Koushappis v The State of Western Australia
[2011] WASCA 245
•8 NOVEMBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KOUSHAPPIS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 245
CORAM: NEWNES JA
HEARD: 7 OCTOBER 2011
DELIVERED : 8 NOVEMBER 2011
FILE NO/S: CACV 46 of 2011
BETWEEN: ANDREW CHRIS KOUSHAPPIS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURRAY J
File No :CIV 1408 of 2003
Catchwords:
Practice and procedure - Application for stay pending outcome of appeal - Criminal Property Confiscation Act 2000 (WA) - Grounds for stay not made out
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 30
Supreme Court (Court of Appeal) Rules 2005 (WA), r 3, r 43(2)(h)
Result:
Application for stay dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr M Seaman
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Smolarek v McMaster [2006] WASCA 216
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 11] [2011] WASC 74
NEWNES JA: On 25 November 2010, Murray J dismissed the appellant's objection to the confiscation of his property under the Criminal Property Confiscation Act 2000 (WA) (the CPC Act) and made a declaration that the appellant's property has been confiscated to the respondent, pursuant to s 30 of the CPC Act. The appellant (who is self‑represented) filed an appeal notice on 15 April 2011.
On 6 September 2011, the appellant applied for a stay of the enforcement of the declaration pending the resolution of the appeal.
Background
In March 2003, the appellant was charged with drug offences which could lead to him being declared a drug trafficker. On 6 March 2003, he was served with freezing notices in respect of certain property owned by him, pursuant to s 34(3) of the CPC Act. Under s 7 of the CPC Act, property that is the subject of a freezing notice is confiscated unless an objection is filed in the court within 28 days after service of the freezing notice.
The appellant filed an objection to the confiscation of the property and commenced proceedings by originating summons for an order that the property not be confiscated. The appellant filed further objections thereafter as further freezing notices were issued in respect of additional property, and amended the proceedings accordingly.
On 20 April 2005, the appellant was convicted of drug offences and, on 21 April 2005, he was declared a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA). As a result of that declaration, the appellant's property was confiscated to the respondent pursuant to s 8 of the CPC Act. That provision is (relevantly) as follows:
(1)When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated -
(a)all the property that the person owns or effectively controls at the time the declaration is made;
(b)all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act.
On 7 November 2007, the Director of Public Prosecutions applied for an order that the appellant's objection dated 22 May 2003 be dismissed and for a declaration, pursuant to s 30 of the CPC Act, that the appellant's property had been confiscated under s 8(1) of the CPC Act. Section 30 is as follows:
(1)The DPP may apply to the court for a declaration that property has been confiscated.
(2)On considering an application, if the court finds that the property described in the application has been confiscated under section 6, 7 or 8, the court must make a declaration to that effect.
The appellant's appeal to the Court of Appeal against his conviction was dismissed. On 21 October 2010, the appellant's application to the High Court for special leave to appeal was also dismissed.
On 25 November 2010, Murray J dismissed the appellant's objection of 22 May 2005, and made a declaration of confiscation in relation to the appellant's property. The orders made by Murray J were (relevantly) as follows:
IT IS DECLARED AND ORDERED THAT:
1.The [appellant's] Objection to the confiscation of frozen property made by Amended Originating Summons dated 21 May 2003 [sic, 22 May 2003] be dismissed.
2.All the property that [the appellant] owned or effectively controlled at the time he was declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 on 8 August 2005 [sic, 21 April 2005] and all property that [the appellant] gave away at any time before the drug trafficker declaration was made, save and except for the property referred to in paragraph 3 hereof, has been confiscated to the State of Western Australia, including [details of property].
3.…
The property which was the subject of the order included a number of shares, some cash, a trailer, a property at 15 Gilberton Street, Kalgoorlie, and three motor vehicles - one 1998 Holden Commodore utility, one 2002 Ford XR6 sedan and one 2002 Ford Fairmont sedan.
On 1 March 2011, the appellant's sister was contacted by the Public Trustee and told to put in an offer if the family was interested in purchasing the three motor vehicles. The appellant then sent a letter to the Public Trustee dated 11 March 2011 in which he said that he would like to purchase the vehicles himself. The letter included the appellant's own valuation of each vehicle. Those valuations were: 1998 Holden Commodore - $50, 2002 Ford XR6 - $100 and 2002 Ford Fairmont - $100.
On 15 April 2011, the appellant lodged the current appeal against the declaration of confiscation made by the primary judge.
On 11 May 2011, the appellant received a letter from the Public Trustee referring to the appellant's request to purchase the vehicles, and stating that a written valuation from a local licensed trader had to be provided.
A valuation was carried out by Stephen Gibson of Kalgoorlie Auto Sales on 23 May 2011. The value ascribed to the vehicles in that valuation was as follows: 1998 Holden Commodore - $500, 2002 Ford XR6 - $500, 2002 Ford Fairmont - $2,500.
