rules about the operation of the relevant provisions in universal terms. 

Since the Court of Appeal made the orders which the Director would seek to challenge, a further application for a restraining order, relating to the property the subject of the order made by Justice Gillard, has been part heard but has not yet been determined.  When that further application is determined, any dispute about the correctness of the orders made by the Court of Appeal will become academic.  There will be no occasion to consider in this Court the basis upon which Justice Gillard acted in declaring that an earlier restraining order made by another single judge of the Supreme Court was void and of no effect.

In the circumstances, special leave to appeal is refused and refused with costs.

The Court will adjourn to reconstitute.

AT 10.49 AM THE MATTER WAS CONCLUDED