First International Merchant Bank Holdings Ltd v The State of Western Australia
[2020] WASC 157
•13 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: FIRST INTERNATIONAL MERCHANT BANK HOLDINGS LTD -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 157
CORAM: ARCHER J
HEARD: ON THE PAPERS
DELIVERED : 13 MAY 2020
FILE NO/S: CPCA 46 of 2018
BETWEEN: FIRST INTERNATIONAL MERCHANT BANK HOLDINGS LTD
First Plaintiff
JAMES HONG TEE
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal Property Confiscation Act 2000 (WA) - Objection to confiscation - Want of prosecution
Legislation:
Nil
Result:
Objection to confiscation dismissed
Representation:
Counsel:
| First Plaintiff | : | No appearance (on the papers) |
| Second Plaintiff | : | No appearance (on the papers) |
| Defendant | : | No appearance (on the papers) |
Solicitors:
| First Plaintiff | : | In person |
| Second Plaintiff | : | In person |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Director of Public Prosecutions for Western Australia v Mansfield [2003] WASC 186
First International Merchant Bank Holdings Ltd v The State of Western Australia [2015] WASC 164
Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398
ARCHER J:
Introduction
The defendant, the State of Western Australia, seeks an order that the plaintiffs' objection to confiscation of frozen property be dismissed. These are my reasons for making the order.
The facts
The defendant relied on the evidence contained in four affidavits filed in related proceedings, CIV 1452 of 2001 (Related Proceedings). The affidavits were sworn by Adam Blagaich on 22 October 2014, Ricky James Hutchinson on 23 March 2015, and Bruce Robert Maxwell Wimbridge on 23 March 2015 and another on 15 April 2015.
On 12 March 2001, Freezing Notice AISFN010008 was issued under the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act).
Later that month, the plaintiffs commenced the Related Proceedings in the Supreme Court objecting to the confiscation of the property frozen by the Freezing Notice. The plaintiffs also commenced identical proceedings in the District Court.
In both initiating documents, the plaintiffs identified their Australian address as 'c/- Gunning Barristers and Solicitors, Level 3, 524 Hay Street, Perth WA 6000'. The plaintiffs also included the telephone and fax numbers, and what purported to be a reference number, for that firm.
The following month, the plaintiffs filed an application in the Supreme Court to remit the District Court proceedings to the Supreme Court. It was remitted by order of McLure J on 10 May 2001. These are the proceedings the subject of this judgment.
After that time, the plaintiffs took no steps to prosecute either proceeding.
On 29 December 2003, the defendant sent correspondence to the plaintiffs care of Gunning Barristers and Solicitors, Level 3, 524 Hay Street. On 6 January 2004, Mr Young of that firm[1] responded that the firm was not, and had never been, instructed to act in relation to the matter, and had never agreed to accept service on behalf of the second plaintiff.
[1] By that time, the firm was called 'Gunning Young'. However, it had the same address, phone number, and fax number as had been recorded in the plaintiffs' initiating documents.
In May 2014, the defendant filed a Notice of Intention to Proceed in the Related Proceedings. The defendant was, eventually, able to serve this on Mr Tee.
In October 2014, the defendant filed a summons in the Related Proceedings seeking an order that the plaintiffs' objection be dismissed. The defendant sought the order on the basis that the plaintiffs had failed to progress the proceedings. On 22 April 2015, Allanson J dismissed the Related Proceedings for want of prosecution.[2]
[2] First International Merchant Bank Holdings Ltd v The State of Western Australia [2015] WASC 164.
On 20 December 2019, the defendant filed a summons in these proceedings seeking, among other things, an order that these proceedings also be dismissed for want of prosecution.