On 13 June 2011, the DPP wrote to the appellant stating that steps would be taken to recover the property the subject of the order of the primary judge as no stay application had been made. I note that the appellant says he did not receive this letter. Some time then elapsed until, on 5 September 2011, two of the three confiscated vehicles were removed by the respondent from the house of the appellant's daughter where they had been parked. The appellant filed his application for a stay the following day.
On the hearing of this application, counsel for the respondent said that the respondent had decided that all three motor vehicles would be sold by public auction and the respondent did not intend to pursue negotiations with the appellant or his family for their purchase.
The application
The appellant's application dated 6 September 2011 is in the following terms:
The appellant applies for a stay of the first declaration made by Justice Murray on the 25th of November 2010, until the matter is resolved by the court.
Disposition of the application
It is not entirely clear from the application whether the appellant seeks a stay of the order dismissing his objection of 22 May 2003 to the confiscation of the property, or a stay of the declaration pursuant to s 30 of the CPC Act that his property be confiscated. The power of the court to order an effective stay in either case was not raised on the hearing of the application and was apparently assumed by the parties. In light of the decision I have reached, I do not think it is necessary to canvass the issue.
I would simply note in passing that the power of a single judge under r 43(2)(h) of the Supreme Court (Court of Appeal) Rules 2005 (WA) to make an 'interim order' includes the power to make an order staying the execution of the primary court's decision (see r 3(1)). Such a power is, in any event, in my opinion incidental and necessary to the exercise of the express jurisdiction of the court. While it appears doubtful that a declaratory order can be stayed (see Smolarek v McMaster [2006] WASCA 216 [26] ‑ [27]), the power of the court would appear to extend, in an appropriate case, to an order staying the enforcement of the rights which have been declared to exist: see Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342, 347; Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 11] [2011] WASC 74 [84].
The general principles which apply to an application for a stay are not materially different to those which apply to an application for a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA): see Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 [3]; Smolarek v McMaster [33]. Those principles were summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308. In substance, an applicant for a stay must establish that there are special circumstances which justify a stay. Ordinarily the applicant will be required to show that the grant of a stay is necessary to preserve the subject matter or the integrity of the litigation, or that refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. But a stay may still be refused unless it appears that the appeal has reasonable prospects of success, and even then it may be refused if the balance of convenience does not lie in favour of the applicant, such as where a stay would cause irremediable hardship to the respondent.
While those principles provide guidance in the exercise of the discretion, they are not inflexible or exhaustive, and at all times the ultimate question must be whether there are special circumstances which justify a stay.
The focus on the hearing of the application was on the three motor vehicles. The respondent made it clear from the outset that it does not oppose the stay in relation to the house. The balance of the property was not mentioned by the appellant in his affidavit in support of the application or his oral submissions. I take it that he does not press the application beyond the three motor vehicles.
The respondent opposed a stay in relation to the motor vehicles. It submitted, in effect, that no special circumstances had been demonstrated which would justify a stay. The respondent said that the motor vehicles were readily replaceable and, given their modest value, the cost of keeping them in storage would quickly outstrip their value. It wished to sell the vehicles and intended to retain the proceeds of sale in an interest‑bearing account pending the outcome of the appeal. The respondent also submitted that the appeal has no prospect of success.
The appellant emphasised that he was particularly concerned that the 2002 Ford XR6 not be sold by the respondent. He said that was because he requires the vehicle to be examined for the purpose of obtaining additional evidence for an appeal against a drug conviction. The appeal referred to by the appellant apparently relates to his conviction in April 2011 of possession of drugs which had been found in his car, the Ford XR6, by police on 23 January 2010.
I am not persuaded that the grounds for a stay in relation to the vehicles have been made out. No special circumstances have been shown by the appellant which would justify a stay of the enforcement of the respondent's rights under the orders of the primary judge. The appellant's contention that he requires the Ford XR6 for forensic examination for an appeal carries no significant weight. Any appeal was required to be instituted within 21 days of the conviction. No appeal has been commenced and any appeal is now well out of time. The appellant has had ample time to arrange for any examination of the vehicle to be carried out. In any event, any difficulty in that regard can be overcome by an order that the respondent do not sell the vehicle for a further period of 28 days.
No other reason has been put forward by the appellant. It is not suggested that the vehicles have any special qualities or that they have any value to the appellant beyond their ordinary market value. If a stay is not granted the vehicles are to be sold at auction and there is no reason to believe they will not be sold for their market value. If the appeal were to be successful, the appellant would be able to purchase comparable vehicles with the proceeds of sale. It has not been suggested otherwise. This is not a case where the respondent should be put to the costs of storage charges for motor vehicles of quite modest value over what is likely to be a significant period of time.
That is sufficient to dispose of the application. I would only add that, having regard to the material before me and to the terms of the relevant legislation, I am also not satisfied that the appellant has reasonable prospects of success on the appeal, but it is unnecessary to canvass that issue.
Conclusion
I would:
1.grant a stay of enforcement of the order of Murray J in relation to the property at 15 Gilberton Street, Kalgoorlie until further order;
2.order that the respondent do not sell or otherwise dispose of the Ford XR6 sedan for a period of 28 days from the date of this order; and
3.otherwise dismiss the application.
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