Director of Public Prosecutions (WA) v Mansfield [No 10] - [2008] WASC 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MANSFIELD [No 10] [2008] WASC 125

CORAM: BLAXELL J

HEARD: 18 MARCH 2008

DELIVERED : 30 JUNE 2008

FILE NO/S: CIV 1977 of 2002

MATTER :Section 15, s 41, s 79 and s 84 of the Criminal Property Confiscation Act 2000

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
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 - Application for criminal benefits declaration - Objection to confiscation of frozen property - Interlocutory orders in respect of pleadings - Turns on own facts

Legislation:

Criminal Property Confiscation Act 2000 (WA)

Result:

Rulings as to various interlocutory issues

Category: B

Representation:

Counsel:

Applicant:    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 T A Staples

Solicitors:

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

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

Bennett & Co (a firm) v Director of Public Prosecutions (WA) (2005) 154 A Crim R 279
Brink's Mat Ltd v Elcombe [1988] 3 All ER 188
Cameron v Troy and Co [2001] WASCA 400
Director of Public Prosecutions (WA) v Mansfield [No 9] [2007] WASC 267
Jones v Maynard [1951] 1 All ER 802
Mansfield v The Director of Public Prosecutions (WA) [2006] HCA 38
Odin Central Service Pty Ltd v Interstruct Pty Ltd (1992) 7 WAR 57
State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41‑691
Thomas A Edison Ltd v Bullock (1913) 15 CLR 679
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190

BLAXELL J: In these long‑running proceedings the applicant (the DPP) applies for a criminal benefits declaration against the respondent (Mr Mansfield), and the first objectors (Mr and Mrs Mansfield) object to confiscation of their property which has been frozen pursuant to an order made under s 43 of the Criminal Property Confiscation Act 2000 (WA) (the Act).
On 27 November 2007, I made various interlocutory orders (as per my decision in Director of Public Prosecutions (WA) v Mansfield [No 9] [2007] WASC 267) including orders to the following effect:
•Paragraph 6 of the DPP's chamber summons dated 18 April 2007 (seeking orders in respect of the pleadings in the objection proceedings) was adjourned pending the determination of the appeal then pending in the Court of Appeal (CACV 65 of 2007).
•Within 14 days of the determination of those appeal proceedings, Mr Mansfield was to file and serve an application for leave to re‑amend his amended defence (in the proceedings for a criminal benefits declaration), and such application was to be supported by a minute of his proposed re‑amended defence.
•Within 14 days of the determination of the appeal proceedings, Mr and Mrs Mansfield were each required to:
(1)file and serve an application to cure certain defects in their notice of objection and chamber summons dated 7 August 2002;
(2)file and serve a statement of claim in the objection proceedings.
Following the determination of the appeal, Mr and Mrs Mansfield substantially complied with the above orders, but the DPP objects to the pleadings which have been or are proposed to be filed. For the purpose of determining the issues that are now raised, I have before me the following applications and other materials:
(1)Mr Mansfield's application (by chamber summons dated 1 February 2008) for leave to re‑amend his defence in the primary proceedings.
(2)A minute (dated 1 February 2008) of Mr Mansfield's proposed re‑amended defence.
(3)The DPP's application (in par 6 of its chamber summons dated 18 April 2007) for orders that Mr and Mrs Mansfield:
(3.1)provide full particulars of the grounds for their notice of objection and chamber summons dated 7 August 2002;
(3.2)file and serve a statement of claim in the objection proceedings.
(4)A minute of proposed amendments to Mr and Mrs Mansfield's chamber summons dated 7 August 2002 initiating the objection proceedings.
(5)Mr Mansfield's statement of claim (dated 1 February 2008) in the objection proceedings.
(6)Mrs Mansfield's statement of claim (dated 1 February 2008) in the objection proceedings.
(7)A minute dated 12 March 2008 of proposed amendments to Mrs Mansfield's said statement of claim.
To the extent that Mr and/or Mrs Mansfield require leave for any of the proposed amendments, the issues raised by the DPP can be determined in that context. However, the parties have not complied with all formalities and there is no application by the DPP to strike out Mr Mansfield's statement of claim, by Mr and Mrs Mansfield to cure the defects in the notice of objection and chamber summons dated 7 August 2002 (as ordered on 27 November 2007), or by Mrs Mansfield for leave to amend her statement of claim. Rather than requiring these applications to be filed and thus delaying the proceedings, I intend to simply rule on all outstanding issues by exercising my powers under O 29 r 2.

