Director of Public Prosecutions (WA) v Mansfield [No 12]
[2009] WASC 219
•13 AUGUST 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MANSFIELD [No 12] [2009] WASC 219
CORAM: JENKINS J
HEARD: 25-28 MAY, 17 JUNE, 3 JULY 2009
DELIVERED : 13 AUGUST 2009
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
RespondentNIGEL CUNNINGHAM MANSFIELD
ROSALIND JANE MANSFIELD
First ObjectorsTHE STATE OF WESTERN AUSTRALIA
Respondent to the Objectors
Catchwords:
Criminal law - Confiscation of property - Application for criminal benefits declaration - Objection to confiscation of frozen property - Power to hear 'no case to answer' application prior to commencement of trial - Provisional exercise of discretion to hear 'no case to answer' application prior to trial
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 15, s 16
Rules of the Supreme Court 1971 (WA), O 1, O 29, O 31, O 32
Result:
The Court has no power to hear a no case to answer submission at this time. Even if it did, it would not be an appropriate exercise of discretion to do so.
Category: B
Representation:
Counsel:
Applicant: Mr M J Hawkins
Respondent: Mr M L Bennett
First-named First Objector : Mr M L Bennett
Second-named First Objector : Mr C E Chenu (25 & 26 May only)
Respondent to the Objectors : Mr M J Hawkins
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 Objectors : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Director of Public Prosecutions (WA) v Mansfield (2008) 35 WAR 431
Director of Public Prosecutions v Mansfield [No 10] [2008] WASC 125
Director of Public Prosecutions v Mansfield [No 9] [2007] WASC 267
Fletcher v London & North Western Railway Company [1892] 1 QB 122
Holland by his next friend Roberta Ashworth Holland v The Metropolitan Health Services Board [2001] WASCA 155
Mansfield v Director of Public Prosecutions (2007) 33 WAR 227
R v Hyman & French (1990) 2 WAR 222
Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54
The Director of Public Prosecutions for Western Australia v Mansfield [2003] WASC 186
The Director of Public Prosecutions v Mansfield [2004] WASC 116
JENKINS J: These are my reasons in respect of preliminary issues relating to [2] of the respondent's application, by chamber summons dated 22 May 2009, for an order that judgment be entered for the respondent.
The basis of [2] is that the respondent submits that he has 'no case to answer' to the applicant's case as disclosed by the evidence filed and served on him in accordance with the directions of Blaxell J made on 9 April 2009.
I have identified two preliminary issues which I should determine before I proceed further with the application. The first is whether a 'no case to answer' submission can be entertained by the court prior to the commencement of the trial. The second is, if it can, whether this is an appropriate case in which to do so.
Background
Before stating my reasons for decision on these preliminary issues it is necessary for me to provide some background information.
The primary application, being an application for a criminal benefits declaration against the respondent, pursuant to the Criminal Property Confiscation Act 2000 (WA) (CPC Act) s 15 was made by notice of motion, filed on 12 July 2002.
On the same date a freezing order was made under the CPC Act s 43(3) which froze all of the respondent's and second named first objectors' property, as well as the property of various corporations.
On 21 July 2003 orders were made for the primary application to proceed by way of pleadings and for it to be heard together with objection proceedings to the freezing order.
In January 2004 a number of orders were made requiring the applicant to file the affidavits on which he intended to rely in the primary application. On the last occasion a springing order was made.
On 28 February 2006 an order was made giving the applicant leave to file further affidavits within 21 days of the filing of an amended defence.
By virtue of a number of interlocutory applications, it was not until 29 August 2008 that the respondent was given leave to amend his defence in terms of a minute of re‑amended defence.
On 20 February 2009 the respondent applied to have the primary application entered for trial, but I understand that it has not been so entered.
On 27 February, 27 March and 9 April 2009 orders were made to extend the time for the filing of the applicant's affidavits.
On 27 March 2009, Blaxell J also considered the respondent's minute of proposed orders that the primary application be listed for a hearing for the respondent to make a 'no case to answer' submission or a submission to strike out the affidavits of the applicant. On 9 April 2009 Blaxell J made that order.
On 25 ‑ 28 May 2009 and on various dates afterwards, I heard and determined the respondent's application to strike out a voluminous amount of the applicant's proposed affidavit evidence. At the outset of that hearing, I advised the parties that I required submissions about my power to hear a 'no case to answer' submission prior to trial. Mr Hawkins, the applicant's counsel, advised me that the applicant did not accept that I had 'jurisdiction' to hear and determine the application. Whilst the distinction between jurisdiction and power is not always easy to discern, I consider this an issue as to the court's power. I have now received written and oral submissions from the parties on the issue.
Power to hear a 'no case to answer' application
Neither party has referred me to a case in which a judge has heard and determined a 'no case to answer' submission prior to the commencement of the relevant trial. Neither has the respondent identified a provision of a written law which expressly creates such a power. Nor has he sought to rely on any common law or inherent power of the court. Rather, he submits that the broad case management powers in the Rules of the Supreme Court 1971 (WA) (SCR) O 29 grant me the power to hear such an application at this time.
Before considering SCR O 29 I will consider other possible sources of the power.
I have looked at a large number of cases which have discussed the nature of the power and/or exercised the power to rule that a party has 'no case to answer'. I have found only one which expressly says that such an application may be heard before trial. However, the issue was not essential to the determination of that case as by the time the judgment was delivered the plaintiff had closed its case. That decision has been referred to, with apparent approval, in a number of subsequent cases but the later cases have never turned on whether a 'no case to answer' application may be entertained prior to trial.
The case in point is Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54. Perry J, at 68 ‑ 69 said:
As to that aspect of the matter it seems to me that there are primarily four situations in which a submission of no case to answer may be made. They are:
1.Where no reference at all to the evidence is required.
2.Where a reference to the evidence is required only to establish that there is an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of action.
3.Where it is argued that on a consideration of the evidence adduced by the plaintiff taken at its highest from the plaintiff's point of view, the evidence could not support the causes of action pleaded.
