Koushappis v The State of Western Australia - [2015] WASC 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KOUSHAPPIS -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 64

CORAM: JENKINS J

HEARD: 14 AUGUST & 10 SEPTEMBER 2014

DELIVERED : 23 FEBRUARY 2015

FILE NO/S: CIV 1408 of 2003

BETWEEN: ANDREW CHRIS KOUSHAPPIS
First Plaintiff
ELENI CARMEN LE BRUN
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal property confiscation - Application to set aside order dismissing objection to confiscation and declaration of confiscation - Application out of time - Applicant not advised of hearing date - Merits of the objection and defence to application for confiscation

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 7, s 8, s 9, s 30, s 34, s 50, s 81, s 82, s 83, s 84, s 91, s 113
Misuse of Drugs Act 1981 (WA), s 6, s 32A
Property Law Act 1969 (WA), s 34
Rules of the Supreme Court 1971 (WA), O 21 r 10, O 34 r 3
Stamp Act 1921 (WA), s 17C, s 27

Result:

Extension of time granted
Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff                  :     In person
Second Plaintiff             :     In person
Defendant:     Mr M Seaman & Mr G T Farley

Solicitors:

First Plaintiff                  :     In person
Second Plaintiff             :     In person
Defendant:     Director of Public Prosecutions (WA)

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

Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589
Johnson & Co v Clifford (1905) 7 WALR 240
Koushappis v The Queen (Unreported, WASCA, Library No 950729, 6 December 1995)
Koushappis v The Queen [2003] WASCA 146
Koushappis v The State of Western Australia [No 2] [2012] WASCA 194
Marist Brothers Community Inc v The Shire of Harvey (Unreported, WASC, Library No 940667, 1 December 1994); (1994) 14 WAR 69
Palmer v Prince [1980] WAR 61
Smith v The State of Western Australia [2009] WASC 189
Starr v Koushappis (Unreported, WASC, Library No 980574, 2 October 1998)
Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239
Willis v The State of Western Australia [No 3] [2010] WASCA 56

JENKINS J: On 25 November 2010, Murray J dismissed Andrew Koushappis' objection to the confiscation of his property and made a declaration of confiscation in respect to the property of Mr Koushappis, under the Criminal Property Confiscation Act 2000 (WA) (the Act) s 30.
On 6 August 2012, the Court of Appeal dismissed Mr Koushappis' appeal against Murray J's orders.
On 25 September 2012, McKechnie J granted Mr Koushappis leave to bring an oral application to set aside Murray J's orders.
These are my reasons for dismissing Mr Koushappis' oral application to set aside Murray J's orders.