Mr Mansfield's minute of proposed re‑amended defence (dated 1 February 2008)

The DPP contends that I should refuse Mr Mansfield leave to re‑amend his defence, because the pleading in its amended form would contain 'evasive general denials', would fail to inform the applicant of the real issues to be tried, and would be embarrassing. To understand these objections, it is necessary to briefly outline the DPP's statement of claim in the primary proceedings.
The DPP applies for a criminal benefits declaration against Mr Mansfield pursuant to s 15(1) of the Act. The statement of claim (in par 2) alleges that at all material times a company known as My Casino Ltd (MCL) was incorporated under the laws of Western Australia and carried on the business of providing an internet facility to customers using credit cards to participate in gaming or betting. The company had shares and options listed on the Australian Stock Exchange.
Paragraph 3 pleads that during the period between 9 June and 3 August 2000, Mr Mansfield received a number of emails (from one Diana Latham) which progressively informed him of events which were detrimental to MCL's ability to conduct its business. It is further alleged that on or about 12 July 2000, Mr Mansfield became aware that Barclays Bank had shut down the facility which allowed players at MCL to use credit cards.
Paragraph 4 of the statement of claim pleads that all of this information in Mr Mansfield's possession was not 'generally available' between at least 9 June 2000 and 3 August 2000. Paragraph 5 further alleges (inter alia) that because Mr Mansfield was a consultant to MCL with confidential knowledge of its affairs, he knew or ought reasonably to have known that the information (as pleaded in par 4) was not generally available. Paragraph 6 pleads that Mr Mansfield also knew or ought reasonably to have known that if the information was generally available, it might have had a material effect on the price or value of the shares and options in MCL.
Paragraph 7 pleads that between 13 June and 2 August 2000 Mr Mansfield instructed certain broking firms to sell, and thereby procured the sale of shares and options in MCL in a series of 37 separate transactions.
Paragraphs 8 ‑ 11 of the statement of claim plead the provisions of certain State and Commonwealth Acts, pursuant to which it is said that by reason of the facts previously pleaded, Mr Mansfield committed 'confiscation offences' (within the meaning of s 16(1)(b) of the Act).
Paragraph 12 of the statement of claim alleges that on various dates between 20 June and 14 August 2000, the proceeds of the sales of the shares and options (totalling $3,321,527.60) were paid to, or at the direction of, Mr Mansfield into specified bank accounts. Paragraphs 13 and 14 then plead that each of the sums referred to in par 12 is a constituent of Mr Mansfield's wealth (within the meaning of s 143 of the Act) which was wholly derived or realised as a result of his involvement in the commission of the alleged confiscation offences.
Paragraph 15 goes on to plead that Mr Mansfield has acquired criminal benefits in the sum of $3,321,527.60, and the relief claimed is a declaration to that effect (as well as an order that he pay the said sum to the State pursuant to s 20 of the Act).
Although the minute of Mr Mansfield's proposed re‑amended defence does make some admissions, it is mostly a series of denials of 'each and every allegation contained in' each paragraph of the statement of claim. (This contrasts with the present defence, which simply 'denies' the same paragraphs of the statement of claim.)
The DPP objects to the phrase 'denies each and every allegation' appearing throughout the minute on the basis that it offends basic rules of pleading. In this regard, the DPP submits that a 'holding defence' based on evasive general denials should be firmly discouraged because it causes inconvenience, delay and expense and prompts unnecessary interlocutory applications. It is further submitted that a plaintiff is entitled to know what the real issues are so that he or she may get on with his or her litigation, and a party who unnecessarily prolongs litigation or adds to its costs brings the legal system into disrepute (see Odin Central Service Pty Ltd v Interstruct Pty Ltd (1992) 7 WAR 57, 59 ‑ 60, and Seaman Civil Procedure Western Australia [20.14.3]). The DPP also relies on the authority of Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190, where Ipp J held:
It has long been the practice, for tactical reasons, for lawyers to draft pleadings in such a form as to put the opposing party to proof of allegations, and even to deny allegations, notwithstanding that their factual instructions might not justify such failures to admit or denials. In my view, the circumstances under which litigation is conducted have changed to such a degree that this practice should no longer be tolerated. I do not intend, by saying this, to indicate that there should be any obligation on lawyers to exercise some credibility judgment as to the merits of their factual instructions. But, in my view, where a denial or putting to the proof would be inconsistent with the facts with which the pleader is instructed, the pleader should admit the allegation in question.
Traditionally, lawyers owe a duty of honesty and candour to the court. It is the general duty of lawyers not to mislead the court by stating facts which are untrue, or mislead the judge as to the true facts, or conceal from the court facts which ought to be drawn to the judge's attention, or knowingly permit a client to deceive the court: see Rondel v Worsley [1969] 1 AC 191 at 227. A trend towards a stringent duty of disclosure has become discernible: Vernon v Bosley (No 2) [1997] 1 All ER 614. Further, in modern times, there is an overriding duty on lawyers to assist in the prompt and economical disposal of litigation: see Giannerelli v Wraith (1988) 165 CLR 543 at 556; Ashmore v Corporation of Lloyds [1992] 1 WLR 446 at 453; [1992] 2 All ER 486 at 491 ‑ 492. In my view, the traditional requirement of honesty and candour on the part of lawyers and the modern duty to reduce unnecessary issues and costs, are inimical to the practice of denying or putting parties to the proof of facts which, according to the instructions in the lawyers' possession, should be admitted.
