Flett v Director of Public Prosecutions for Western Australia - [2009] WASC 153

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FLETT -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2009] WASC 153

CORAM: TEMPLEMAN J

HEARD: 6 MAY 2009

DELIVERED : 6 MAY 2009

PUBLISHED : 2 JUNE 2009

FILE NO/S: CPCA 169 of 2008

BETWEEN: KINGSLEY DAVID FLETT
Applicant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

Catchwords:

Proceeds of crime - Examination and freezing orders granted ex parte - Application for disclosure of evidence which led to the orders being granted - Possibility of disclosure offending secrecy provisions and inhibiting examination - Requirements of natural justice - Resolving impasse by allowing inspection of court file by solicitor

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 70

Result:

Application granted

Category: A

Representation:

Counsel:

Applicant: Mr C F Chenu
Respondent: Ms F A Humphries

Solicitors:

Applicant: Lavan Legal
Respondent: Director of Public Prosecutions (WA)

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

Agriculture.com Pty Ltd (In liq); Application of Sherman [2001] NSWSC 628
Bennett & Co (a firm) v Director of Public Prosecutions (WA) (2005) 31 WAR 212
Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1
Cowan v Stanhill Estates Pty Ltd [1966] VR 604

TEMPLEMAN J: This is an application by Kingsley David Flett in which he seeks service on him by the Director of Public Prosecutions (DPP), of copies of certain documents which were filed in the court by the DPP for the purpose of obtaining examination orders and freezing orders against Mr Flett and one David Francis Everett.
The DPP applied to Murray J on 23 December 2008, by an ex parte notice of originating motion, for the examination order and the freezing order. A freezing order was sought on the basis that an examination order had been made, so the only matter now in issue is the basis on which the examination order was made. Mr Flett has applied to have that order set aside: and it is pursuant to that application that he seeks disclosure of the documents on which the application was made.
The ex parte application to Murray J was supported by two affidavits and some submissions. The proceedings were not recorded. There is no transcript of the application and Murray J apparently gave no formal reasons: at least, none which have been published. Mr Flett does not therefore know, or did not know initially, on what basis the orders were made.
After Mr Flett made his application for the documents, the DPP provided him with a copy of the examination order, a copy of the ex parte originating motion, an edited copy of one of the affidavits filed in support of the application and an edited copy of the submissions. The second affidavit has not been provided.
The basis for the DPP's position is first, that if the material was to be provided in its entirety, there would be a breach of s 70 of the Criminal Property Confiscation Act 2000 (WA): and secondly, that the examination would be frustrated if Mr Flett was to be given all of the material. The DPP considers that might disclose the investigations which have been carried out so far: and it might disclose the nature of the questions which Mr Flett is likely to be asked in the examination. The DPP relies on a passage in the judgment of Palmer J in Agriculture.com Pty Ltd (In liq); Application of Sherman [2001] NSWSC 628. Palmer J said:
In some cases it may be conducive to the search for truth that the examinee and his or her advisers are not provided in advance with the documentary material to be examined upon. In other cases, the process may be aided by enabling the examinee to refresh recollection of long past transactions by a prior study of contemporaneous documents. Which course is adopted is very much a matter for the discretion of the examiner in each case [19].
I accept that proposition: and I accept that if the DPP does not wish to provide Mr Flett with advance notice of any questions that he is likely to be asked, that is entirely a matter for the DPP.
The difficulty arises from the fact that there is a tension between, on the one hand, the DPP's desire not to disclose material which would result in contravention of s 70 or which might alert Mr Flett to the questions he is going to be asked; and on the other hand, the requirements of natural justice.
In relation to natural justice, it seems to me entirely abhorrent that, unless there is clear legislative intent, a person against whom an order has been made by the court should not be permitted to see all of the material on which reliance was placed.
That is particularly so in the present case, when it is not known which evidence or which parts of the evidence before Murray J persuaded his Honour to make the orders he did. I cannot rule out the possibility that it might have included the evidence which the DPP wishes to withhold from Mr Flett.
It seems to me that there is a way of resolving the issue. But before dealing with that, I should refer to the decision of the Full Court, in Bennett & Co (a firm) v Director of Public Prosecutions (WA) (2005) 31 WAR 212. That was a case in which material which had been used to obtain an injunction against the appellant had inadvertently been disclosed to Bennett & Co in circumstances in which the DPP sought to edit out certain parts of the evidence on the basis that its disclosure would result in the contravention of s 70.
The issue in that case is different from the issue here. As the court said:
The only question in this appeal is whether the solicitors should be restrained from acting on the basis that the affidavit should not have been disclosed to them [65].