4.The situation where it is contended that although there is some evidence to support the plaintiff's claim, it is so weak and unreliable that it should be dismissed without calling upon the defendant.
In the criminal jurisdiction, category 4 would be met by following the course referred to in R v Prasad (1979) 23 SASR 161: see in particular per White J at 172.
As to category 1, this should normally be argued on the pleadings, preferably before the trial commences. No question of election arises in that situation. Likewise, consideration of a submission of no case to answer in category 2 should not involve an election.
As to categories 3 and 4, these situations should normally be met by the application of what I have referred to as the general rule that counsel should be called upon to elect.
It has been conceded by all counsel that the case falls into category 3.
Before leaving the question of the situations in which a submission of no case to answer may be made, I should say that it seems to me that some confusion has arisen by the use of the expression 'question of law'. It has sometimes been suggested that no election should be required if the consideration of the submissions is confined to a question of law.
But the adequacy of the evidence to support the plaintiff's case is always a question of law. I think it better to say that if consideration of the submission of no case to answer involves the need to evaluate the evidence, other than simply to identify an hiatus of the kind referred to in example 2 above, the moving party should normally be put to his election. (my emphasis)
SCR O 32 r 4 and r 5 provide that particular issues of law and/or fact may be tried separately and before other issues are tried. SCR O 31 r 2 also permits a question of law to be determined prior to any evidence being led. It may be that Perry J, in Southern Resources, had in mind the exercise of powers such as these when he spoke of a matter of law being heard before trial. However, the respondent has not sought to invoke either O 31 or O 32 in this matter. His application is squarely to have a submission of 'no case to answer' heard and determined before the trial has commenced. It is also clear to me that the respondent's application would require substantial reference to the evidence so that it is not an application in category 1 as described by Perry J.
In The Director of Public Prosecutions for Western Australia v Mansfield [2003] WASC 186, Barker J, in the course of giving reasons for dismissing the respondent's application to have these proceedings struck out for want of prosecution, said:
It is common to state that this Court, like other superior courts, has an 'inherent jurisdiction' to dismiss an action or other proceeding for want of prosecution and that no prior warning of the application is required: Ulowski v Miller [1968] SASR 277 at 282, 283, 285; Lewandowski v Lovell (1994) 11 WAR 124. However, it may be more correct to refer to the Court's inherent power to so order: Williams v Spautz (1992) 174 CLR 509 at 518 fn (22) [37].
Again, this is not the power which the respondent seeks to have the court exercise at this time.
Other recognised means of having proceedings summarily dismissed were considered by Le Miere J in The Director of Public Prosecutions v Mansfield [2004] WASC 116. In the course of giving reasons for dismissing the respondent's application for judgment to be entered for him in these proceedings Le Miere J said:
Order 16 r 1 provides that the Court may order that judgment be entered for the defendant if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily.
Senior counsel for the respondent submits that the Court should summarily dispose of the DPP's notice of motion for a criminal benefits declaration as frivolous or vexatious in point of law because it is so obviously untenable that it cannot possibly succeed.
The power given by the Rules to enter judgment for the defendant makes express provision for what is, in any event, the Court's inherent jurisdiction to protect its process from abuse by summarily disposing of an action as frivolous or vexatious in point of law if it is so obviously untenable that it cannot possibly succeed: Burton v President of the Shire of Bairnsdale (1908) 7 CLR 76 at 92. However the power to order summary judgment should be exercised with great care, and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for trial in the ordinary way, and once it appears that there is a real question, whether of fact or law and the rights of the parties depend upon it, it is not competent for the Court to dismiss the action as frivolous or vexatious and an abuse of process: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 [33] ‑ [35].
Again these are not powers which the respondent asks the court to exercise on this occasion.
In the criminal case of R v Hyman & French (1990) 2 WAR 222, after the prosecutor's opening address, defence counsel submitted that, as a matter of law, the prosecution case could not succeed. The trial judge indicated that if the prosecution case proceeded as was anticipated in the opening address he would have to direct a verdict of acquittal. The prosecutor then called no evidence and a verdict of acquittal was entered. On an application for an extension of time within which to leave, the Western Australian Criminal Court of Appeal, as it then was, was critical of the procedure adopted in the lower court. For example, Brinsden J said:
In hindsight, the issue could have been conveniently dealt with by way of demurrer proceedings or failing that, the Crown ought to have called evidence and then allowed the defence to submit a no case.
In Fletcher v London & North Western Railway Company [1892] 1 QB 122, the English Court of Appeal held that in a civil action a court has no power to enter judgment for a respondent after the plaintiff's opening, except with the consent of the plaintiff. The court justified this rule on the basis that the evidence led during the trial may differ from the plaintiff's opening.
The respondent submits that this can not be the case here because the case is to be heard on affidavits and those affidavits have been ordered to be filed. However, that view takes an overly simplistic view of the pre‑trial and trial process. Even where an order for the filing of affidavits has been made, a party may obtain leave to put on further affidavits or, at the trial, a party may be given leave to adduce oral testimony or the cross‑examination of witnesses may adduce evidence that is favourable to the moving party. Another possibility is that what is a live issue between the parties prior to trial, may not be so by the time of the applicant's opening or the close of the applicant's case. Also, in this case, I have determined that some rulings on the evidence must wait until trial. Thus, the precise nature of the evidence to be called at trial is still not known.
In conclusion, I am not prepared to rely on Perry J's obiter remarks in Southern Resources so as to hold that the court has an inherent power or, putting O 29 to one side for the moment, that there is a power in a written law to hear and determine a 'no case to answer' submission prior to the commencement of a trial and before the tender of any evidence.
As well as being unsupported by persuasive authority, reasoning from first principles, it is unlikely that such a power exists at common law. This is because the gravamen of a 'no case to answer' submission is that even though the opposing party has led all the evidence on which they intend to rely there is insufficient evidence to prove the case. It is on that basis that the tribunal of law can rule with certainty on the application that the applying party has no case to answer.