Background

On 12 March 2003, Mr Koushappis was charged with offences under the Misuse of Drugs Act 1981 (WA) (the MD Act) that might give rise to his being declared a drug trafficker. After Mr Koushappis was charged, he was served with freezing notices (FNs) issued pursuant to the Act pt 4 div 2.
The property frozen under the FNs included a residential property at 15 Gilberton Street, Kalgoorlie (the Property). Mr Koushappis was the sole registered proprietor of the Property.
AISFN 030009 was issued by a magistrate on 6 March 2003. It related to a number of items of property and identified different bases for the freezing of different items. It stated that the Property was frozen on the basis that Mr Koushappis had been charged with an offence and the Property was owned and/or effectively controlled and/or had been given away at any time by him. The Act s 34(3) permits a FN to be issued on this ground. Other items of property were frozen on the basis that they were crime used and crime derived.
On 17 April 2003, AISFN 030019 was issued by a magistrate on the basis that Mr Koushappis had been charged with an offence and each item of property listed in the FN was owned and/or effectively controlled and/or had been given away at any time by Mr Koushappis. The items of property included in this FN included all or any property that was owned and/or effectively controlled by Mr Koushappis. Presumably, it therefore included the Property. These FNs were filed in the Supreme Court, as required by the Act.
AISFN 030009 was served on Ms Sandra Starr, Mr Koushappis' former defacto partner. It is not clear when it was served on Mr Koushappis but AISFN 030019 was served on Mr Koushappis on 24 April 2003.
Neither Mr Koushappis nor Ms Starr served statutory declarations on the police in respect of the 2003 FNs.
By originating summons filed 8 April 2003, Mr Koushappis objected to the confiscation of property, including the Property, the subject of AISFN 030009 (CIV 1408 of 2003). He also filed a notice of objection in CIV 1408 of 2003.
On 24 April 2003, Barker J made consent orders which appointed Mr Koushappis to control and manage, pursuant to the Act s 91(2)(a) various items of property, including the Property, whilst AISFN 030009 was in force. CIV 1408 of 2003 was otherwise adjourned sine die.
On 27 May 2003, consent orders were made giving Mr Koushappis leave to amend his originating summons and objection to include an objection to the confiscation of property the subject of AISFN 030019. The date of the objection in relation to that FN was deemed to be 22 May 2003, presumably so as to bring the objection within time. CIV 1408 of 2003 was otherwise adjourned sine die.
The 2003 FNs were cancelled on 31 December 2004 because the charges laid against Mr Koushappis on 12 March 2003 were discontinued on 16 December 2004.
On 31 December 2004, new FNs were issued as a result of substitute charges being laid against Mr Koushappis. AISFN 040098 replicated AISFN 030019 and AISFN 040099 replicated AISFN 030009, except that $6,000 cash which had been frozen initially on the basis that it was crime used, crime derived and was owned and/or effectively controlled and/or effectively had been given away at any time by Mr Koushappis, was in the latter FN only frozen on the last basis. It was also nominated as having been removed from Mr Koushappis on 28 February 2003 from 230, 112 Melville Parade, Como. There is no evidence before me that the 2004 FNs were served on any person, although it is obvious from later events that Mr Koushappis knew they had been issued.
Mr Koushappis says that there was a period between 16 and 31 December 2004 when he was not charged with a confiscation offence and therefore his property should have been returned to him. This application does not turn on that point.
On 7 February 2005, consent orders were made giving Mr Koushappis leave to amend his originating summons and objection to include an objection to the confiscation of property the subject of AISFN 040099. The date of the originating summons and objection was deemed to be 4 February 2005. Again, this was presumably to ensure that the objection was made within time. CIV 1408 of 2003 was otherwise adjourned sine die. On 10 February 2005, Mr Koushappis' then lawyer filed an unsigned amended originating summons and objection, which reflected those orders.
On 21 April 2005, Mr Koushappis was convicted in the District Court of charges laid on 31 December 2004, being one count of possession of MDMA with intent to sell or supply it to another, one count of possession of methylamphetamine with intent to sell or supply it to another and one count of possession of heroin with intent to sell or supply it to another. Each offence was contrary to the MD Act s 6(1)(a) (the 2005 convictions).
On 8 August 2005, Mr Koushappis was declared a drug trafficker.
By the Act s 8(1), upon Mr Koushappis being declared a drug trafficker, the following property was confiscated:
(1)all the property that Mr Koushappis owned or effectively controlled at the time the declaration was made; and
(2)all the property that Mr Koushappis had given away at any time before the declaration was made, whether the gift was made before or after the commencement of the Act.
Pursuant to the Act s 9, the Property, because it is registrable real property, would only vest absolutely in the State when the court declared, pursuant to the Act s 30, that it had been confiscated and a memorial of the making of the declaration of confiscation was registered.
On 7 November 2007, in CIV 1408 of 2003 the State filed a summons for an order that Mr Koushappis' objection be dismissed and for a declaration pursuant to the Act s 30 that all property that Mr Koushappis owned or effectively controlled at the time he was declared to be a drug trafficker and all property that Mr Koushappis had given away at any time before the drug trafficker declaration was made, except for some particular items of property, had been confiscated to the State of Western Australia (the State's summons). The State's summons listed a number of items of property which the State applied to have included in the declaration of confiscation. The list included the Property. The State's summons was served on Mr Koushappis and Sandra Starr, amongst others.
On 24 September 2009, consent orders were made which joined Mr Koushappis' sister, Eleni Carmen Le Brun as a party to CIV 1408 of 2003. It was ordered that she be named as the second applicant/objector. Orders were made programming CIV 1408 of 2003 to a hearing, however these orders were varied by consent on later dates, so as to extend time and to defer the hearing.
