Director of Public Prosecutions (WA) v Mansfield - [2006] WASC 255

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- MANSFIELD & ORS [2006] WASC 255

CORAM: BLAXELL J

HEARD: 14 AUGUST 2006

DELIVERED : 13 NOVEMBER 2006

FILE NO/S: CIV 1977 of 2002

BETWEEN: THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
NIGEL CUNNINGHAM MANSFIELD
Respondent
NIGEL CUNNINGHAM MANSFIELD
ROSALIND JANE MANSFIELD
First Objectors
THE STATE OF WESTERN AUSTRALIA
Respondent to the Objector

Catchwords:

Criminal law - Confiscation of property - Freezing order - Whether undertaking as to damages to be required from DPP

Criminal law - Confiscation of property - Application for variation to freezing order to make provision for legal expenses - Factors to be taken into account

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 43

Result:

DPP required to provide undertaking as to damages as a condition of continuation of freezing order

Freezing order varied to allow for objector's legal expenses

Respondent's application for variation adjourned

Category: B

Representation:

Counsel:

Applicant: Mr N M McKerracher QC & Mr T A Staples
Respondent: Mr M L Bennett
First-named First Objector : Mr M L Bennett
Second-named First Objector : Mr C E Chenu
Respondent to the Objector : Mr N M McKerracher QC & Mr T A Staples

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Lavan Legal
First-named First Objector : Lavan Legal
Second-named First Objector : Durack & Zilko
Respondent to the Objector : State Director of Public Prosecutions

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

Australian Federal Police v Malkoun (1989) 58 A Crim R 366
Australian Securities and Investments Commission v ACN 102 556 098 Pty Ltd (2003) 48 ACSR 350
Director of Public Prosecutions (Cth) v Gillis (1993) 9 WAR 331
Director of Public Prosecutions for Western Australia v Mansfield [2003] WASC 186
Director of Public Prosecutions for Western Australia v Mansfield [2004] WASC 255; (2004) 150 A Crim R 348
Hoffmann‑La Roche v Trade Secretary [1975] AC 295
In Re Peters [1988] QB 871
Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38
NSW Crime Commission v Fleming and Heal (1991) 24 NSWLR 116

Case(s) also cited:

"B" & Ors v The State of Western Australia [2002] WASC 298
Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1979) 53 ALJR 766
Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249
Australian Securities and Investments Commission v Mauer-Swisse Securities Ltd (2002) 42 ACSR 605
Australian Securities and Investments Commission v Triton Underwriting Insurance Agency Pty Ltd (2003) 48 ACSR 249
Cameron v Cole (1944) 68 CLR 571
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Director of Public Prosecutions for Western Australia v Gypsy Jokers Motorcycle Club Inc (2005) 153 A Crim R 8
Director of Public Prosecutions for Western Australia v Mansfield [2003] WASC 173
Director of Public Prosecutions v Scarlett [2000] 1 WLR 515
ICI Australia Operations Pty Ltd v TPC (1992) 38 FCR 248
Langman v Handover (1929) 43 CLR 334
National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271
Re The Criminal Property Confiscation Act 2000; ex parte State Director of Public Prosecutions [2002] WASC 117
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1980) 148 CLR 150
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591
World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181