Pleadings perform an important function, apart from defining and crystallising the issues. They should be a mechanism for the purpose of arriving at the true issues in dispute. More than 100 years ago, for example, it was said that counsel's signature on a pleading is a 'voucher that the case is not a mere fiction': see Great Australian Gold Mining Co v Martin (1877) 5 Ch D 1 at 10. If counsel's signature on a pleading is to carry that imprimatur, counsel will have to be astute to ensure that the pleading admits facts that should be admitted.
In summary, in my opinion, the creation of false issues by tactical denials or failures to admit contained in pleadings is a ground for making special costs orders (193).
(See also Cameron v Troy and Co [2001] WASCA 400 [11].)
Quite obviously, there is a difference between a defence which contains an overabundance of 'tactical denials', and a pleading that consists of a series of evasive general denials which fail to answer each point of substance. The presently proposed pleading is arguably in the former category, but is certainly not in the latter, because there is a clear and specific denial of 'each and every allegation'. If in the long run, a re‑amended defence in its presently proposed form gives rise to 'special costs orders', this will not be because of the pleading point that is now raised. Accordingly, I rule that the proposed re‑amended defence is not defective simply because there is a specific denial of 'each and every allegation' in the statement of claim.
Nevertheless, in respect of the following specific paragraphs, the proposed manner of pleading is objectionable because it will result in inconsistent pleas which are likely to prejudice, embarrass or delay the fair trial of the proceedings:
(1)Paragraph 2(c): Mr Mansfield denies that at all material times MCL had issued shares which were 'securities' and 'division 3 financial products' within the meaning of the relevant State and Commonwealth legislation. However, this plea is contradicted by the admission in par 2(e) that 'in about April 2000 shares in MCL were listed on the ASX', and by the following admission in par 14:
[P]rior to any alleged confiscation offence by the Respondent, (which is denied) the Respondent had acquired each of the shares referred to in paragraph 7 of the amended statement of claim by the payments of funds and as such upon the sale of such shares the Respondent would have derived the sums referred to in paragraph 14 or a substantial portion thereof in any event.
PARTICULARS
The market value of the shares upon a fully informed market basis will be the subject of expert evidence.
(2)Paragraph 2(d): Mr Mansfield denies that MCL had issued options; yet in par 14 effectively admits that he 'derived' the sums referred to in par 14 of the statement of claim (which include the net proceeds of sale of options issued by MCL).
(3)Paragraph 2(e): Although Mr Mansfield admits that MCL had shares listed on the ASX 'in about April 2000' he denies that this was so 'at all material times'. This plea is inconsistent with the admissions in par 14 that he acquired the shares referred to in par 7 of the statement of claim and that he 'would have derived' the proceeds of their sale during the period between 20 June and 14 August 2000. Furthermore, the denial that MCL had options listed on the ASX at all material times is inconsistent with the matters referred to above in respect of par 2(d).
(4)Paragraph 7: Mr Mansfield denies procuring the sale of the shares and options particularised in par 7 of the statement of claim. However, he admits that he would have derived the proceeds of those sales 'or a substantial portion thereof in any event', and in that regard relies upon 'the market value of the shares upon a fully informed market basis'. This is tantamount to an admission that the sale of the shares and options as alleged in par 14 of the statement of claim did in fact occur, but if it is not that, then the plea is very vague and ambiguous.
(5)Paragraph 12: Mr Mansfield similarly denies that the net proceeds of the sales of the shares and options were paid at his direction into particular bank accounts. Yet again, this plea is inconsistent with the assertion that he 'would have derived the sums referred to in par 14 or a substantial portion thereof in any event'. This is because the sums referred to in par 14 of the statement of claim are in fact the proceeds of the sales deposited into bank accounts as particularised in par 12.
In deciding as above, I have not ignored Mr Mansfield's contention that he is compelled to deny all of the DPP's allegations because of the compendious nature of par 3 of the statement of claim. In this regard, Mr Mansfield complains that he has to answer the allegation that he became aware of a mixture of information on different dates, when there is no plea that each piece of information was separately 'price sensitive'. He also complains that the statement of claim does not attempt to break down the sales pleaded in par 7 and match each of them to the dates of information contained in par 3.
In my view, there is no substance to these assertions, and it is very clear what case Mr Mansfield has to meet. Paragraph 3 of the statement of claim particularises the dates on which Mr Mansfield allegedly received each piece of information, and par 7 particularises the date on which each sale allegedly occurred. The DPP's case is that Mr Mansfield was progressively informed of collective information which was increasingly detrimental to MCL and to the true value of its shares and options. Obviously, the issue at trial in relation to each sale will be what total information (if any) had come into Mr Mansfield's possession up until that point in time, and whether or not that information was 'price sensitive'.
It follows that Mr Mansfield's application for leave to re‑amend the defence in terms of the proposed minute should be refused. However, he should be allowed a reasonable time to re‑formulate the proposed amendments in light of the above rulings, and accordingly the application will be adjourned. I also make the observation that the issues raised by pars 11B ‑ 11F in the present defence were conclusively determined against Mr Mansfield by the Court of Appeal in its recent decision and therefore those paragraphs should not reappear in the amended pleading.