I turn now to consider whether SCR O 29 confers such power. Order 29 r 2(1) states:
2.Court may review any case
(1)In any proceedings the Court may at any time of its own motion on notice to the parties or upon the hearing of a summons for directions or other application review the progress of the proceedings and make such orders or give such directions to lead to their efficient and timely disposal as it may consider just and expedient and, without limiting the generality of that power, may ‑
…
None of the powers listed in SCR O 29 r 2(1) are relevant. Rather, Mr Bennett, the respondent's counsel, submits that O 29 gives me 'the broadest power to make directions that lead to the efficient and timely disposal of any action before [me] in a manner that is considered just and expedient'. He submits that the power in O 29 r 2(1) gave Blaxell J the power to direct that an application in the form of a 'no case to answer' submission be heard at the conclusion of the strike out application. He submits that it also gives me the power to entertain and rule on the submission at that time. Mr Bennett said:
We are dealing now not where the court hears the evidence of a party for the first time at the conclusion of the viva voce evidence but in a regime that calls for the filing of affidavits that set out in the four corners of the affidavit the entirety of the case of the applicant, and it's possible in this day and age for the unusual and the exceptional case, the hard case, to lead to its efficient and timely disposal in a manner that's both just and expedient to direct that the respondent have the ability to say to the court, 'Take the evidence in the four corners of the shreds of what's left of the applicant's affidavits, some of them don't even have a corner left, and say look at those affidavits, your Honour, and they don't make out the pleaded case at all.
It's a hybrid application and I'm the first to concede it's a hybrid. It's possibly an unprecedented hybrid application. None of that counts against it as a proper exercise of discretion under order 29 rule 2. It's a necessary hybrid because this director has spent seven years being unable to bring a case to court and the respondent is suffering the most dire and severe prejudice by reason of that delay; and on top of that, all the evidence has gone stale.
Confronted with a circumstance of repeated indulgence, the court directed in an endeavour to try and efficiently and in a timely manner dispose of this case, this procedure be introduced. Your Honour should have no hesitation in accepting that the order, the direction that was given by Blaxell J, unappealed, was perfectly within the power given under order 29 rule 2 of the orders of the court and your Honour ought to have no hesitation in accepting the overwhelming logic that lay behind the giving of that direction.
We accept that it's a tremendously difficult burden to overcome that we say to the court now, 'Take the four corners of the affidavits; that's it, that's the evidence and it won't make out a case,' but that's the argument we desire to run at the conclusion of striking out the evidence because so many of the pieces of evidence go, leaving glaring holes.
Much of the substance of these submissions amount to an argument that because this is a case where the delay and unpreparedness of the applicant has resulted in prejudice to the respondent, I ought to hear the 'no case to answer' submission at this time. Thus, these are submissions going more to the question of the exercise of a discretion to hear the 'no case to answer' submission rather than to the question of whether the discretion exists. An argument that the discretion ought to exist to meet what the respondent perceives as the justice of the case is not of much assistance to me in determining the proper construction of O 29 r 2(1).
The respondent's argument on the construction of O 29 r 2 appears to be that it is a modern rule, designed to meet the exigencies of modern litigation, which requires the utmost flexibility to be given to judges to make orders in respect of cases, including orders as to when a 'no case to answer' application will be entertained, so as to lead to the efficient and timely disposal of cases in a manner that is just and expedient.
Quite correctly, the respondent also submits that O 29 ought to be construed in light of SCR O 1 r 4A and r 4B which state:
4A. Elimination of delays
The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
4B. System of case flow management
(1)Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of ‑
(a)promoting the just determination of litigation;
(b)disposing efficiently of the business of the Court;
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business at a cost affordable by parties.
(2)These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in paragraph (1).
These rules emphasise the relevance of efficiency and cost as matters favouring an early determination of the issues between the parties.
The role of provisions such as SCR O 1 r 4A and r 4B in the construction and exercise of the powers contained in the rules of the court has recently been clarified by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. Accepting as I do that the goal and objects identified in those rules inform the construction of O 29, they can not grant power to the court to do something which is not contemplated by O 29.
Further, the rules must be read fairly, according to their own terms. SCR O 1 r 4A requires that there be a goal of the elimination of unnecessary delay between the commencement of proceedings and the 'final determination' of proceedings. It is apparent from reading the whole of r 4A that the goal it identifies is the goal of minimising interlocutory proceedings and not that of eliminating trials.
Moving onto r 4B, superficially, a number of the objectives there listed would be furthered by empowering the court to hear a 'no case to answer' submission prior to trial. However, as I have said in [42] only one outcome of a 'no case to answer' submission heard prior to trial would finalise proceedings, subject to an appeal. Other outcomes would not further the objectives in r 4B. Further, it can not be that those objectives override a party's right, except in very specific and well recognised circumstances, to have a 'just determination' of the issues between them and their opponents at trial.
Some of what the respondent says about O 29 is not contentious. What is in doubt, in my view, is whether the rule goes so far as to permit a judge to deny a party a trial of their case, by purporting to examine the law and evidence, determining the issues as to fact and law and then entering judgment for the respondent, all before the trial has commenced.
The rule permits a judge, if justice requires it, to make directions as to the time and mode of trial. Such directions may, because of constraints relating to time, for example, not permit a party to present his or her case in the way they would wish to do so or with all the evidence he or she would like to call. This is even when such a decision 'may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants': Aon [94]. It is a different thing to construe the rule as empowering a judge to deny a party a trial or hearing, entirely. If such a power exists I would expect it to be expressly stated or to be a recognised power at common law.
SCR O 32 permits certain issues between the parties to be tried separately and at different times from other issues. Nonetheless, they are still tried between the parties and the decisions thereon bind the parties to the trial.
Under O 31, preliminary questions of law may be determined, but there is no sense in which the determination of any issue of law disposes of the proceedings and amounts to a trial of all the issues between the parties; Holland by his next friend Roberta Ashworth Holland v The Metropolitan Health Services Board [2001] WASCA 155 [36]. Although the parties are bound by the decision on the preliminary issue, it does not have the effect of denying the plaintiff a trial of his or her case. Neither is it a substitute for a trial.