BLAXELL J: These are my reasons for decision on applications by the respondent ("Mr Mansfield") and the second‑named first objector ("Mrs Mansfield") for variations to a freezing order obtained by the applicant ("the DPP") on 12 July 2002. That order was made pursuant to s 41 of the Criminal Property Confiscation Act 2000 (WA) ("the Act") and it froze all of Mr Mansfield's property as well as property of his wife which was allegedly under his "effective control".
By chamber summons dated 16 September 2004 Mr Mansfield applied (inter alia) for an order that the DPP provide an undertaking as to damages as a condition for the continuation of the freezing order. Mr Mansfield later applied for leave to amend the chamber summons to seek a variation of the freezing order enabling payment of legal expenses incurred in defending related criminal and civil proceedings. In a decision delivered on 30 November 2004, both of those applications were refused (Director of Public Prosecutions for Western Australia v Mansfield (2004) 150 A Crim R 348).
That decision was then appealed, but a majority of the Court of Appeal (Pullin JA dissenting) refused leave to appeal in respect of the two matters referred to above. However, a subsequent appeal to the High Court was upheld (Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38, 20 July 2006) and the relevant orders were set aside. The High Court also ordered that pars 2, 3 and 4 of Mr Mansfield's chamber summons dated 16 September 2004 and his application for leave to amend (in respect of legal expenses) be referred to a single Judge for determination.
The application accordingly came on for rehearing before myself, and on 14 August 2006 I granted Mr Mansfield leave to amend the summons in the manner previously applied for. At the same time I heard an application by Mrs Mansfield (by chamber summons dated 10 December 2004) for a similar variation of the freezing order to enable payment of her legal expenses in the present proceedings.
At the hearing on 14 August 2006, Mrs Mansfield also applied for leave to amend her chamber summons to seek an undertaking as to damages from the DPP in similar terms to that sought by Mr Mansfield. However, that application was not pressed when I indicated my tentative view that any undertaking ordered on Mr Mansfield's application would almost certainly encompass damages that might ultimately be claimed by Mrs Mansfield. In the end, the issues that I am required to determine are as follows:
(1)Whether the DPP should be required to provide an undertaking as to damages (in respect of both Mr and Mrs Mansfield) as a condition for the continuation of the freezing order until final disposition of the proceedings.
(2)Whether the freezing order should be varied to enable payment of Mr Mansfield's past and future legal expenses incurred in respect of the freezing order, in defending the DPP's application for a criminal benefits declaration, and in related criminal proceedings.
(3)Whether the freezing order should be similarly amended to allow provision for Mrs Mansfield's legal expenses in respect of the proceedings on her objection to the freezing order.