Mr and Mrs Mansfield's minute of proposed amended chamber summons (dated 1 February 2008)

As noted above, one of the orders that I made on 27 November 2007 was that within 14 days of the determination of the appeal proceedings, Mr and Mrs Mansfield were to file and serve an application to 'cure the defects in the notice of objection and chamber summons both dated 7 August 2002'. Although Mr and Mrs Mansfield have not strictly complied with this order, they have filed a minute of proposed amendments to the chamber summons dated 7 August 2002, and I will deal with this by exercising my powers under O 29 r 2.
The chamber summons is in fact the initiating process for the objection proceedings and O 81FA r 5(2) required that it be filed in the proceedings on the application for the freezing order. The DPP objects to the proposed amendments because the chamber summons in its amended form will not set out the grounds for the application as required by O 59 r 3(3). It is also submitted that 'the State does not know what case it has to meet when that summons is heard. This offends basic principles of procedural fairness'.
It is relevant to note that when the chamber summons was originally filed on 30 May 2003 it did not contain any grounds for the application and the DPP did not at that time make any objection. Instead, the DPP applied for and obtained the consent order made by McKechnie J on 21 July 2003 that the primary proceedings (viz. in respect of the application for a criminal benefits declaration) and the objection proceedings proceed by way of pleadings and be heard together.

