First International Merchant Bank Holdings Ltd v The State of Western Australia - [2015] WASC 164

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FIRST INTERNATIONAL MERCHANT BANK HOLDINGS LTD -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 164

CORAM: ALLANSON J

HEARD: 22 APRIL 2015

DELIVERED : 22 APRIL 2015

PUBLISHED : 12 MAY 2015

FILE NO/S: CIV 1452 of 2001

MATTER :Sections 79 - 84 Criminal Property Confiscation Act 2000
Section 101 of the Criminal Property Confiscation Act 2000

BETWEEN: FIRST INTERNATIONAL MERCHANT BANK HOLDINGS LTD
JAMES HONG TEE
Plaintiffs
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal Property Confiscation Act 2000 (WA) - Applicant's objection to confiscation dismissed for want of prosecution

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 79, s 102
Judiciary Act 1903 (Cth), s 78B

Result:

Orders made

Category: B

Representation:

Counsel:

Plaintiffs: No appearance
Respondent: Mr M Seaman

Solicitors:

Plaintiffs: No appearance
Respondent: Director of Public Prosecutions (WA)

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

Attorney-General [NT] v Emmerson [2014] HCA 13
Centurion Trust Company Ltd v DPP [2008] WASCA 6; (2008) 35 WAR 463
Director of Public Prosecutions for Western Australia v Mansfield [2003] WASC 186
Lewandowski v Lovell (1994) 11 WAR 124

ALLANSON J: At the conclusion of the hearing of this matter on 22 April 2015, I allowed the respondent's application to dismiss the objection to confiscation of frozen property. I said I would deliver short reasons later, and these are the reasons for that decision.
James Hong Tee and First International Merchant Bank Holdings Limited commenced proceedings objecting to the confiscation of property under the Criminal Property Confiscation Act 2000 (WA). They have taken no steps to prosecute those proceedings for nearly 14 years. The respondent has applied for an order that the proceedings be dismissed for want of prosecution. These are my reasons for making that order.