Whether the DPP should be required to provide an undertaking

The reasons for decision of the High Court upholding the appeal in the present matter (at [12] ‑ [19]) have fully outlined the relevant provisions in the Act and there is no need for me to repeat what was then said. At [46] it was noted that the statutory regime is sui generis and confers jurisdiction on the Supreme Court to make freezing orders for the purpose of protecting the prospective or contingent property rights of the State. Although the present litigation has not invoked this Court's general jurisdiction to grant injunctive relief:
" ... within the authority conferred by s 43 of the Act, the Supreme Court had the power (albeit not the duty) to require the provision of an undertaking and, if this was not offered or was offered in unsatisfactory terms, the Supreme Court was at liberty to refuse the freezing order sought by the DPP."
The High Court has not provided any guidelines as to the factors to be considered when exercising the discretion to order such an undertaking. However at [28] it refers to "the considerations of justice and fairness which ordinarily attend the administration of a new remedy", and at [10] to the power "to require the provision of undertakings so as to diminish the possibility of oppression and injustice".
These are very fundamental considerations which need to be looked at in light of the statutory framework of the Act, and the impact that a freezing order is likely to have on a respondent or other affected party. Quite obviously there is a valid public interest in preserving the assets of an alleged criminal pending proceedings for their confiscation. On the other hand a freezing order has the potential to inflict considerable injustice if it turns out that there was no real basis for those proceedings in the first place. Depending on the particular circumstances in each case an undertaking as to damages offers some prospect of reconciling these competing concerns.
There are some aspects of the statutory scheme which are particularly significant for present purposes. An application can be made ex parte (s 41) and the Act requires that only a low threshold be met before the court can make a freezing order (s 43). Furthermore the Act does not require the court to assess the strength of the DPP's case prior to exercising its discretion to grant an application. In the present instance the freezing order was made on two grounds, namely that:
"A.An application for an examination has been made in relation to the property;
B.An application ... for criminal benefits declaration is likely to be made within 21 days ... "
The freezing order could have been made on either one of these grounds, and it is interesting to note that even though an examination order was made on 12 July 2002, no further steps were taken to enforce the same. Accordingly, it was only the application for a criminal benefits declaration which (in hindsight) has provided any real justification for the freezing order. However, notwithstanding the lapse of more than four years since then, that application is still to progress beyond the pleading stage and is nowhere near resolved.
In the meantime, and by any reasonably objective standard, the freezing order has had very dire consequences for both Mr and Mrs Mansfield. The whole of Mr Mansfield's property, and all of Mrs Mansfield's major assets have been frozen since 12 July 2002, and pursuant to s 50 cannot be dealt with in any way. Consequently, Mr and Mrs Mansfield have been unable to meet mortgage payments that have fallen due on their jointly owed real estate, and they are also liable for interest which is continuing to accrue at default rates on the very substantial arrears. Because the freezing order has prevented Mr Mansfield from meeting other debts that he had incurred, he is subject to an ongoing petition for his bankruptcy (which itself cannot be resolved because of the freezing of his assets).
These are the more obvious detrimental consequences of the freezing order, and there may be others that are more difficult to identify, such as an inability of the Mansfields to accumulate further assets during the period of a booming economy. It is also fair to assume that the present situation will continue for some considerable time given the very slow progress of the related criminal and civil proceedings.
It follows that in the event that the DPP is ultimately unsuccessful in obtaining a criminal benefits declaration, Mr and Mrs Mansfield will each have sustained very significant damage. Such damage would probably include the loss of their real properties which upon any lifting of the freezing order will become immediately liable to forfeiture by the mortgagees.
In all of these circumstances, the factors which favour the court requiring an undertaking as to damages (as a condition for continuation of the freezing order) are patently obvious. However, there are countervailing factors to be taken into account, and these concern the public policy considerations which surround the DPP's role in obtaining the freezing order. The DPP has a public duty to perform its statutory functions, and it should not be inhibited from doing so out of fear of incurring liability for damages. As was stated by Lord Cross in Hoffmann‑La Roche v Trade Secretary [1975] AC 295, 371 (in the context of proceedings for enforcement of provisions under monopolies legislation):
" ... if the Crown is taking proceedings under a statutory provision ... the court in considering whether or not to make the grant of an interim injunction conditional of the giving of an undertaking in damages has to bear in mind the interest which the public - and in particular any section of it which will benefit directly thereby - has in seeing that the law in question is enforced.
To make the granting of an interim injunction conditional on the giving of an undertaking in damages may deter the Crown from asking for one."
Similarly, in Australian Securities and Investments Commission v ACN 102 556 098 Pty Ltd (2003) 48 ACSR 350 Barrett J of the Supreme Court of New South Wales held (at 352) that ASIC was not required to give an undertaking as to damages when obtaining an ex parte order for appointment of a provisional liquidator to the defendant company. This was because ASIC was not vindicating some private right but was discharging a public duty:
"When ASIC asserts the standing it is given ... it does not act as a representative of any private interest and does not seek to enforce, directly or indirectly, the right of any creditor. It acts in aid of the community's interest in ensuring that limited liability companies do not remain operative when the capacity to pay their debts in full has been compromised.
In these circumstances, I was satisfied that, in making application for the appointment of a provisional liquidator in this case, ASIC was performing a public function. That function was of such a kind that ASIC's failure to proffer an undertaking as to damages was not something that should have worked to its disadvantage upon the determination of the application."
Self‑evidently, the DPP performs a similar public function when applying for and obtaining a freezing order under the Act. This is so notwithstanding that the purpose of a freezing order is to protect the prospective or contingent property rights of the State. Accordingly, the public duty and statutory role of the DPP are factors which should ordinarily be afforded significant weight when the court is determining whether or not to require an undertaking as a condition of making or continuing a freezing order.
It may well be that the strength of the DPP's case in the civil proceedings that Mr Mansfield has committed "confiscation offences" (within the meaning of s 141) is also a factor that should be taken into account. However, in the present case this is not an issue that has been focused on by counsel, and in any event the materials before me do not readily enable such an assessment.
In the end, with the advantage of hindsight and in the particular circumstances of the present case, I consider that the factors which favour the requirement of an undertaking are fairly overwhelming. In my view, the public policy considerations cannot be given great weight in circumstances where there has been a prolonged delay in prosecution of the confiscation proceedings notwithstanding the obvious and escalating detriment to Mr and Mrs Mansfield. It may well be that this delay, in turn, can be largely attributed to tardiness by another authority in pursuing the criminal prosecution of Mr Mansfield; but as between the present parties, it is the DPP that must bear responsibility. Certainly, it is difficult to lay that responsibility at the Mansfields' door, in light of their unsuccessful attempt to have the civil proceedings set aside for want of prosecution (Director of Public Prosecutions for Western Australia v Mansfield [2003] WASC 186).
Accordingly, I propose to require that the DPP provide an undertaking as to damages as a condition for the continuation of the freezing order until final disposition of the application for a criminal benefits declaration. I will hear further submissions from all of the parties as to the appropriate terms of that undertaking.