It follows in my view that the requirement under O 59 r 3(3) that the chamber summons state the grounds of the application was subsumed by McKechnie J's order that the matter proceed by way of pleadings. It also follows that the DPP will know what case it has to meet by referring to the pleadings and not to the chamber summons.
As the proposed amendments are otherwise unobjectionable, Mr and Mrs Mansfield will have leave to amend the chamber summons in accordance with the minute dated 1 February 2008.

Mr Mansfield's statement of claim (dated 1 February 2008) in the objection proceedings

As ordered on 27 November 2007, Mr Mansfield has filed a separate statement of claim in the objection proceedings. Although there is no application to strike out this new pleading, the DPP contends that it fails to disclose a reasonable cause of action and is also irrelevant and embarrassing. I have heard submissions from both parties on these matters, and I propose to rule on the issues raised pursuant to O 29 r 2.
Mr Mansfield's claim in the objection proceedings is relatively simple. Paragraphs 1 - 4.13 inclusive of his statement of claim refer to the ex parte application by the DPP and the supporting affidavit which resulted in the freezing order made on 12 July 2002, as well as the terms of that order. Paragraph 5 pleads that the DPP:
5.1was under a duty to disclose to the Court all matters that could be raised against its claim;
5.2failed to disclose on the Application that the value of the criminal benefit to be alleged in the Applicant's criminal benefits declaration application, was far less than the value of the First Objector's property that the Applicant sought to freeze and ultimately was frozen pursuant to the Freezing Order, alternatively, arguably far less than such asserted value.
Paragraph 6 goes on to plead that this failure by the DPP to disclose such matters to the court resulted in the freezing of property 'the value of which was in excess of what was required to satisfy the alleged criminal benefit and entitles the Objectors to apply to set aside the freezing order'.
Paragraph 7 of the statement of claim pleads that the freezing order should be set aside on the further or alternative grounds that Mr Mansfield did not commit any confiscation offence, did not acquire any wealth as a result of the commission of any confiscation offence, did not acquire any criminal benefit, and:
7.4further or alternatively, if (which is denied) the First Named First Objector did commit a confiscation offence as alleged, the resulting benefit was not of the value alleged by the Applicant;
7.5further or alternatively, the Applicant has failed to diligently prosecute the within proceedings seeking a criminal benefits declaration against the First Named First Objector.
The relief claimed is an order setting aside the freezing order, costs on an indemnity basis, and 'such further other relief as to this Honourable Court may seem just'.
The DPP firstly contends that par 5.1 of the statement of claim fails to disclose a reasonable cause of action because it incorrectly states the duty owed by an applicant making an ex parte application to the court. In that regard the authorities establish that:
Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplied the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall.
[Thomas A Edison Ltd v Bullock (1913) 15 CLR 679, 682]
What is required is a full and fair disclosure not only of material facts known to the applicant but also of any additional facts which would have become known if he or she had made proper enquiries. The extent of the enquiries deemed to be proper depends upon the circumstances of the case including the nature of the case made out by the application and the probable effect of the order applied for on the defendant (Brink's Mat Ltd v Elcombe [1988] 3 All ER 188, 192). In my view par 5.1 of the statement of claim is an adequate summary of this principle and the DPP can be in no doubt as to the case it has to meet. Accordingly, I can see no basis for the DPP's objection.
The DPP next contends that pars 5.1, 5.2 and 6 of the statement of claim fail to disclose a reasonable cause of action when regard is had to the overall statutory scheme in the Act including s 41(2) (which provides for ex parte applications) and s 43(4), which provides:
The court is not to refuse to make a freezing order for property … only because the value of the property exceeds, or could exceed, the amount that a person could be liable to pay … if the declaration is made.