The respondent has put forward some reasons as to why the determination of a 'no case to answer' submission would lead to the efficient and timely disposal of the case and why it would be just and expedient to hear and determine the application. These are outlined in the oral submissions, which I have quoted above. However, there are contrary considerations.
For example, there are a number of possible outcomes from such a hearing. The first is that the respondent will be successful and there will be no appeal from that decision. In that circumstance the decision to hear the 'no case to answer' submission would lead to the efficient and timely disposition of the matter. Another is that application will be unsuccessful. In that circumstance, the decision to hear the 'no case to answer' submission would have delayed the ultimate resolution of the matter, resulted in the parties incurring further costs and given rise to the possibility of the expression of differing judicial views on the law or facts. Another possible outcome is that the respondent will be partially successful, leaving other issues to be determined at trial. This would also mean that the parties had incurred additional costs and the final determination of the primary application would also have been delayed. In such a circumstance there may be the complication and delay of an interlocutory appeal.
In the last two circumstances, the process of hearing the 'no case to answer' application and determining it, would have put the applicant on notice of matters that he has to attend to at trial. I acknowledge that, as it is the respondent which is pressing the court to hear the 'no case to answer' application, he can only blame himself if the procedure he presses for enables the applicant to hear and address deficiencies in his case prior to trial. Notwithstanding that, it seems to me that it is desirable in the interests of justice for there to be one trial and for all issues between the parties to be dealt with at the time.
Another complicating feature of this case is that the onus of proof is not solely on the applicant. The CPC Act s 16, in essence, provides that the court must make a criminal benefits declaration if it is satisfied of three matters. The burden of proof of the first two matters lie on the applicant and the burden of proof of the last matter lies on the respondent. The respondent could only succeed on a 'no case' submission if there was no case to answer on either or both of the first two matters.
It is implicit in the respondent's submissions that he wants to have this application dealt with whilst the applicant is in a state of unpreparedness. Portions of the applicant's proposed evidence have recently been ruled inadmissible because of their form or because they purport to give evidence about documents which are not in evidence. As a corollary to these rulings, some portions of opinion evidence which are based on evidence which has been ruled to be inadmissible, have also been ruled to be inadmissible. The applicant has given notice that it intends to correct some of these deficiencies by seeking leave to adduce the missing documents in evidence. The respondent says that due to the extreme delay in this matter, the applicant should not have further time to correct the deficiencies in his case. He should be simply, 'no cased'.
Even having regard to modern case management principles, it is an extreme step to take to seek to 'no case' a party before a matter has even been entered for hearing, let alone listed for hearing. In normal circumstances, the solution to delay by one or both parties would be to impose case management directions with tight timeframes, leading to an early hearing date. If the applicant failed to present a case to answer at trial then a 'no case to answer' submission may be allowed. It should not be assumed that if this application is refused that the applicant will be given leave to put on further evidence or that if this application is granted the applicant would be refused such leave. The two things are not interdependent.
The respondent says that he should not have to face a full trial in this case because of the additional cost and expense involved in getting the matter up for hearing and the cost of the hearing itself, in circumstances where he has already had his property frozen for seven years.
In my opinion, the risk of further delay in the final determination of the primary application is an influential but not a compelling reason to find a power to entertain a 'no case to answer' submission at this time. If the applicant's failure to put on evidence amounts to a failure to prosecute his case, an abuse of the processes of the court or a contempt of court there are existing remedies that can be employed to ensure that justice is done between the parties.
More compelling is the issue of a cost of a trial to the respondent and to the community, especially in light of the effect of the freezing notice on the respondent's ability to produce income. On the other hand, the applicant has been required to give an undertaking as to damages. If the applicant loses the primary application, the respondent can be compensated for his financial losses through this undertaking and through an order for costs. In spite of that protection, even if the applicant is unsuccessful at trial there will be a personal cost to the respondent, which is probably irrecoverable: Aon [99] ‑ [100]. Even though the applicant has significantly reduced his witness list, a trial of this matter will be relatively long and costly. If there is a way that in fairness to both parties it can be determined without a full trial then it is desirable for that approach to be adopted. However, it is not readily apparent to me that the applicant's case is so weak or the holes in it, so apparent, that a 'no case to answer' submission would be inevitably successful or that hearing and determining the 'no case to answer' application at this time would be a quick and cheap way to do justice between the parties.
Lastly, the respondent has suggested that I ought to place weight on Blaxell J's decision to list the respondent's 'no case to answer' application for hearing.
I have already told the parties that, in my opinion, the order of another judge to list an application for hearing can not give me the power to hear and determine the application, if that power does not exist. Nevertheless, I also said that I would consider the orders of Blaxell J and the circumstances in which they were made to ascertain if they are of assistance to me in determining this preliminary issue.
Before turning to Blaxell J's comments, it is instructive to consider some of the other history of the proceedings. This summary focuses on the history of the application for a criminal benefits declaration rather than the numerous applications which have been made in respect of the related freezing orders.
As I have said, in 2003 the respondent brought an application to have the primary application dismissed for want of prosecution. In the course of his judgment dismissing the respondent's application Barker J said:
Rather, it seems to me that, whatever the initial explanation for the position taken by Mr Mansfield is, Mr Mansfield was prepared not to prosecute the objection proceedings he and Mrs Mansfield had commenced in respect of the freezing order and understood that the DPP would not bring its application for criminal benefits declaration to a head pending the completion of the NCA/ACC investigations of matters concerning him.