On 26 March 2010, Mazza J (as he then was) dismissed Ms Le Brun's objection. The transcript of proceedings that day discloses that Ms Le Brun's counsel told Mazza J that Ms Le Brun withdrew her objection. At the same hearing Mr Koushappis' counsel requested an adjournment for a month so that Mr Koushappis could have further time to lodge an appeal against the order that he be declared a drug trafficker. His counsel said:
If we don't lodge the appeal or seek leave to lodge the appeal, then the DPP just make their orders in a month. If we have done it and we can provide this court with evidence of that, then we just wait and see what the outcome of the appeal is (ts 10).
On 23 April 2010, Mr Koushappis' then lawyer requested an adjournment of the next hearing date on the basis that Mr Koushappis had lodged, that day, an application for special leave to appeal the 2005 convictions with the High Court.
On 21 October 2010, the High Court dismissed Mr Koushappis' application for special leave to appeal the 2005 convictions.
Mr Koushappis' objection and the State's summons were listed for hearing before Murray J on 25 November 2010. The respondent appeared by counsel. Mr Koushappis did not appear by counsel or in person. After confirming that the lawyers on the record for Mr Koushappis had been advised of the listing, Murray J permitted the State to proceed. Without any discussion of the merits, shortly afterwards, Murray J made the following orders:
1.[Mr Koushappis'] Objection to the confiscation of frozen property made by Amended Originating Summons dated 21 May 2003 be dismissed.
2.All the property that [Mr Koushappis] 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 March 2005 and all property that [Mr Koushappis] 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:
(a)All shares in Metex Resources Limited ('METEX') held in the name of [Mr Koushappis], the subject of Freezing Notice AISFN040098;
(b)All options in METEX held in the name of [Mr Koushappis], the subject of Freezing Notice AISFN040098;
(c)All shares in North Australian Diamonds Limited held in the name of [Mr Koushappis], formerly known as Striker Resources NL, the subject of Freezing Notice AISFN040098;
(d)All shares held in Heron Resources Limited held in the name of [Mr Koushappis], the subject of Freezing Notice AISFN040098;
(e)All shares in Tectonic Resources NL held in the name of [Mr Koushappis], the subject of Freezing Notice AISFN040098;
(f)The land at Lot 3206 on Plan 205281 in certificate of title Volume 1861, folio 835, commonly known as 15 Gilberton Street, Kalgoorlie, the subject of Freezing Notice AISFN040099;
(g)AUD $6000.00 cash seized from [Mr Koushappis] at the time of his arrest on 28 February 2003, the subject of Freezing Notice AISFN040099;
(h)Money standing to the credit of [Mr Koushappis] in United Credit Union account number 35656 and any and all interest payable thereon, the subject of Freezing Notice AISFN040099;
(i)2002 Ford Falcon sedan, registered number KBC9007, previously registered as 1BHR229, engine number JGSW2Y38877, chassis number 6FPAAAJGSW2Y38877, the subject of Freezing Notice AISFN040099 ('the 2002 Ford Falcon');
(j)2002 Ford Fairmont sedan registered number 1BHR303, engine number JGSW2S43955, chassis number 6FPAAAJGSW2S43955, the subject of Freezing Notice AISFN040099 ('the 2002 Ford Fairmont');
(k)1998 Holden Commodore utility, registered number 1BPB450, previously registered as 1AFC025, engine number VH766135, chassis number 6H8VSK80HWL329962, the subject of Freezing Notice AISFN040099 ('the 1998 Holden Commodore'); and
(l)1996 custom made Boxtop trailer, registered number 8WZ117, chassis number 6J9T20000T1541001 ('the 1996 Trailer').
On 15 April 2011, Mr Koushappis made an application to the Court of Appeal for an extension of time to appeal against the making of the declaration of confiscation. The appeal was heard on 24 May 2012 and 6 August 2012. The Court of Appeal found that Mr Koushappis had explained satisfactorily the delay in filing his appeal notice [3]. At the conclusion of the hearing, the Court of Appeal ordered that an extension of time to appeal be granted but that the appeal be dismissed.
On 8 October 2012, the Court of Appeal published its reasons: Koushappis v The State of Western Australia [No 2] [2012] WASCA 194. The reasons do not disclose that Mr Koushappis had sought leave to appeal from the order dismissing his objection. Buss JA (Pullin and Newnes JA agreeing) only referred specifically to ground of appeal 5, which read:
A miscarriage of justice occurred when Justice Murray made the order in the [absence] of my [legal representatives] [and] myself ... [19].
Buss JA noted that in Mr Koushappis' affidavit sworn 5 April 2011, he deposed, relevantly:
(a)His lawyer failed to appear before [Murray J] on 25 November 2010.
(b)[Mr Koushappis] did not ascertain until February 2011 that an order had been made for the confiscation of his property.
(c)[Mr Koushappis] did not know what had happened on 25 November 2010 until he appeared before EM Heenan J on 10 March 2011. On that occasion his Honour informed him that no‑one had appeared for him on 25 November 2010 and that orders were made in the absence of his lawyer [20].
Buss JA found that neither ground 5 nor any of the other grounds of appeal, which were predicated on Murray J's orders being set aside or that required findings of fact to be made, could be established on the material before the Court of Appeal. His Honour said that in deciding whether Murray J's orders should be set aside on the grounds that they were made in the absence of Mr Koushappis or his lawyer, it would be necessary to make findings of fact in relation to the reasons for their non‑appearance. His Honour said that depending on the findings of fact, it might also be necessary to decide whether Mr Koushappis' objection to the confiscation of any of the frozen property had a reasonable prospect of success. His Honour referred to the Rules of the Supreme Court 1971 (WA) (SCR) O 34 r 3, the commentary in the Civil Procedure Western Australia [34.3.1] and the cases there cited.
On 25 September 2012, prior to the Court of Appeal delivering its reasons, McKechnie J accepted an oral application by Mr Koushappis as an application to set aside the orders of Murray J. There was then further delay, whilst Mr Koushappis attempted, unsuccessfully, to obtain legal aid, before Mr Koushappis' oral application to have Murray J's orders set aside came on for hearing before me.