Clearly the DPP can make an ex parte application for a freezing order, and the court has power to freeze property to a value in excess of the liability which will arise if a criminal benefits declaration is made. However this has no bearing on the question whether there can be a proper exercise of the discretion by the court to make such an order in circumstances where it is not informed of the difference in value between the property frozen and the potential liability of the respondent. In this regard, the High Court has held in an appeal decision in respect of the present proceedings that:
A person whose property was affected by an ex parte freezing order might apply to have it set aside for such reasons as absence of jurisdiction, material non‑disclosure and changed circumstances.
[Mansfield v The Director of Public Prosecutions (WA) [2006] HCA 38 [8]]
There can be no better authority for the proposition that Mr Mansfield may apply to set aside the freezing order on the grounds of material non‑disclosure by the DPP at the time when the ex parte application was made. Accordingly, par 5.1, 5.2 and 6 of his statement of claim disclose a reasonable cause of action.
The DPP also objects to par 7.2 of the statement of claim which seeks to set aside the freezing order on the ground that Mr Mansfield did not acquire any wealth as a result of the commission of any confiscation offence. In this regard the DPP points out that its substantive application against Mr Mansfield concerns 'criminal benefits' (within the meaning of s 16 and s 145 of the Act), and not 'wealth' (s 143) or 'unexplained wealth' (s 11, s 12, s 13, s 14, s 144).
However, one of the facts that must be established before the court can make a criminal benefits declaration is that the 'benefit described in the application is a constituent of the respondent's wealth' (s 16(1)(a)). It is for this reason that the DPP pleads in par 13 of its statement of claim in the primary proceedings that each of the sums acquired by Mr Mansfield is a constituent of his wealth.
Furthermore, the freezing order is ancillary to the application for the criminal benefits declaration. In my view, it necessarily follows that there will be a valid basis for setting aside the freezing order if the benefits described in the application for the criminal benefits declaration are not constituents of his wealth. In that regard the grounds on which a freezing order may be set aside are not limited to those to be found in s 84 of the Act as:
[T]he objection provisions do not expressly purport to be exclusive of other means of challenging freezing orders; because it appears the objection provisions are predicated on the assumption that a freezing order has been properly made; because s 79 suggests that the objection provisions are directed more to the question of whether property should ultimately be confiscated, rather than to whether it should be frozen; and because, given the limited scope of the objection procedure and the onus on the objector, it would not readily be assumed that those provisions were intended to substitute for the much broader rights which the principles of natural justice would afford a person with an interest in frozen property.
[Bennett & Co (a firm) v Director of Public Prosecutions (WA)(2005) 154 A Crim R 279, 292]
For these reasons I rule that par 7.2 of Mr Mansfield's statement of claim discloses a reasonable cause of action.
The DPP lastly objects to par 7.5 of Mr Mansfield's statement of claim on the basis that it is irrelevant, scandalous, embarrassing and fails to disclose any reasonable cause of action. The question is whether the alleged failure by the DPP to diligently prosecute the proceedings for a criminal benefits declaration can provide a ground for setting aside the order.
As already noted, the freezing order in the present case is ancillary to the application for the criminal benefits declaration, and it has the purpose of protecting the prospective or contingent rights of the State. It is well recognised that the statutory scheme is draconian in its effect and that a freezing order is likely to have a severe impact on the person against whom it is made (Mansfield v The Director of Public Prosecutions (WA) [2006] HCA 38 [50]). Accordingly, there must always come a time when any continuing failure by the DPP to prosecute the primary proceedings would cause injustice of such a degree that the court would feel compelled to grant an application to set aside the freezing order. For these reasons, I consider that par 7.5 pleads a reasonable cause of action.