It seems to me that Mr and Mrs Mansfield's position in that respect changed at some point either in late 2002 or early 2003, perhaps as a result of the commencement of proceedings in the Supreme Court against Mr Mansfield by the trustees of the Fitzroy All Trust. As can be seen from the terms of the consent judgment entered against Mr Mansfield in those proceedings, Mr Mansfield has recently, in effect, acknowledged that most of the property the subject of the freezing order, whether in his name or Mrs Mansfield's name or in their joint names, is the property of the Fitzroy All Trust. As a result of the consent judgment entered in July 2003, the only items of property referred to in the freezing order not the subject of Mr Mansfield's effective acknowledgement are those referred to in the freezing order pars 1(b), (c), (e), (f) and (g). Paragraph 1(b) includes the real property at 18 Addison Street, South Perth and Unit 3, 28 Eric Street, Como. However, par 8 of the consent judgment appears to determine that, since at least 12 July 2002 (when the freezing order was made), the Fitzroy All Trust, is entitled to a legal and/or equitable interest in such property. However, the full terms of par 8 of the judgment may suggest that it is properly to be construed as an order which provides a form of security in relation to those items of real property designed to ensure the repayment of the sum of $1,190,000, which is referred to in par 7 of the judgment.
In all of these circumstances, I am not satisfied that the failure of the DPP to prosecute the DPP's application for criminal interest declaration by having programming orders made, the matter listed and a hearing conducted before May 2003, constitutes an intentional and contumelious delay in those proceedings. The delay such as it is, is to be explained largely by the course of events described above.
Nor am I satisfied that the delay has caused such prejudice to Mr or Mrs Mansfield as to deny them a fair trial on the hearing of the DPP's application. The Mansfields are as able to respond to the DPP's application now as they were during the latter part of 2002. They have not demonstrated any prejudice in this regard. I am mindful that in appropriate circumstances prejudice may be found in a very broad sense despite the absence of specific prejudice: Hughes v Gales (supra) at 450. Neither broad nor specific prejudice is established here by the Mansfields.
In any event, in considering what prejudice Mr and Mrs Mansfield may have suffered, it is appropriate, in my view, to have regard to the terms of the consent judgment in Supreme Court action CIV 2565 of 2002. It is difficult to understand why Mr and Mrs Mansfield should complain about prejudice in relation to the freezing order when, as of 15 April 2003, Mr Mansfield consented to summary judgment being entered in that action, and then on 19 June 2003 consented to the further judgment being entered against him in the terms annexed to these reasons. By the terms of the latter judgment, Mr Mansfield has acknowledged, both for himself and Mrs Mansfield, that most of the property has been the property of the FA Trust since at least August 2000: see par 4 of the judgment. And as to the real property referred to in par 1(b) of the freezing order, Mr Mansfield has, in effect, acknowledged that, since at least 12 July 2002 when the freezing order was made, the FA Trust has held a legal and equitable interest in it equal to the sum of the monetary amount payable on the summary judgment and for damages: see par 8 of the consent judgment.
If Mr Mansfield accepts that, since at the very latest 12 July 2002, he and Mrs Mansfield have had no or little interest in the property the subject of the freezing order, it is difficult to see how they, or at least he, can claim prejudice sufficient to cause the Court to conclude that the failure of the DPP to prosecute its application for criminal benefits declaration should be dismissed for want of prosecution [93] ‑ [98].
Since Barker J's reasons were published I have been advised that most of the monies in the frozen bank accounts have been released to the respondent and/or the second named first objector for legal or living expenses. It has not been explained to me how the respondent's legal or equitable interests in the frozen property has altered from that described by Barker J.
It is part of the respondent's case that as much of the frozen property has been expended to pay for his and the second named first objector's living and legal expenses there is no legitimate interest in the applicant pursuing the criminal benefits declaration. Nevertheless, there remains the issue of the respondent's alleged liability under the CPC Act, the fact that some property is still frozen and the issue of the undertaking as to damages which may enable the respondent to obtain damages from the applicant, if he is unsuccessful in the primary application. Thus, there remain issues between the parties which survive the expenditure of the frozen property and which warrant a determination of the merits of the primary application at trial.
The respondent's applications to dismiss the proceedings for want of prosecution and to stay it as an abuse of process were filed on 1 May 2003. The applications were dismissed on 26 September 2003.
On 26 November 2003 the respondent filed applications to strike out the amended statement of claim and for summary judgment in the criminal benefits declaration matter. The respondent's applications were made on the basis that the primary application for a criminal benefits declaration is frivolous or vexatious and/or alternatively, that the respondent has a good defence on the merits. In the alternative, the respondent applied to strike out the words 'and is' in [9] of the amended statement of claim and the whole of [9C] and [9D]. By a further chamber summons, the respondent sought an order that the freezing order be struck out as disclosing no reasonable cause of action or, alternatively, that any further proceedings relating to the property the subject of the freezing order be stayed as an abuse of the court process.
On 2 June 2004, Le Miere J delivered his reasons for striking out the words 'and is' in [9] of the amended statement of claim and the whole of [9C] and [9D] of the amended statement of claim and dismissing the application for summary judgment. A further amended statement of claim was filed.
Le Miere J summarised the history of the application to that date in the following terms:
On 12 July 2002, McKechnie J made a freezing order under subs 43(3) of the Criminal Property Confiscation Act 2000 (WA) (the 'CPC Act'). The order froze property including bank accounts in the name of the respondent, bank accounts in the name of the respondent and his wife, real property registered in the name of the respondent and his wife, motor vehicles, shares, personal property and property owned or controlled by a number of corporations. That same day the Director of Public Prosecutions for Western Australia (DPP) filed an application by notice of motion for a criminal benefits declaration, pursuant to s 15 of the CPC Act. The notice of motion sought a declaration that the respondent had acquired a criminal benefit and specifying, pursuant to s 18(2)(b) of the CPC Act, the assessed value of the criminal benefit.
On 9 August 2002, the respondent filed an objection to the confiscation of the frozen property pursuant to s 79(1) of the CPC Act. At the same time, the respondent filed a chamber summons to set aside the freezing order.
On 14 August 2002, the respondent was charged with three Commonwealth offences: defrauding the Commonwealth, conspiracy to defraud the Commonwealth and money laundering. On the same day, objection proceedings were commenced by J Kizon, the Fitzroy All Trust and E Dharma, pursuant to s 79(1) of the CPC Act.
On 22 August 2002, the respondent's application to set aside the freezing notice was adjourned sine die.