The defendant's summons was listed for directions before me on 30 January 2020. On that day, the second plaintiff, Mr Tee, appeared. He sought leave to appear for the first plaintiff for the limited purpose of submitting that the defendant had failed to properly serve the first plaintiff with the summons. Mr Tee argued that, as the first plaintiff was a foreign entity, the defendant needed to make an application for service out of the jurisdiction.[3] I made orders requiring each of the plaintiffs to file a Form 5AA, identifying their Western Australian address for service, within 14 days (Form 5AA Order). I also ordered that the matter would be adjourned to 27 February 2020.
[3] ts 2 ‑ 3, 30 January 2020.
Neither plaintiff filed a Form 5AA.
On 27 February 2020, Mr Tee failed to appear and there was no appearance on his behalf or on behalf of the first plaintiff. I ordered that the plaintiffs comply with the Form 5AA Order within seven days. I also ordered the matter be relisted on 26 March 2020.
On 26 March 2020, there was again no appearance on behalf of the plaintiffs. I ordered that, unless the plaintiffs complied with the Form 5AA Order, I would determine the defendant's summons on the papers.
As at the date of this decision, the plaintiffs have still not filed Form 5AAs.
Relevant principles
Proceedings under the Confiscation Act are taken to be civil proceedings for all purposes.[4] The court has the power to dismiss proceedings under the Confiscation Act for want of prosecution.[5]
[4] Section 102(1) of the Confiscation Act.
[5] Director of Public Prosecutions for Western Australia v Mansfield [2003] WASC 186 [43] ‑ [44].
In Hancock Family Memorial Foundation Ltd v Fieldhouse,[6] the Court of Appeal discussed the relevant principles. In short:
[6] Hancock Family Memorial Foundation Ltd v Fieldhouse[2005] WASCA 93; (2005) 30 WAR 398 [99], [103].
1.The court's discretion to dismiss an action for want of prosecution is not affected by any absolute or inflexible rules.
2.There are five matters to be considered which will usually be relevant to the court's decision to exercise the discretion:
(a)the length of the delay;
(b)the explanation for the delay;
(c)the hardship to the plaintiff if the action is dismissed and the cause of action left statute‑barred;
(d)the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and
(e)the conduct of the defendant in the litigation.
3.These considerations will usually be persuasive. However, they are not a checklist. They are not determinative. Rather, they are matters the court should take into account in considering what justice requires.
Analysis
The delay has been nearly 20 years. This is an extraordinary delay.
There is no explanation for the delay. What I do know is that the plaintiffs' conduct of the proceedings has been woeful. In particular, the plaintiffs gave as their address for service a law firm that denies it was ever instructed. Mr Tee then attended court to argue that the defendant had not properly served the first plaintiff with the summons seeking dismissal of these proceedings, and that the defendant needed to make an application for service out of the jurisdiction. This argument was made despite the obvious fact that the proceedings were commenced in this jurisdiction by the plaintiffs. The plaintiffs then failed to comply with my orders requiring them to file Form 5AAs.
There is no evidence of any hardship to the plaintiffs if the proceedings are dismissed. The plaintiffs have not put forward evidence in support of their objection, other than an affidavit filed by Mr Tee in which various assertions were made unsupported by any documentary evidence.[7] In any event, the plaintiffs have shown no inclination to progress their objection.
[7] Affidavit of James Hong Tee sworn 29 March 2001.
There is no evidence of prejudice to the defendant if the action was to proceed notwithstanding the delay. However, until these proceedings are determined or dismissed, the defendant cannot obtain orders declaring that the property has been confiscated. In addition, if the plaintiffs did now seek to adduce evidence in support of their objection, it is likely to be more difficult for the defendant to respond to that evidence, given the passage of time.
The defendant itself has been very slow to progress this matter. However, this could not have been for the purposes of causing the plaintiffs to believe that their objection would not be opposed. It is far more likely that it was a simple oversight, and I would infer this.
Weighing up all of the circumstances, I am satisfied that the balance of justice favours dismissing the objection for want of prosecution. I would make orders in terms of the Chambers Summons to Dismiss the Plaintiffs' Originating Summons and Notice of Objection to Confiscation filed 20 December 2019.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer13 MAY 2020
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