General considerations as to costs

In its reasons for decision in the present matter, the High Court (at [50]) has effectively found that the Supreme Court has power:
" ... when making or varying a freezing order to mould its relief to permit the use of funds to obtain legal assistance. Such assistance is for the benefit not only of the individual but for the more effective exercise of the jurisdiction conferred by s 101 of the Act with respect to proceedings under the Act. In that sense, it is also for the benefit of the State and the public."
The High Court also adopted the following passage from the dissenting judgment of Pullin JA in the Court of Appeal:
" ... the Court in the exercise of its discretion may also refuse to make a freezing order over some property. The Court could therefore make a freezing order with respect to certain property, and refuse to make one in relation to sufficient property to allow legal expenses to be paid. In other words the freezing order would not cover property to be used to pay legal expenses. If some property is exempted from the freezing order, then s 45 would not apply to it. In exempting some of the property from the freezing order, the Court could provide that it be exempt on condition that it be spent in a particular way, ie, for legal expenses, and that there should be some machinery for ensuring that the money is spent only for that purpose."
The Act, of course, is silent as to the criteria to be applied when the court is deciding whether or not to mould its relief to allow funding for legal expenses. However, courts have often had to grapple with substantially the same issue in the context of similar confiscatory legislation or when granting Mareva injunctions. An example is In Re Peters [1988] QB 871 where there was an application to the court to vary a "restraint order" over the property of an alleged drug trafficker to allow for certain expenses. Nourse LJ (at 880) held that:
" ... the jurisdiction to make or vary restraint orders is closely analogous to the jurisdiction to make or vary Mareva injunctions. In both cases the object is to strike a balance at an interlocutory stage between keeping assets available to satisfy a final order, if and when one is made, and meeting the reasonable requirements of their owner in the meantime."
In Australian Federal Police v Malkoun (1989) 58 A Crim R 366, Ryan J of the Federal Court was asked to exercise a similar discretion to allow funding of legal expenses out of assets the subject of an interlocutory restraint. At 386, his Honour held that:
" ... the task of the Court in exercising the discretion ... is to strike a balance between the interest of the defendant in having recourse to his assets to enable his defence in the criminal trial to be prepared and conducted as he thinks appropriate, and the interest of the community in preserving those assets intact to satisfy any pecuniary penalty that the defendant might ultimately be ordered to pay ... "
In "striking a balance" in such cases, the court must obviously consider the likely quantum of costs to be expended on legal representation if this is to be allowed. This issue arose in NSW Crime Commission v Fleming and Heal (1991) 24 NSWLR 116 where the relevant legislation provided the court with a discretion to permit expenditure on "reasonable legal expenses" when making a "restraining order" over the property of an alleged drug trafficker. The question was whether an agreement between the defendant and his solicitor as to the quantum of fees to be charged established what was reasonable. At 124, Gleeson CJ (with whom Hope A‑JA agreed) held:
"An agreement between the solicitor and client as to the costs which the solicitor will be entitled to charge will be relevant if there is a dispute as to the reasonableness of the legal expenses in question, but it will not be conclusive. The court will be required to consider what is reasonable, not only from the point of view of the client, but also having regard to the public interest, bearing in mind the possibility that an order for confiscation or forfeiture may be made.
...
A primary factor affecting the reasonableness of the legal expenses for which provision is sought will be the market for legal services in which the client, as a consumer, is obliged to seek such services. Underlying the policy of [the legislation] is a recognition that justice requires that persons accused of criminal offences, or confronted with a threat of forfeiture of their property, should not be unfairly deprived of the means of defending themselves, and it would be inconsistent with that recognition to adopt an approach to the question of reasonableness of legal expenses which had the practical consequence of depriving persons of the opportunity of obtaining proper legal representation."