On 27 August 2002, the DPP's application for a criminal benefits declaration was adjourned sine die by consent.
On 14 November 2002, the Fitzroy All Trust commenced proceedings against the respondent by writ of summons in respect of certain of the property frozen by the freezing order.
On 14 February 2003, the three Commonwealth charges against the respondent were withdrawn and two charges of obtaining a financial advantage by deception under s 134.2 of the Criminal Code Act 1995 (Cth) were instead laid against him. The respondent pleaded guilty to these offences. The matter was adjourned to 8 April 2003 for a sentencing hearing. On 8 April 2003, the sentencing hearing was adjourned to 16 May 2003.
On 15 April 2003, by consent, Master Newnes ordered summary judgment against the respondent in the proceedings brought against him by the Fitzroy All Trust.
On 1 May 2003, the respondent filed a chamber summons seeking to strike out the freezing order and the DPP's application for a criminal benefits declaration on the grounds of want of prosecution and/or and abuse of process.
On 21 July 2003, McKechnie J made programming orders with respect to the DPP's application for a criminal benefits declaration. McKechnie J ordered that the application for criminal benefits declaration and the objections of the first objectors proceed by way of pleadings and be heard together. His Honour made orders for the filing of a statement of claim and defence.
On 19 August 2003, the DPP filed a statement of claim. By par 8 of this statement of claim, the DPP alleged that the respondent had contravened subs 1002G(2) of the Corporations Law of Western Australia (the Corporations Law) and by s 1311 of the Corporations Law each of those contraventions was an offence pursuant to the Corporations Law. The DPP further pleaded that each of the offences was a confiscation offence within the meaning of s 141 of the CPC Act and that the respondent was involved in the commission of confiscation offences within the meaning of par 16(1)(b) of the CPC Act.
On 8 September 2003, Wheeler J dismissed the second objector's application to set aside the freezing order with respect to certain property.
On 18 September 2003, by consent, Hammond DCJ gave leave to the respondent to withdraw his pleas of guilty to the two Commonwealth deception charges. Those charges are yet to be dealt with.
On 19 September 2003, the respondent filed a defence. The respondent pleaded, amongst other things, that s 1002G of the Corporations Law is not an offence against a law in force in Australia as required by s 141 of the CPC Act.
On 26 September 2003, Barker J dismissed the respondent's application to strike out the freezing order and the DPP's application for a criminal benefits declaration on the grounds of want of prosecution and/or an abuse of process.
On 30 October 2003, the DPP filed an amended statement of claim.
On 25 November 2003, the respondent filed a defence to the DPP's amended statement of claim [2] - [18].
On 13 September 2004 the applicant provided an affidavit of discovery.
On 23 August 2005 the respondent filed a chamber summons to dismiss the proceedings as an abuse of process. On 5 September 2005 the respondent filed another application for orders striking out the proceedings. These applications were not heard in the usual sequence of events.
On 28 February 2006, Blaxell J made programming orders giving the DPP leave to file further affidavits in support of the application for a criminal benefits declaration within 21 days of the filing of an amended defence.
On 24 March 2006 the applicant applied for leave to amend the statement of claim. On 2 November 2006 Blaxell J delivered his reasons with respect to the applicant's application to amend his further amended statement of claim. In dismissing the application, Blaxell J said, referring to the time since the filing of the primary application and the grant of the related freezing order:
Since then, there has been a great deal of interlocutory activity between the parties which has been almost entirely focused upon the freezing order rather than the application for a criminal benefits declaration. In this regard it is relevant to note that at all material times Mr Mansfield has also been subject to a criminal prosecution which ordinarily would have priority in disposition over the present civil proceedings. However, as a result of my decision on 28 April 2006 refusing a stay ([2006] WASC 72), the application for a criminal benefits declaration has been revived.
By a chamber summons dated 24 March 2006 the DPP has applied for leave to amend the statement of claim in the proceedings for a criminal benefits declaration. These are my reasons for decision in respect of that application.
Blaxell J refused leave to the applicant to amend in terms of his minute of proposed amendments.
Blaxell J's decision was subject to an appeal by the applicant.
On 30 November 2006 Blaxell J required the applicant to provide an undertaking as to damages (in respect of both the respondent and the second named first objector) as a condition for the continuation of the freezing order and pending the final disposition of the proceedings. The applicant duly provided that undertaking.
On 16 February 2007, the Court of Appeal allowed the applicant's appeal: Mansfield v Director of Public Prosecutions (2007) 33 WAR 227.
Blaxell J granted the applicant leave to amend the further amended statement of claim on 14 March 2007.
On 15 March 2007 (following the application by the respondent to strike out the primary proceedings as an abuse of process), Blaxell J made a consent order referring certain questions to the Court of Appeal. Those questions concerned the validity of the primary proceedings, namely whether property can be frozen and an application made for a criminal benefits declaration under the CPC Act when the relevant offences are alleged to have been committed in breach of Commonwealth law, which has its own regime of confiscatory legislation.
On 18 April 2007, the applicant applied to strike out parts of the respondent's defence.
On 19 April 2007, the respondent applied to set aside orders requiring him to file an amended defence. On 23 April 2007 the respondent filed an amended defence.
On 15 November 2007, Blaxell J struck out portions of the amended defence: Director of Public Prosecutions v Mansfield [No 9] [2007] WASC 267. At [12], His Honour said:
Self evidently, there has been a lack of satisfactory progress in all aspects of the proceedings between the parties, but there is little point in trying to attribute blame for this situation. The most sensible way forward would be to expedite the criminal proceedings, but this cannot occur until Mr Mansfield has found a way of funding his defence. For the reasons outlined below, there is very little prospect that that funding can be provided from his frozen assets. Accordingly, if Mr Mansfield is unable to obtain a grant of legal aid the parties will face the serious possibility that there is simply no way forward and that the proceedings will end up in what has been described (by counsel for the DPP) as a 'state of gridlock'.
Later that month, Blaxell J ordered the respondent to file an application for leave to amend his defence after the determination by the Court of Appeal of the reserved questions. This was filed on 1 February 2008.