Mrs Mansfield's minute of amended statement of claim (dated 12 March 2008) in the objection proceedings

As ordered on 27 November 2007, Mrs Mansfield filed a separate statement of claim (dated 1 February 2008) in the objection proceedings. However this was filed one day late, and Mrs Mansfield in any event seeks leave to amend that statement of claim in accordance with a minute dated 12 March 2008.
Paragraphs 1 ‑ 4 inclusive of the minute refer to the DPP's ex parte application for the freezing order, the content of the affidavit which supported that application, and the details of the freezing order that was then made. Paragraphs 5 and 6 allege that the DPP failed to disclose to the court certain material facts concerning the circumstances in which Mrs Mansfield and her husband jointly purchased or acquired particular items of frozen property. One of those material facts is said to be the following:
5.10all items of household furniture and effects, computer equipment and antiques located at the Addison Street property, and the moneys in the bank accounts were not owned solely by the First Named First Objector but were and are owned by the First Objectors jointly, it being the common intention of the First Objectors throughout the course of their marriage to pool their personal property, having at all times treated the same as their joint common property ('the jointly owned chattels')
Paragraph 7 pleads that if all of the above matters had been disclosed, there would not have been a freezing order in respect of Mrs Mansfield's property.
Paragraph 8 pleads that the freezing order should be set aside on the further grounds that the DPP is not entitled to a criminal benefits declaration because Mr Mansfield has not committed any confiscation offence, has not obtained any criminal benefit, and:
8.2further or alternatively, the applicant has failed to proceed with a criminal benefits declaration against the First Named First Objector.
Paragraph 9 of the minute pleads that the freezing order has been varied to release various items of property but that it continues to apply to certain (named) items. Paragraph 10 then pleads a series of assertions as to the ownership and 'effective control' of particular items of frozen property. In broad terms, these assertions are to the following effect:
(1)Paragraph 10.1: Mrs Mansfield's joint interest in each of the Addison and Eric Street properties is neither owned nor effectively controlled by Mr Mansfield.
(2)Paragraph 10.2: Mr Mansfield does not solely own (and does not effectively control) any of the antiques, household furniture and effects, or computer equipment, as these are jointly owned with Mrs Mansfield (inter alia in the circumstances pleaded in par 5.10).
(3)Paragraphs 10.3 and 10.4: Similarly the bank accounts are neither owned nor effectively controlled by Mr Mansfield, but are jointly owned with Mrs Mansfield.
(4)Paragraph 10.5: Further or alternatively, the funds held in the Cash Management Accounts are beneficially owned by Mr and Mrs Mansfield as a result of those monies being jointly drawn from a joint loan facility with the Westpac Bank.
(5)Paragraph 10.6: The bank accounts were not effectively controlled by Mr Mansfield 'having regard to':
10.6.1the joint legal and/or equitable ownership of the First Objectors of the funds in the bank accounts.
10.6.2the domestic relationship between the First Objectors.
10.6.3the trust in relation to the Cash Management Account arising in the circumstances set out in paragraph 10.5.
The DPP objects to pars 5.1 to 5.7 inclusive on the basis that there is failure to plead all material facts:
The contracts of sale, loan agreements and mortgages to which reference is made in these paragraphs are required to be identified and the material terms pleaded in the ordinary way. As they presently stand, these paragraphs simply plead conclusions.
[Paragraph 6 of submissions dated 17 March 2008]
Accordingly, the DPP contends that (for example) the plea in par 5.2 that 'the First Objectors jointly purchased the Addison Street property for the sum of $725,000 on 29 October 1999' is deficient because there is no reference to the contract of sale which effected that purchase. I assume that the DPP similarly objects to the plea in par 5.3 that 'the First Objectors had been married for a period of 24 years, having been married on 3 June 1978' on the basis that there is no reference to the marriage certificate.
I have no hesitation in ruling against these submissions which I consider to be without merit. In my view, pars 5.1 to 5.7 inclusive do plead material facts and not conclusions, but if I am wrong about this, then I respectfully adopt the following comments by Drummond J of the Federal Court in State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41‑691, 42,828 ‑ 42,829:
The modern approach to litigation in this Court is not to strike out or order further particulars of a conclusionary pleading, if it appears that it is unnecessary in the circumstances of the particular case to achieve the object of pleadings. [21]