The court then said:
Because of the very general way in which the argument proceeded in this case, and the breadth of the interpretation of s 70 contended for by the respondent, it was not necessary for the court to determine the way in which s 70 might operate in relation to the particular circumstances of this affidavit. However, it appears to us that there may well be some material in the affidavit disclosure of which would be contrary to s 70. That is particularly so, since it appeared clear from the submissions on behalf of the respondent that it was never contemplated that the DPP would be required to disclose any portion of the affidavit to any person, and so the affidavit was, no doubt, drafted without any specific reference to s 70. However, even if that is so, it does not require that the entirety of the affidavit be withheld from Centurion or from its solicitors. Rather, it would be a reason for portions of the affidavit to be excised, so that the DPP could serve an edited copy upon Centurion's solicitors without contravening s 70 [78].
I pause to note that although in 2005 it might not have been contemplated by the DPP that he would be required to disclose any portion of an affidavit of this kind, that might well not be the position as at the end of 2008. If therefore, the DPP chose to include material which, if disclosed, might contravene s 70 then I think he did so at his own risk; namely, the risk that in the interests of natural justice some way might be found, without contravening s 70, to enable the person against whom the order was made in reliance on the evidence to challenge the making of the order.
Although the Full Court referred to the DPP serving an edited copy, it seems to me, with respect, that in the ordinary case there is a difficulty in that course. The difficulty is that the person against whom the order was made, would not know whether the DPP had made a proper judgment in excising the material which he was not shown. That would not have been a problem in the Bennett & Co case, because the solicitors had already seen the document and would therefore be able to form a view as to the propriety of the judgment made by the DPP in relation to the editing. In the present case that is not so. Mr Flett and his solicitors do not know what has been edited out and are therefore unable to form a view whether that has been done properly.
The way round this impasse in the first instance, at least, seems to me to permit Mr Flett's solicitor to inspect the Court file. I do not think that such a course would contravene the prohibition against the disclosure by 'a person' of restricted information, contained in s 70 of the Act. It is, I think, sufficiently well settled that the Court is not a person. There is a decision of Dixon CJ sitting alone in Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 in which his Honour said, at page 6, that courts could hardly be called persons. That decision has been followed on a number of occasions; in particular, by Pape J in Cowan v Stanhill Estates Pty Ltd [1966] VR 604. The statutory provisions in those cases are of course quite different from the present provisions. But the validity of the proposition that the court could not properly be described as a person is not, I think, affected by the difference in the statutory provisions.
Section 72 of the Act provides that a person is not required to make a restricted disclosure to any court for any purpose. I emphasise 'required' because in the present case the DPP chose to make that restricted disclosure in his application to Murray J. The material in question is now on the court file. And in my view, there can be no objection to the court permitting Mr Flett's solicitor to inspect the file. That would not contravene s 70 because the court is not a person.
I therefore propose to make an order which permits Mr Chenu in person, he being a member of the firm of solicitors acting for Mr Flett, to inspect the court file on Mr Chenu's undertaking not to disclose to any other person (which of course includes Mr Flett) the material on the file insofar as that material has been edited out of the documents which have been provided to Mr Flett thus far: and not to disclose any material in the affidavit which has not so far been provided to him.
The purpose of making an order in these terms is to allow Mr Chenu to form a view about the propriety of editing out the excluded matter. That is to say, if Mr Chenu concludes that the material has been properly edited out, then that will be the end of the matter. If Mr Chenu wishes to take advice, for example, from senior counsel, then he would need to come back to the court and obtain a variation of the undertaking. I expect that the proposed senior counsel would have to give a similar undertaking.
If Mr Chenu came to the view that the material had not been properly edited out and that it was necessary to refer to it in the context of an appeal against the orders made by Murray J, or in an application to set aside the orders, then he would have to make an application to the court and that application would have to be dealt with on its merits. However, I hope I have said sufficient to enable an order to be made which satisfies the requirements of natural justice, while not prejudicing the DPP's position.
Ms Humphries for the DPP says that even an order in the terms I propose would cause her concern. I do not share that concern because I have no doubt that Mr Chenu having given the undertaking, would abide by it completely and to the letter.