A similar question was considered by Scott J in Director of Public Prosecutions (Cth) v Gillis (1993) 9 WAR 331 where the respondent sought the release of funds the subject of a restraining order under the Proceeds of Crime Act 1987 (Cth) in order to engage senior counsel in related criminal proceedings. As to the question whether it was reasonable in all of the circumstances to engage senior counsel, Scott J stated (at 335 ‑ 336):
"In this respect there appear to be two competing factors. The counsel of choice policy is designed to enable an accused person to be represented by counsel of his choice. On the other hand the Proceeds of Crime Act requires me to assess what in all the circumstances are reasonable expenses. Where those two principles come into conflict, there is, in my view, a need for the exercise of some discretion by a judge making the appropriate order ... .
It is clear when one reads the authorities that wherever possible this Court should now see that appropriate funding is available for a person such as the respondent to be properly represented at trial (see Dietrich v The Queen (1992) 177 CLR 292) and that where necessary, the interests of the accused person should prevail against those of the revenue ... "
His Honour noted (at 336) that a relevant factor to be taken into account was the availability or otherwise of legal aid. His Honour further stated (at 338):
"If this Court does not limit legal expenses to what is seen to be reasonable ... then the person seeking legal representation would obtain the most expensive lawyers in the realisation that the assets which are the subject of restraint might as well be used for the purpose of providing a legal defence in order to avoid forfeiture to the Crown. The statute, in my view, is designed to prevent that course and to give the court some control over the way in which restrained assets are used for the purpose of providing a legal defence."
The importance of this last consideration has been emphasised by the High Court in its decision in the present case:
" ... It calls for great care by the parties and the Court in the framing of the condition to ensure, to the maximum practical extent, that exempted funds are not misused, whether by overservicing and overcharging or by other abuse." (At [54])