It is, in my opinion, a legitimate and necessary exercise of the controlling discretion the Court has over pleadings to utilise that power to ensure that a party is not required to incur the expense of providing masses of information in its pleadings that can be seen to be unnecessary for the proper disposition of the case, even through the prima facie obligation of a party to plead all material facts necessary to make out its cause of action could be said to require that. That is not to suggest that clarity in pleadings is not important. The need to focus on pleadings being used to identify the matters really in issue is particularly pressing in a complex case. But the rules of pleading do not now provide the only means for achieving this. And above all, those rules are not now intended to be an arsenal for litigation by attrition. [22]
The DPP makes the same objection in respect of par 5.10 which pleads joint ownership of the household chattels and bank accounts as a result of a common intention between Mr and Mrs Mansfield throughout the course of their marriage to pool their personal property. The DPP further objects that there are no material facts to identify when and how the alleged common intention arose such as the words of a conversation, a written agreement or other document, or any conduct from which it may be inferred.
In response to these submissions Mrs Mansfield contends that the determination of issues between a husband and wife as to title to personal property primarily depends upon the question of the intention of the parties. In Jones v Maynard [1951] 1 All ER 802, Vaisey J stated:
[W]here there is a joint purse between husband and wife - a common pool into which they put all their resources - it is not consistent with that conception that the joint account holder should thereafter (in this case in the event of a divorce) be divided up with reference to the respective contributions of husband and wife, crediting the husband with the whole of his earnings and the wife with the whole of her dividends [on investments belonging to the wife]. I do not believe that when once the joint pool has been formed it ought to be, and can be dissected in any such manner. I take the view that when spouses have a common purse and a pool of their resources, the husband's remuneration is earned on behalf of them both, and the idea that years afterwards one can dissect the contents of the pool by taking an elaborate account as to how much was paid in by the husband and how much was paid in by the wife is not consistent with the original fundamental idea of a joint purse or a common pool. When the money goes into the pool it is there as joint property.
In my view Mrs Mansfield is entitled to put her case on the basis submitted, and this being so, the material facts are the existence of the alleged common intention between her and her husband throughout their marriage, and their treatment of their pool of personal property as being jointly owned. Although those facts are expressed as generalities, I consider that they are sufficient for the DPP to know what case it has to meet.
The DPP objects to par 5.11 which pleads that Mrs Mansfield 'owned jewellery located at the Addison Street property which was also effectively controlled by her', on the grounds that it fails to state the material facts, and is embarrassing.
It is relevant to note that the Glossary to the Act defines 'owner' as 'a person who has a legal or equitable interest in the property'. Section 156 also provides that a person has 'effective control' of property if the person 'does not have the legal estate in the property, but the property is directly or indirectly subject to the control of the person, or is held for the ultimate benefit of the person'.
It follows that (for the purposes of the Act), legal title and effective control are mutually exclusive concepts, and that the plea in par 5.11 is embarrassing. Furthermore the plea that the jewellery was 'effectively controlled' by Mrs Mansfield is irrelevant. (What would be relevant would be a plea that the jewellery was not under Mr Mansfield's effective control.)
The DPP's remaining objections are mostly of a relatively minor nature, and in respect of pars 10.1, 10.2.1, 10.3 and 10.5.1, I consider them to be without merit. However the objections to pars 10.4 and 10.6 are in a different category, and in my view do raise matters of substance. Paragraphs 10.4 and 10.6 each plead (for separate reasons) that 'the bank accounts' were not effectively controlled by Mr Mansfield. It is nevertheless pleaded in pars 3.1 and 3.3 that these same bank accounts are held in the name of Mr Mansfield thus making him the legal owner of the same.
From the DPP's point of view it is sufficient for the purposes of its case to prove that Mr Mansfield is the legal owner of the bank accounts. This being so, the question of whether or not the bank accounts were under his 'effective control' simply does not arise. It necessarily follows that the pleas in pars 10.4 and 10.6 are irrelevant.
For all of the above reasons Mrs Mansfield will have leave to amend her statement of claim subject to the deletion of the proposed pars 10.4 and 10.6 and amendment of par 5.11.

Conclusion

In light of the above reasons and rulings, I will hear submissions from the parties as to the orders that should now be made.