The history of the matter

The following facts are taken primarily from the affidavit of Adam Blagaich, of the Office of the Director of Public Prosecutions, made on 22 October 2014. In particular, I have relied upon the documents attached to his affidavit. Where I have relied on other affidavits filed by the respondent, I indicate the source of the evidence. All references to the Act are to the Criminal Property Confiscation Act, unless otherwise stated.
The freezing notice was issued on 12 March 2001. The notice is expressed to be on the basis that there were reasonable grounds to suspect that the property, the subject of the notice, was crime used.
By s 79 of the Act, the applicants had 28 days from the service of the notice to file an objection. On 29 March 2001, the applicants filed (by originating summons) an objection and application to set aside the freezing notice (referred to in the application as a freezing order). The originating summons, and other documents filed on behalf of the applicants, gave an address for service c/- Gunning, Barristers & Solicitors, Level 3, 524 Hay St, Perth including a reference number for that firm.
The ground in the originating summons included that the order was 'inherently unconstitutional'. As a result, on 21 May 2001, the proceedings were adjourned to enable notices under s 78B of the Judiciary Act 1903 (Cth) to be given to the Attorney Generals of the Commonwealth and of the States. By 29 December 2003, the applicants had not sent notices under the Judiciary Act, and the respondent sent them.
On 6 January 2004, the respondent received a letter from Gunning Barristers & Solicitors, who advised they were not and had not ever been instructed by the applicants in this matter.
Between 6 January and 5 May 2004, the DPP received responses to the notices under the Judiciary Act. None of the Attorney Generals proposed to intervene.
The next record on the court file is when the respondent filed a notice of change of address in 2007. The applicants had taken no steps since 2001.
No further steps were taken in the proceedings until 21 May 2014 when the respondent filed a notice of intention to proceed. The respondent then attempted to serve notice of its intention on the applicants.
On 21 May 2014, the respondent sent a copy of the notice to Gunning Barristers and Solicitors, despite that firm's earlier disclaimer of any instructions.
On 5 June 2014, the respondent attempted to serve a copy of the notice on Mr Tee by registered post to an address in West Perth that Mr Tee had given to the police on another occasion and which was recorded as the last known address for his driver's licence. The letter was returned unclaimed on 23 June 2014. A second attempt to serve a copy of the notice at this address in January 2015 was also returned unclaimed (see affidavit of Bruce Wimbridge, an employee in the office of the DPP, sworn 23 March 2015).
On 8 July 2014, Mr Tee was sentenced and convicted in relation to driving offences in the Perth Magistrates Court: affidavit of Mr Blagaich [31]. The address he gave in relation to those matters appears to have been the false address in West Perth.
On 18 August 2014, Detective Stephen Michael Wallace was able to personally serve Mr Tee with a letter and enclosed documents, by which Mr Tee was provided with a copy of the notice of intention to proceed and was asked to provide an address for service: affidavit of Stephen Michael Wallace, sworn 18 August 2014.
On 23 October 2014, the respondent filed a chamber summons for orders dismissing the applicants' objection to confiscation, but has not been able to serve it.
Mr Tee was bailed to appear in the Perth Magistrates Court on 24 February 2015 but did not appear.
Immigration records still show Mr Tee is present in Australia.
Finally, an affidavit of Detective Sergeant Ricky James Hutchinson, made 23 March 2015, sets out a further, fruitless, attempt to serve Mr Tee at another address.
On 26 March, I made orders requiring the respondent to give notice of this application by advertisement in The West Australian newspaper, no earlier than 8 April and no later than 15 April 2015. Although personal service of the application was not required under the rules, I considered that the best attempt should be made to give notice of it. The choice of a published notice was made in the context of the earlier failed attempts to serve Mr Tee at addresses he had given.
The orders for publication of a notice were complied with, and the matter now comes before me for determination.
By s 102 of the Act, proceedings are taken to be civil proceedings 'for all purposes': see Centurion Trust Company Ltd v DPP [2008] WASCA 6; (2008) 35 WAR 463.
In Director of Public Prosecutions for Western Australia v Mansfield [2003] WASC 186 [55] (DPP v Mansfield), Barker J considered whether the inherent power of the court to dismiss an action or other proceeding for want of prosecution could be exercised in proceedings under the Act. While Barker J dismissed the application before him on other grounds, he did not doubt the power of the court to make such an order: see [44].
The power to dismiss for want of prosecution is exercised at the discretion of the court. The power is not to be fettered by any absolute and inflexible rule, and each case must depend on its own facts: Lewandowski v Lovell (1994) 11 WAR 124, 128 (Kennedy JA); DPP v Mansfield [38]. Matters found relevant or determinative in other cases are useful in assisting the court to exercise discretions consistently, but do not detract from the broad discretion and the need to exercise it according to the justice of the case.
In DPP v Mansfield [38], Barker J identified five factors to be considered in dealing with such an application: the length of the delay; the explanation for the delay; the hardship to the plaintiff if the action is dismissed and the cause of action left statute‑barred; the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and the conduct of the defendant in the litigation.
In the present case, I consider the following matters to be of greatest relevance, and to call for an order in the terms sought.
First, there is the length of the delay. It is now more than 14 years since the application was commenced, and just less than 14 years since the applicants last took steps in the proceedings.
Second, the last step which the applicants were to carry out was the preparation and service of notices under the Judiciary Act, and they failed to do it.
Third, the address given by the applicants for service in these proceedings is of a firm which denies it is instructed.
Fourth, the purported constitutional point is without any foundation, being simply a claim that the order is 'inherently unconstitutional'. Since these proceedings began, the constitutional validity of the statute, and counterparts in other jurisdictions, has been considered and confirmed: see, in particular, Attorney-General [NT] v Emmerson [2014] HCA 13.
Fifth, while I must take into account the potential prejudice to the applicants from the dismissal of their application, they have shown no intention to prosecute these proceedings.
Sixth, while the onus of establishing the property is not crime used lies on the applicants, the extent of the delay must prejudice the ability of the respondent to meet any objection to the notice which might now be articulated.
Seventh, there is no indication of any present intent on the part of the applicants to prosecute the objection.
I have taken the inability of the police to serve the applicants, as a result of apparently false addresses being given, into account in the procedural step of going forward on the published notice. I do not regard it as relevant to the decision to dismiss for want of prosecution, other than that the applicants have not provided a valid address for service in the 14 years this action has been on foot.
I allow the application, and order that the applicants' objection to confiscation of frozen property made by notice of originating motion and notice of objection dated 29 March 2001 be dismissed.