Factual matters relevant to costs in the present case

The applications before me seek variations to the freezing order to enable payment of all legal fees and costs reasonably incurred by Mr Mansfield in defending the criminal prosecutions brought against him, and by each of Mr and Mrs Mansfield in respect of all civil proceedings under the Act. The latter proceedings include applications for variations to the freezing order, objections to the freezing order, and the application for a criminal benefits declaration.
The criminal proceedings against Mr Mansfield have had a convoluted history, and he is currently subject to three separate District Court indictments, one of which involves a co‑accused. The proceedings have reached a status conference in the District Court, but the status conference has been adjourned three times pending the outcome of the High Court appeal. The estimates as to likely trial lengths are fairly formidable, and I understand that the prosecution and defence agree that the first two trials will take approximately ten weeks and six weeks respectively. Their respective estimates for the third trial are two weeks and one week. Mr Mansfield wishes to engage senior counsel from Melbourne for all three trials and he estimates that the costs of legal representation, expert witnesses, travel and accommodation will total $1,080,858.
Mr Mansfield has applied to the Legal Aid Commission for legal aid, but these applications were "pended" until the outcome of the High Court appeal was known. It can be assumed that the Commission will also wish to know the outcome of Mr Mansfield's present application for variation of the freezing order before deciding whether or not to grant legal aid. However, the Commission has advised that in the event that no provision is made for legal expenses from frozen property, then that property will not be taken into account when determining if Mr Mansfield qualifies financially for legal aid.
The Legal Aid Commission has also estimated the costs that it will incur if legal aid is granted for the criminal proceedings. Senior counsel can only be approved by the Director in exceptional cases that involve complex matters of fact or law, and in the present instance it is likely that the Commission would approve senior counsel as well as an instructing solicitor to act as junior. However the Commission does not approve of the briefing of counsel from other States and a grant would not include the costs of counsel's travel and accommodation. Furthermore, senior counsel fees are limited to 150 per cent of the Commission's scale rates. On this basis, (and at a time when it was estimated that the first trial would be listed for 16 weeks) the total costs to the Commission of granting legal aid for the criminal proceedings were estimated to be $333,980.
Mr Mansfield has been legally represented over the whole of the period since the freezing order, and for much of that time he has engaged separate solicitors for the criminal and civil proceedings. It is fair to describe the quality of that representation as being very high, and (at least in the civil proceedings) as being relatively intense in nature. In that regard, the Supreme Court file currently comprises nine volumes and stands more than 80 cm tall. The DPP has understandably questioned the manner in which that representation has been funded, and the response from Mr Mansfield's counsel is as follows:
"BENNETT, MR: It's entirely irrelevant. ... Mr Mansfield enjoys one of the few assets that he has that's not frozen, his entitlement to legal professional privilege. He's not obliged to disclose the relationship that he has with his solicitors. He is not obliged to waive privilege to satisfy the curiosity of the director as to the nature of that arrangement.
What you do have is you have a circumstance where all of his assets present and in the future are frozen and can't be applied. So the reasonable state of the evidence is that Mr Mansfield isn't paying his legal fees and that's the objective fact. Now, how does he manage to get lawyers to act for him in those circumstances is entirely a matter that's his private affair and he's not obliged to disclose it, but it's plain as a pikestaff that he would prefer to be able to pay for his own lawyers rather than rely on others to do so and that's why he brings the application. Beyond that I think he's not obliged to answer it and it is irrelevant as a consideration." (T 968)
Mr Mansfield is not, of course, under any obligation to waive the confidentiality of his relationship with his solicitors, or to disclose the arrangements under which he has been receiving representation. Nevertheless, in the context of his present application, the fact that he is able to obtain such representation is a significant matter which cannot be ignored. The only reasonable conclusion in all of the circumstances is that Mr Mansfield's legal representation is not being provided pro bono but is being funded from some source other than himself.
Mrs Mansfield, on the other hand, has chosen to disclose the arrangements she has made for her legal representation to date. She engaged her own solicitors on 14 October 2004, and since then has been continuously represented by the same firm. Her solicitors have been paid $22,215.28 to date, of which $9500 was borrowed and must be paid back. The DPP has paid a further $10,841.45 to her solicitors as a result of indemnity costs orders. As at 11 August 2006, the legal costs outstanding were $37,267.59 together with the borrowed sum of $9500, making a total liability of $46,767.59. (These costs do include a component in respect of Mrs Mansfield's Family Court proceedings.)
Neither Mr Mansfield nor Mrs Mansfield have provided any estimates of the likely future costs of legal representation in the present civil proceedings. However, in Mrs Mansfield's instance, it is unlikely that any significant future costs will be incurred prior to determination of the application for a criminal benefits declaration against Mr Mansfield. It is only then that the DPP might be in the position to pursue confiscation of Mrs Mansfield's frozen property by way of an application for a confiscable property declaration under s 28. Furthermore, from Mrs Mansfield's point of view, there is no point in pursuing her objection proceedings prior to then, because any property that might be released from the freezing order would be immediately seized by her creditors.
If the present applications for variation of the freezing order are granted, then the funds available to meet legal costs will be very limited. There are four separate bank accounts that are subject to the freezing order, and as at 24 August 2006 those accounts held funds totalling $289,867.05. Although these funds are earning interest, they are also being depleted at the rate of $3600 per fortnight pursuant to the allowance under the freezing order for Mr and Mrs Mansfield's reasonable living and business expenses. The only other major frozen assets are two jointly owned apartments either of which could theoretically be sold pursuant to an order under s 91. However the mortgagee would have first claim on the proceeds, and no party has suggested that this might be a viable option.
To the extent that it is necessary, Mr and Mrs Mansfield each consent to provision being made out of the frozen funds for the other's legal expenses.