Rules of the Supreme Court 1971 (WA) O 34 r 3

Rules of the Supreme Court 1971 (WA) O34 r 3 provides that:
Any judgment, order, or verdict obtained where one party does not appear at the trial may be set aside by the Court upon such terms as the Court thinks just upon application made within 14 days after the trial.

Extension of time

Mr Koushappis is well out of time for making his application to set aside Murray J's orders. The fact that Mr Koushappis required an extension of time within which to bring his application does not seem to have received any consideration when McKechnie J granted Mr Koushappis leave to bring this application and nor did it receive consideration at the hearing before me. However, the order made by McKechnie J on 25 September 2012 can be read as implying that Mr Koushappis was granted an extension of time within which to bring the application. I also note that Buss JA said that Mr Koushappis had satisfactorily explained the delay in filing his appeal notice and the court of appeal granted an extension of time within which to appeal. It was as a result of what was said in the appeal that Mr Koushappis brought this application.
As a consequence of the history of this matter and in fairness to Mr Koushappis I will grant an extension of time within which to bring this application.

Hearing in absence of Mr Koushappis

I have a discretion as to whether I will, in the circumstances of this case, grant Mr Koushappis' application: Johnson & Co v Clifford (1905) 7 WALR 240.
There is authority for the proposition that if a party has had judgment entered against them in an action which was heard without notice to them then they have a right to have the judgment set aside and the matter reheard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589 (Rich J).
In this case, Mr Koushappis has not adduced any evidence from his then lawyer to the effect that she was not advised of the hearing date. Rather, in his affidavit made on 22 August 2013 Mr Koushappis deposed that he told his then lawyer that a sister and his former wife and another person had an interest in the Property listed in AISFN 030009 when he provided the FN to his lawyer in March 2003. He said that at no time did his lawyer inform him that CIV 1408 of 2003 was listed for a hearing on 25 November 2010. Further, he said that at no time did she inform him that she was no longer representing him. He said that he did not know that his property had been confiscated until the Public Trustees office contacted him on 15 February 2011. This account is not challenged by the State.
There is a letter on the court file dated 2 November 2010 which is addressed to the State with a copy to Mr Koushappis' then lawyer. It advised that CIV 1408 of 2003 had been listed for hearing on 25 November 2010 at 10.30 am. There is a handwritten note on it to say that it was posted on 3 November 2010.
Taking these matters into account, I am of the view that I should determine this application on the basis that Mr Koushappis has not satisfied me that his then lawyer was not advised of the hearing but that he has satisfied me that his then lawyer did not advise him of the hearing date and did not advise him that she would not attend the hearing on his behalf.
The State says that, given the history of this matter, those facts do not mean the court should look favourably on Mr Koushappis' present application. It says that despite Mr Koushappis' originating summons and objection having been filed over seven years earlier, he had not filed any affidavits in support of his originating summons and objection and neither had he sought to have them heard and determined.

Further, once Mr Koushappis was declared to be a drug trafficker on 21 April 2005, his Property was statutorily confiscated and there was no point in the objection to the FN being heard. The State says that the non‑appearance of Mr Koushappis' then lawyer at the hearing on 25 November 2010 was recognition of that fact.
In any event, the FN stopped being in force in respect of the Property when the respondent registered a memorial with the Registrar of Titles after the Property was confiscated under the Act s 8. Although neither the memorial nor a certificate of title for the Property with the memorial endorsed on it is in evidence, it is not in dispute between the parties that such a memorial has been registered.[1]
[1] Willis v The State of Western Australia [No 3] [2010] WASCA 56 [84]. Similarly, in this application the State should have proved registration of the memorial.
The State submits that once Mr Koushappis was declared to be a drug trafficker the only way Mr Koushappis could avoid the Property being vested absolutely in the State was to defend the State's application for a declaration of confiscation, which specifically included the Property in it.
In this regard, the State says that Mr Koushappis had not filed any affidavits in response to the State's summons which might have indicated that he had a meritorious defence. Rather, on 26 August 2009, Mr Koushappis' then lawyer sent a facsimile to the court which said that she had only received Mr Koushappis' further instructions on that date. She enclosed a facsimile copy of an affidavit which she said she sought to be filed on an urgent basis. The affidavit was that of Mr Koushappis' sister, Eleni Le Brun. She deposed that she believed that she had an equitable interest in the Property because of the money she had lent Mr Koushappis and the agreement she had with him that she would be repaid from the proceeds of the sale of the Property.
It was on the basis of this unfiled affidavit that Ms Le Brun was made an objector and party to CIV 1408 of 2003. When Ms Le Brun withdrew her objection to confiscation, the State says that it and the court were entitled to assume that the factual assertions in Ms Le Brun's unfiled affidavit were no longer being relied upon by Ms Le Brun or by Mr Koushappis.
There was no material in Ms Le Brun's unfiled affidavit to support Mr Koushappis' current submission that he had transferred half of the Property, for value, to Ms Starr in November 2002.
The State also relies on the fact that in April 2010 Mr Koushappis' counsel requested an adjournment of CIV 1408 of 2003 on the basis that Mr Koushappis had lodged an appeal and not for any other reason. His counsel's submissions to the court clearly indicated that if the appeal was not lodged, Mr Koushappis would have no defence to the State's summons.
Further, the State says that there would be prejudice to it if the court set aside Murray J's orders because it would have to reverse the transactions which led to the vesting of the Property in it. It says that this should not occur because, in its submission, the confiscation of the Property is inevitable and any reversed transactions would simply have to be replaced once its application for a declaration of confiscation was reheard and determined.
As a result of all the above factors, I am of the view that Mr Koushappis is not entitled as of right to have Murray J's orders set aside. He must show that there would be some useful purpose served by setting aside the judgment by showing that he has a defence on the merits to the State's application for a declaration of confiscation: Palmer v Prince [1980] WAR 61.
Sir Frederick Jordan's comment in Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239, 243 ‑ 244 is applicable to this case. His Honour said that the question is whether, upon the material before the court, there is a real likelihood that it would be unjust to the applicant to allow the orders to stand. If so they ought to be set aside on such terms as will minimise the possibility of injustice to the other party.
The material before me comprises oral, as well as affidavit, evidence. Consequently, I have more evidence than a judge would often have when deciding an application to set aside orders of the court. This evidence enables me to give more in‑depth consideration to the grounds relied upon by Mr Koushappis. Further, I have heard full submissions on Mr Koushappis' grounds which allege that as a matter of law the State's summons should not succeed. Thus, I am also in a position to analyse those grounds in detail.