On 18 January 2008, the Court of Appeal delivered its reasons in respect of the referred questions: Director of Public Prosecutions (WA) v Mansfield (2008) 35 WAR 431. The answers to the referred questions were primarily answered in a manner contrary to the basis of the respondent's application, which had prompted the referral.
On 18 March 2008 the applicant filed an application to strike out the amended defence. On 30 June 2008 Blaxell J delivered reasons in respect of all the then outstanding interlocutory issues related to the pleadings in the primary application and the objection proceedings: Director of Public Prosecutions v Mansfield [No 10] [2008] WASC 125. His Honour refused to strike out the defence but did refuse the respondent leave to file the pleading. He granted the respondent time to reformulate some paragraphs of the defence.
On 29 August 2008 the respondent filed his minute of re‑amended defence. On 17 December 2008 leave was granted to the respondent to amend his defence in terms of the minute.
On 2 January 2009 the applicant filed an application for further and better particulars of the re‑amended defence. The respondent was ordered, by consent, to provide particulars.
On 26 February 2009 the applicant applied for an order that the respondent provide further and better particulars of the re‑amended defence.
That application was heard on 27 March 2009 by Blaxell J, along with an application by the applicant for an extension of time within which to file affidavits. His honour dismissed the applicant's application for further and better particulars.
As I have already said, on the same date, His honour considered the respondent's minute of proposed orders that the primary application be listed for a hearing for the respondent to make a 'no case to answer' submission or a submission to strike out the affidavits of the applicant.
Mr Bennett submitted to Blaxell J that the affidavits filed or intended to be relied on by the applicant were not in admissible form. He said that once they were struck out, the applicant would have no case. Mr Bennett submitted that his Honour's patience ought to be exhausted, as was the property that had been frozen. Mr Bennett asked rhetorically, 'how many second chances does the applicant get?' He also said 'Why face a 10 - 12 week trial?' Presumably, this was in respect of his comment that the frozen property had been exhausted.
Distilling the essence of Mr Bennett's submissions, the respondent submitted that once the application to strike out the applicant's affidavits was heard, the respondent would 'be able to quickly identify' that there was insufficient evidence to prove the applicant's case. The 'no case to answer' submission ought then to be heard, without putting the respondent to an election, and allowed.
The applicant's counsel, Mr Hawkins, told Blaxell J that the respondent's minute had only been received by the applicant, after hours, the previous evening and he was not in a position to deal with it. His Honour then said to Mr Hawkins:
BLAXELL J; So I have the minutes before me and the respondent's minute proposes that there be a two‑day hearing to hear a no‑case‑to‑answer submission, which of course would entail a decision as to whether or not the respondent should be put to an election. I can see some merit in that proposal, if that's going to resolve the matter. What would you say?
Mr Hawkins' response related not to the proposals in the respondent's minute but to the applicant's application for an extension of time within which to file affidavits, which was also before the court. I infer that Mr Hawkins was of the view that, if an extension of time was obtained, the respondent's position that the applicant had insufficient evidence to prove his case would be weakened.
After further exchanges with counsel, Blaxell J said:
BLAXELL J: Well, I'm in the situation where I think justice requires that matters be brought to a head as soon as possible. I am disposed to give you a limited time to verify the statements, and only the existing statements are being served, by affidavit, alternatively to give you leave to verify them by video‑link at the hearing. I think what needs to happen is that this directions hearing needs to be adjourned for a short time, for the purpose of determining when it can come on for hearing. I think it should be four days as suggested, because I suspect two days will not be enough.
I think that should be for the purposes of enabling the respondent to make a 'no case to answer' submission, alternatively to apply to strike out the affidavits of the applicant, and hopefully such a hearing with crystallise matters and enable some degree of finality to be achieved.
The matter was then adjourned to enable the parties to find a hearing date.
It is clear from perusing the transcript of 27 March 2009 that the applicant did not make a submission about the efficacy of setting the matter down for a hearing so that the respondent could make a 'no case to answer' submission. The comments which Blaxell J made about doing so were made without the benefit of reasoned argument from both sides of the bar table.
When the matter next came on for mention on 9 April 2009, further programming orders were made. No further submissions, nor judicial comments, were made about the merits of the procedure proposed by the respondent.
I understand that related criminal proceedings against the respondent are still pending in the District Court.
Whilst I share Blaxell J's frustration at the delays in getting the primary application to hearing and am of the view that the primary application must be listed for trial expeditiously, I do not consider that anything which was said to Blaxell J or was said by Blaxell J is a justification for holding that O 29 creates a power to hear and determine a 'no case to answer' submission prior to trial. There are well recognised inherent powers and express statutory and regulatory powers to manage this case, in accordance with the goal in SCR O 1 r 4A and the objectives in r 4B, without resorting to such a device.
Having considered all the foregoing matters, I conclude that O 29 does not create a power to hear and determine a 'no case to answer' submission before trial. Order 29 provides the court with broad case management powers but it does not empower the court to deny a party a trial in circumstances that are not already recognised at law.
Provisional exercise of discretion to hear 'no case to answer' application
As I indicated to the parties, for the purpose of resolving as many issues as possible at this time, I would provisionally determine whether, if I was wrong in this respect and O 29 granted me a discretion to hear and determine a 'no case to answer' submission before trial, I would exercise my discretion to do so.
The determination of this issue requires me to reconsider the arguments I have earlier considered as to whether the power to hear a 'no case to answer' submission prior to trial exists so as to determine whether entertaining such a submission at this time would lead to the 'efficient and timely disposal of the matter in a manner that was just and expedient'.
The respondent listed the following matters as favouring the exercise of the discretion to hear a 'no case submission' at this time:
1.The length of time the proceedings have been conducted;
2.The seriousness of the issues being litigated and the financial position of the respondent;
3.The orders that have been made for the filing and service of affidavits as early as 2003;
4.The failure on the part of the applicant to progress in a timely and efficient manner the litigation to date;
5.The impossibility facing the respondent of conducting a trial involving in excess of 30 witnesses and potentially in the order of 12 weeks duration; and
6.The extent to which the evidence filed by the applicant fails to meet the basic standards required of the court in civil litigation as to relevance, admissibility and form.