Whether there should be provision for Mrs Mansfield's legal expenses

It is appropriate that I firstly deal with the question of funding for Mrs Mansfield's legal representation because the issues involved are relatively simple.
Mrs Mansfield is not the subject of any criminal prosecution or of an application for a criminal benefits declaration. She has been drawn into the present proceedings simply because she is married to Mr Mansfield and is the joint owner with him of certain property which has been frozen. In this regard, all substantial assets in which she had any interest were originally subject to the freezing order including her family's motor vehicles and furniture.
There is an obvious public interest in preserving the assets in which Mrs Mansfield has an interest, because they are allegedly under Mr Mansfield's "effective control" and may become liable to confiscation in the event that there is a criminal benefits declaration. Nevertheless, at all material times Mrs Mansfield has had the clear entitlement to seek the release of her assets, and to apply for variations to the freezing order to allow for her reasonable living expenses. In that regard, and as a result of contested hearings, she has achieved some degree of success.
It is also clear from the materials before me, that as a result of the freezing order, Mrs Mansfield has lacked the means to fund her legal representation. In striking a balance between her interests and the public interest in the preservation of her assets, I consider that it is fair to make some reasonable provision for that representation.
However, I am not presently in a position to assess what might be reasonable amounts for the costs of past and future representation. In respect of the past costs that are claimed, there will need to be some process akin to taxation which could best be performed by a Registrar. It seems to me that the question of future costs of representation is largely contingent upon whether or not the DPP is ultimately successful in obtaining a criminal benefits declaration against Mr Mansfield, and it may be better to leave the question of assessment of those costs until then.
I will hear further submissions from the DPP and Mrs Mansfield as to the appropriate methods of determining reasonable allowances for her past and future legal expenses.

Whether there should be provision for Mr Mansfield's legal expenses

The most salient factor affecting the outcome of Mr Mansfield's application is that there are simply insufficient funds in the frozen accounts to meet all of the legal expenses that he seeks. The first claim on those funds must necessarily be adequate provision for Mr and Mrs Mansfields' future living and business expenses which at the current rate total $93,600 per year. It is an obvious moot point as to what period should be provided for.
In my opinion, the claim which deserves second priority on the frozen funds is provision for Mrs Mansfield's legal expenses. Whatever provisions are made for these expenses and for the combined living expenses, the balance which is theoretically available to meet Mr Mansfield's legal expenses is extremely limited. There is no evidence before me to indicate the quantum of Mr Mansfield's legal costs to date, but I consider it highly improbable that the residual balance would be sufficient to meet that claim. Certainly, there would be no scope to fund the approximate $1,000,000 cost of Mr Mansfield's future representation in the criminal proceedings.
Further matters of significance are that Mr Mansfield has been legally represented in all proceedings to date, and that there is nothing before me to indicate that this situation will not continue. In my view, when striking a balance between the public interest in preserving the funds and Mr Mansfield's interest in obtaining legal representation, I need to be satisfied at the very least that he will not have legal representation if provision is not made. There is simply no evidence as to this.
Mr Mansfield's contention through his counsel that "he would prefer to be able to pay for his own lawyers rather than rely on others to do so" is quite understandable, but this is not a factor which can outweigh the public interest in protecting the State's prospective or contingent rights in the property.
For these reasons I consider that the present state of the evidence does not justify the exercise of my discretion to vary the freezing order to allow for Mr Mansfield's legal expenses. In my view, I will only be in a position to exercise that discretion if the following issues are addressed by further evidence:
-the approximate quantum of the claim for Mr Mansfield's legal expenses to date;
-whether Mr Mansfield is under any present obligation to pay or reimburse those expenses;
-whether Mr Mansfield will be unable to obtain continuing representation in either or both of the civil and criminal proceedings if provision is not made from the frozen property;
-if so, whether the Legal Aid Commission would consider funding such representation either with or without a contribution from the frozen property.
It is in the interest of all parties (and of the Mansfields' long suffering creditors) that any question as to Mr Mansfield's ability to obtain continuing representation be speedily resolved. For that reason I have decided that I should not immediately dismiss his application for variation of the freezing order but should offer him the opportunity of an adjournment with leave to file further affidavits which address the above matters. Mr Mansfield is not obliged to take up this opportunity, but if chooses not to do so, his application will have to be dismissed.
I will accordingly hear from Mr Mansfield and the DPP as to the appropriate orders in these circumstances.