Mr Koushappis' grounds for setting aside Murray J's orders

Mr Koushappis complains that Murray J's orders constitute a miscarriage of justice for the following reasons which he says go to the merits of his objection and the State's application for a declaration of confiscation:
(1)The declaration that he be declared a drug trafficker was not made in accordance with the MD Act s 32A(1);
(2)The declaration of confiscation was not made in accordance with the CPC Act s 8;
(3)He did not commit the offences which are the subject of the 2000 convictions;
(4)Murray J erred in law by making the declaration of confiscation when his notice of objection and amended originating summons were still to be determined; and
(5)Ms Le Brun and Ms Starr each have an interest in the Property; and
(6)The confiscated cars were not transferred into his name when the FNs were issued.

Alleged error in making the drug trafficker declaration

Mr Koushappis complains that the criteria for declaring him a drug trafficker were not satisfied and so Murray J should not have relied on that declaration to make the declaration of confiscation.
Mr Koushappis was declared to be a drug trafficker in the District Court on 21 April 2005. He had rights of appeal from that decision. He exercised his rights of appeal against the 2005 convictions and was unsuccessful in having them and the drug trafficker declaration set aside. I must, and will, proceed on the basis that the drug trafficker declaration is a valid order of the District Court. Murray J was also required to, and did, proceed on the same basis. Mr Koushappis cannot be successful in setting aside Murray J's orders on any basis which alleges an irregularity in the making of the drug trafficker declaration or which alleges the invalidity of the drug trafficker declaration.
However, as this complaint was the subject of submissions before me I make the following comments in passing.
Mr Koushappis alleges that the three serious drug offences relied upon for the making of the drug trafficker declaration were not committed within the 10 year period required by the MD Act s 32A(1)(a).
The MD Act s 32A(1)(a), relevantly, says:
(1)If a person is convicted of -
(a)a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of 2 or more -
(i)serious drug offences; or
(ii)external serious drug offences; or
(iii)offences, one or more of which are serious drug offences and one or more of which are external serious drug offences;
…
the court convicting the person of the serious drug offence first referred to in paragraph (a), or the serious drug offence referred to in paragraph (b), or the relevant drug offence referred to in paragraph (c), as the case requires, shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.
It is not disputed that the serious drug offences relied on for the drug trafficking declaration were:
(1)Possess amphetamine with intent to sell or supply - convicted 31 August 1995 - Kalgoorlie District Court (the 1995 conviction).
(2)Possess heroin with intent to sell or supply - convicted 29 May 2000 - Kalgoorlie District Court (the 2000 conviction).
(3)The 2005 convictions.
Mr Koushappis submits that as the offence which resulted in the 1995 conviction was committed on 15 March 1993, he had not during the period of 10 years ending on the day on which he committed the 2005 offences, committed two or more serious drug offences.
The Court of Criminal Appeal's reasons for decision in respect of the appeal from the 1995 conviction disclose that the relevant offence was not committed on 15 March 1993, as alleged by Mr Koushappis, but it was committed on 22 June 1994: Koushappis v The Queen (Unreported, WASCA, Library No 950729, 6 December 1995).
Mr Koushappis' mistaken belief that the 1995 conviction offence was committed on 15 March 1993 appears to have arisen from an erroneous interpretation of the prosecutor's comment at the hearing of the application for the drug trafficker declaration. The prosecutor said that given that the offences the subject of the 2005 convictions were committed on 15 March 2003 he was 'looking then for previous serious drug convictions in the previous ten years go[ing] back to 15 March 1993'. When the prosecutor subsequently identified the 1995 conviction offence as being such a conviction, he was only saying that it was committed between 15 March 1993 and 15 March 2003; not that it was committed on 15 March 1993.
Mr Koushappis was convicted of a serious drug offence in 2005 and he had, during the period of 10 years ending on the day on which that drug offence was committed (15 March 2003) been convicted of two or more serious drug offences. Although Mr Koushappis had been convicted of a number of serious drug offences in the previous 10 years, only two of them needed to be identified. They were the 1995 conviction (committed 22 June 1994) and the 2000 conviction (committed 9 November 1998).
On a plain reading of the MD Act s 32A(1)(a) Mr Koushappis only had to be convicted of the earlier two serious drug offences during the period of 10 years ending on 15 March 2003. However, the MD Act s 32A(1)(a) was satisfied even if Mr Koushappis is correct and he had to have committed the earlier two serious drug offences within the period of 10 years ending on 15 March 2003.