In respect of no 4 above, self‑evidently the applicant has been responsible for the delay in the filing of his admissible evidence. The delay has been most crucial since the defence was filed on 17 December 2008. The only justification for the delay which has been put forward in explanation by the applicant is that a solicitor, formerly in charge of the file, went on extended sick leave without putting the affidavits and documents referred to therein in an admissible form. This explains the reason for the most recent delay but does not excuse it.
Despite this, the respondent has been a substantial contributor to the delay in getting the matter to trial. This is because of the number of interlocutory applications taken or defended by him in the course of the litigation. I have no doubt that the interlocutory proceedings have taken the parties' attentions away from preparing the evidence for trial and have delayed the matter being entered for trial.
The respondent submits that that is immaterial because the applicant has not been able to get his evidence together in an admissible form despite having the extra time available due to the length of the interlocutory proceedings. There is some strength in this submission. However, I also believe that the interlocutory proceedings and the subsequent delay in the finalisation of the pleadings, which define the issues between the parties, focussed the applicant's attention on dealing with the interlocutory proceedings rather than on the preparation of the evidence.
The respondent's contribution to the delay diminishes the weight which I might otherwise give to delay as a matter favouring the exercise of a discretion to hear a 'no case to answer' submission prior to trial. Nevertheless, the gross delay in progressing the primary application to trial is a weighty matter favouring hearing a 'no case to answer' submission now if that would bring the primary application to an end and promote 'the just determination of the litigation'.
The respondent also submits that the applicant's evidence is 'stale'. I am of the view that this submission is of little weight, in this context. It is debatable what the submission means but, in any event, the respondent can not be heard to say, on the one hand, that the applicant was supposed to have filed his evidence back in 2004 or prior to that and then, on the other hand, complain that the affidavits filed by the applicant are either over five years old or the statements which are attached to them are of that vintage.
In respect of no 5 above, it is not clear to me that it is impossible for the respondent to conduct the trial of this matter. He has managed to date to conduct this litigation by making numerous interlocutory applications, a number of which have been unsuccessful. If the reference to 'impossibility' is a reference to an alleged inability to continue to fund the litigation or to obtain legal aid in order to do so, then I would expect up to date evidence of this.
Also in respect of no 5 above, whilst the respondent has often asserted that the trial will be long and may be of the length of 12 weeks, after having reviewed much of the applicant's evidence, I doubt very much the accuracy of this assessment of length. The evidence‑in‑chief of the applicant's witnesses will be given by affidavit. There will be cross‑examination of the applicant's witnesses but if, as the respondent asserts, the State's case is very weak then, on the information currently before me, I do not see the State's case taking more than four weeks. The applicant's submissions point out that if the respondent concedes the allegedly relevant share trades, evidence would not need to be led from 15 witnesses and the trial would be shortened considerably.
As to no 6 above, there is much merit in the respondent's submission with respect to the affidavits as originally filed. However, the court and the parties have now been through a laborious winnowing process in order to determine which parts of the affidavits are relevant and in admissible form. It follows that the evidence which has survived that process meets the basic requirements for admissibility. Tempting as it may be, I am not persuaded that it is appropriate to punish a party for past wrongdoing by hearing a 'no case to answer' submission prior to trial. If the respondent's submission is a comment on the current strength of the applicant's case, I note that the respondent, in his written submissions dated 10 July 2009 asserted that:
… the evidence adduced by the [applicant], taken at its highest could not support the cause of action pleaded. Although there is some evidence to support parts of the [applicant's] claim (claims which the respondents says are uncontroversial, such as that the respondent traded shares) the only relevant evidence is so weak, unreliable and deficient that it should be dismissed without calling upon the defendant.
The respondent did not give examples of the apparently glaring deficiencies in the applicant's case. Although I have made no judgment as to whether such deficiencies exist, without the benefit of submissions from the respondent on this issue, it is not apparent to me where those deficiencies are so that he must be successful in a 'no case to answer' submission.
With the exception of these comments, I agree with the respondent's assessment of the above matters that favour the hearing of a 'no case to answer' submission at this time.
The circumstances which favour refusing to hear a 'no case to answer' submission at this time are:
1.The hearing and the determination of the application will itself take a number of days and be costly, although not as long and costly as a trial;
2.There is no guarantee that the application will result in the primary application being heard and determined more quickly or cheaply;
3.There are still outstanding evidentiary issues between the parties which must await the exercise of the trial judge's discretion;
4.A 'no case to answer' submission should be heard by the trial judge to avoid the possibility of contradictory views being expressed in respect of the same issues;
5.The court will be in a better position to determine such an application at the close of the applicant's evidence;
6.The respondent is substantially protected as to costs and damages by the applicant's undertaking as to damages;
7.The court has broad case management powers which will assist it to progress the primary application to trial; and
8.The matter has not been entered for trial.
The discretion to hear a no case submission prior to trial, if it exists, must be exercised in conjunction with the goal and objectives in SCR O 1 r 4A and r 4B: Aon [88]; SCR O 1 r 4B(2).
An important question to answer in the exercise of that discretion is whether hearing a no case submission prior to trial would be more likely to achieve those ends than requiring the primary application to be entered and listed for trial within strict time frames. In my opinion it would not.
The respondent's present position appears to be that this is a case which falls within categories three or four of Perry J's analysis in the Southern Resources case. I am of the view that a 'no case to answer' submission in either of these categories should not be heard before trial. It is only at trial, that the strength of the applicant's case, both in fact and law, can truly be determined.
However, Blaxell J appears to have held a different view. If I was of the view that there was power to hear a 'no case to answer' submission at this time I would have to consider the extent to which I should maintain comity with his Honour's view. As I am of the view that there is no power to hear the application, the question of the exercise of my discretion does not arise. The primary application should now proceed to trial within a very tight timeframe.
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