Alleged error of law in making the declaration of confiscation

Mr Koushappis says that the declaration of confiscation is invalid because the 1995 and 2000 convictions were recorded before the Act came into force.
The Act s 8(1) states:
(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 (emphasis added).
The Act commenced on 1 January 2001.
There is no doubt that Mr Koushappis was declared to be a drug trafficker as a result of being convicted of a confiscation offence that was committed after 1 January 2001, that being any one of his 2005 convictions. In my opinion the final and triggering offence for the making of the drug trafficker declaration is the only offence which is required to have been committed after 1 January 2001. This is because the Act s 8(1) speaks of a person being declared a drug trafficker 'as a result of being convicted of a confiscation offence', singular. If Parliament had required all three offences required for the drug trafficking declaration to be confiscation offences committed after the commencement of the Act in order for a declaration of confiscation to be made, it would have said so.

Alleged wrongful 2000 convictions

Mr Koushappis says that he is not guilty of the offence which is the subject of the 2000 conviction. He says that if the 2000 conviction was not in existence, he would not have been declared to be a drug trafficker and thus the declaration of confiscation would not have been made.
The validity of the 2000 conviction is not an issue in this matter. Mr Koushappis has appealed the 2000 conviction and his appeal was unsuccessful: Koushappis v The Queen [2003] WASCA 146. I must, and will, proceed on the basis that the 2000 conviction is valid. Murray J was also required to, and did, proceed on the same basis.

Declaration of confiscation made before objection determined

Murray J ordered that Mr Koushappis' objection 'made by amended originating summons dated 21 May 2003 be dismissed'. Mr Koushappis rightly says that his objection and amended originating summons were not made on 21 May 2003. Thus, he says that his objection has never been dismissed and Murray J was in error in making the declaration of confiscation when his objection was still on foot.
As outlined earlier in these reasons, Mr Koushappis' originating summons and objection were filed originally on 8 April 2003. On two subsequent occasions they were ordered to be deemed to have been filed on later dates, but never on 21 May 2003.
The error in the date of the amended originating summons appears first to have occurred in the State's summons. Murray J simply said that he made the order as sought in paragraph 1 of the State's summons. The extracted order then reflected the incorrect date in the State's summons.
There has never been any confusion between the parties that Mr Koushappis has only filed one originating summons and one objection, but because there were multiple FNs they were amended and were deemed to have been made on later dates. Mr Koushappis does not complain that he was confused about the substance of the orders sought by the State or confused about which objection was dismissed. The transcript of proceedings before Murray J does not disclose that there was any confusion about the substance of the orders sought by the State. I am satisfied that the error in the date in Murray J's orders is an error from an accidental slip and that it could be corrected pursuant to the court's inherent jurisdiction or SCR O 21 r 10.
Consequently, there is no doubt in my view that Order 1 of Murray J's orders dismissed Mr Koushappis' amended originating summons filed 8 April 2003, which was deemed to have been made, ultimately, on 4 February 2005. It would not be unjust to Mr Koushappis to allow Murray J's orders to stand on this ground.

Claim of Eleni Le Brun

Ms Le Brun deposed that since 1989 she has financially supported Mr Koushappis, her brother, by paying, on occasions, his utilities' accounts, costs associated with caring for his children, his living expenses and his legal fees. She also lent him money so he could pay his mortgage repayments. Ms Le Brun deposed that her financial support was given to Mr Koushappis conditionally, pursuant to a verbal agreement between them which they entered into in or about 1998. The terms of the verbal agreement were that once Mr Koushappis' legal proceedings were finalised he would sell the Property and use the proceeds of the sale to repay her in one full lump sum for all the financial expenses she had incurred on his behalf. She said that this was on the basis that the mortgage on the Property was paid out before she received any payment. When she made her affidavit in September 2013, she believed that she was then owed the sum of approximately $40,000 pursuant to her verbal agreement with Mr Koushappis. She said that she believed that she had an equitable interest in the Property because of the financial contributions she had made over many years.
Ms Le Brun was cross‑examined before me. Ms Le Brun confirmed that the agreement she had with Mr Koushappis was that she would be repaid any money that she had loaned him after he had sold the Property and the mortgage had been paid out. She said that she was now owed about $50,000 by Mr Koushappis.
However, Ms Le Brun said that there was an error in her affidavit when it said that the agreement had been entered into in or about 1998. She said that in fact the agreement was entered into about 10 years earlier.
Ms Le Brun agreed that she had produced receipts to support about $24,000 worth of payments on Mr Koushappis' behalf. She said that she did not keep records of the rest of the money she had lent Mr Koushappis because he was a member of her family. She was asked in those circumstances whether she had given (as in, gifted) the money to Mr Koushappis and she denied that she had.
In re‑examination, Ms Le Brun said that she also had lent Mr Koushappis money to do some renovations to the Property. However, she said that she had never personally made mortgage repayments on the Property. Rather, she had financially supported Mr Koushappis to enable him to make repayments on his mortgage.
Ms Le Brun also said that she only withdrew her objection to confiscation because she was given legal advice that it would not succeed.
I will decide this matter on the basis that Ms Le Brun's assertions would be proved at a full hearing of Mr Koushappis' objection and the State's summons.
On 26 March 2010, Mazza J dismissed Ms Le Brun's objection 'made by amended originating summons dated 22 May 2003'. Mr Koushappis rightly says that this date was incorrect as Ms Le Brun was added as second applicant/objector to his amended originating summons and it was not dated 22 May 2003. Thus, he says that the declaration of confiscation should be set aside and Ms Le Brun's objection should be heard on its merits.
This submission fails for a number of reasons. First, for the reasons stated in relation to ground 4, the error in the date of the amended originating summons is nothing more than a correctable slip. It does not cause me to doubt that the effect of Mazza J's order was to dismiss Ms Le Brun's objection.
Secondly, it is up to Ms Le Brun to apply to have Mazza J's order dismissing her objection set aside. She has not done so. This is an application by Mr Koushappis to have Murray J's orders set aside. It is neither possible, nor appropriate, for me to set aside Mazza J's order in respect of Ms Le Brun's objection, when I am hearing Mr Koushappis' application.
Thirdly, the circumstances in which Ms Le Brun paid Mr Koushappis' various expenses over a long number of years do not give rise to any serious issue to be tried that Ms Le Brun has an equitable, legal or any other kind of interest in the Property which would justify me setting aside Murray J's orders. Taken at its highest, Ms Le Brun's evidence establishes that on a significant number of occasions, over many years, she lent money to Mr Koushappis. The loans were unsecured but were on condition that after he sold the Property and discharged the mortgage on it he would repay the loans.
Not surprisingly, given that Mr Koushappis is not a lawyer, he has not precisely stated the nature of the interest he says Ms Le Brun has in the Property. In Smith v The State of Western Australia [2009] WASC 189, McKechnie J considered claims by two objectors in similar factual situations. He discussed a number of possible equitable proprietary interests which the objectors said they had in the property the subject of confiscation in that case. Usefully, his Honour discussed why the unsecured lending of money on a promise that it would be repaid out of the proceeds of the sale of real estate or in any other way does not give rise to an equitable lien over the relevant land or any other interest in the land, recognised by the Act. I respectfully agree with his Honour's analysis.
There is a further difficulty with respect to Ms Le Brun's claim in that she says that she made this agreement with Mr Koushappis in 1989 when Ms Starr was still a registered owner of the Property. As McKechnie J pointed out in Smith [36], where there is no evidence of a common intention between registered proprietors of land to charge the land or part with an interest in it, it will affect a determination of whether a third party ever obtained an interest in the land. Another difficulty is that Ms Le Brun says that her interest in the Property continued to increase whilst the Property was frozen. This is directly prohibited by the Act s 50.

Lastly, even if Ms Le Brun had an unregistered equitable interest in the Property, for the reasons I give in relation to the claim of Ms Starr, it would not prevent the confiscation of the Property.

Claim of Sandra Starr

Mr Koushappis and Ms Starr were in a de facto relationship for a number of years and had three children. In 1989, they purchased the Property and it was registered in their two names, as joint tenants. Their relationship broke down and Ms Starr deposed that in about 1998 she came to an agreement with Mr Koushappis about their joint property and finances (the 1998 settlement). The 1998 settlement involved her relinquishing her ownership of the Property. She said that she did this because she could not obtain government housing if she owned the Property. On 8 April 1999, Mr Koushappis became the sole registered owner of the Property.
The 1998 settlement came after Ms Starr had applied to this court for an order for partition of the Property and an order directing the sale of the Property. On 27 May 1998, Ms Starr obtained a default judgment in the action. On 2 October 1998, Master Bredmeyer delivered judgment granting Mr Koushappis' application to set aside that default judgment: Starr v Koushappis (Unreported, WASC, Library No 980574, 2 October 1998). Master Bredmeyer noted that in support of that application, Mr Koushappis filed an affidavit in which he deposed that:
(1)the Property was acquired for the sum of $52,000;
(2)he paid the deposit of about $6,000 from his personal savings and that Ms Starr did not contribute to the deposit;
(3)Ms Starr and he borrowed $46,000 towards the acquisition of the Property;
(4)he did extensive construction and renovation on the Property and that Ms Starr never assisted him in that construction;
(5)he made all mortgage repayments in respect of the Property and Ms Starr 'made no contribution whatsoever to the acquisition, conservation, management or improvement of the property'; and
(6)he is entitled to a more than half share in the Property, because of his 'sole contribution to its acquisition and improvement'.
Ms Starr has deposed that sometime after the 1998 agreement, she received notification from the mortgagee which indicated that she was still liable for the repayment of the mortgage, even though she was no longer named as owner on the title to the Property.
She said that she spoke with Mr Koushappis and he agreed that if she paid him the sum of $15,000 in cash, he would have her name put back on the title of the house (the 2002 agreement). She says that she paid that sum on 13 November 2002 on condition that he would organise to return her name to the title.
Ms Starr was cross‑examined on her affidavit. Ms Starr said that under the 1998 agreement Mr Koushappis paid her $25,000.
Ms Starr acknowledged that she had been served with the State's summons. She acknowledged that she did not seek legal advice in respect of it. She said that she understood from what her lawyer had told her at the time of the 1998 agreement that she had no further claim over the Property. She said that after the Property was made the subject of the FNs, she could not make any mortgage payments or pay the rates. She acknowledged that she had not paid any money towards those items.
Ms Starr also acknowledged that despite being served with a FN she had neither filed an objection, and neither had she provided a statutory declaration to the police. Her explanation for her failures varied but they included being busy with the children, putting the documents to one side and not reading them, trusting Mr Koushappis to do the right thing and being preoccupied with her own problems.
She said that she became involved in these proceedings when her children told her that she should pursue her interest in the Property. She agreed that she had not filed any document with the court prior to her swearing an affidavit in September 2013. She said that in respect of the preparation of that affidavit, she wrote it out herself, with her daughter's assistance. She said that she did not speak to Mr Koushappis about it. She said that she sent it to Ms Le Brun after she had prepared it. Ms Le Brun told her that she should put in a claim in respect of the Property because she (Ms Starr) was entitled to it, for herself and her children.
In re‑examination, Ms Starr said that the deposit for the purchase of the Property came from the sale of another property in Mandurah which was in both her and Mr Koushappis' names. Mr Koushappis also put to Ms Starr that the money used to make mortgage repayments and utility payments belonged to both of them. Ms Starr agreed.
Mr Koushappis also swore an affidavit on 5 September 2013 in relation to Ms Starr's alleged interest in the Property. He deposed that he and Ms Starr bought the Property in December 1989 for $55,000. He said that they paid a $6,000 deposit and borrowed $49,000 from the United Credit Union in joint names. He said that when their relationship broke down, he paid Ms Starr $25,000 for her half share of the Property on the condition that she made no further claim on it. He said that at that time the Property was valued at about $180,000. He said that the mortgage was not refinanced and remained in joint names. At that time, he said he could have paid out the mortgage for about $30,000.
In November 2002, Ms Starr told him that she had $15,000 and she wanted to buy back her half share of the Property because she was still responsible for half of the mortgage. She told him that if he did not sell her back her half share of the Property, she wanted her name removed from the mortgage. He said that he agreed to sell Ms Starr back her half share of the Property for $15,000 on 15 November 2002. He deposed that under the 2002 agreement he was supposed to arrange to have her name put back on the title deed of the Property, but he did not do so.
Mr Koushappis was cross‑examined on this affidavit.
Mr Koushappis claimed to have no recollection of Ms Starr's application to this court in 1998 to have the Property sold. He said that she had come to him when she wanted money and could not get her own home because her name was still on the title to the Property.
He said that in 2002 he could not refinance the mortgage and so he allowed her to buy back her half share of the Property. He said that after Ms Starr paid him $15,000, he went to Perth for about three months. He did not arrange to have her name put back on the title to the Property.
Mr Koushappis acknowledged that he had not provided the police with a statutory declaration indicating that Ms Starr had an interest in the Property. He said that he took the first FN to his then lawyer who told him that she would sort it out. He said that from the very first, his then lawyer knew that he said that both Ms Le Brun and Ms Starr had interests in the Property.
Mr Koushappis said that he bought a car, which was subsequently seized and confiscated, with the $15,000 given to him by Ms Starr.
Both Ms Starr and Mr Koushappis gave evidence that on 15 November 2002, when Ms Starr gave Mr Koushappis the $15,000 on condition that he would transfer half of the ownership of the Property to her, a receipt was written out which Mr Koushappis signed. At the hearing of this matter an issue arose as to the admissibility of the receipt because it is not stamped. It states:
I Andrew Chris Koushappis, do hereby state that I received 15,000 dollars from Sandra Star in cash. Being payment for half ownership of house at 15 Gilberton St Kalgoorlie.
I received the payment in cash on 15^th November 2002.
A Koushappis (Signed)
15-11-2002
Ms Starr attached a copy of the receipt to her affidavit which was sworn on 29 August 2013. She acknowledged that this was the first time she had brought the receipt to the attention of the State and the court. In evidence, the explanation which she gave for her failure to produce the receipt at an earlier time was that although she believed that she took possession of it after Mr Koushappis signed it, she then lost it and thought that she had no claim on the Property. However, her daughter spoke to her and said that they had to find the receipt and pursue the matter. She said that her daughter and Ms Le Brun found the receipt and she decided to pursue a claim for an interest in the Property for her children's benefit.
Ms Starr believed that she wrote the receipt and that Mr Koushappis only signed it. After she took possession of the receipt, she moved places on a number of occasions and whilst Mr Koushappis was in prison she stayed at the Property. She said that she left some of her papers there.
Mr Koushappis said that when he agreed that Ms Starr could buy back a half share of the Property she told him that she wanted proof of purchase. He said that he told her to write out the receipt and he would sign it, which was what occurred. He said that he did become aware of the fact that Ms Starr was not continuing with her claim on the Property because she could not find her receipt. He also said that Ms Starr lived at the Property from about March 2006 to January 2008, whilst he was in prison.
Mr Koushappis said that Ms Le Brun rang him up when he was in prison and told him that she had found the receipt. She then faxed a copy of it to him.
Ms Le Brun gave evidence that Mr Koushappis had asked his daughter, Kelly, and herself to find copies of receipts for money that had been paid to his lawyer. Ms Le Brun said that either she or her husband collected two burgundy lever arch files, a green satchel‑type file, and a purple lunchbox from Kelly. She believed that these were Mr Koushappis' files which Kelly had collected from the Property. Ms Le Brun took them to her home and searched through them. In one of the files, she found the receipt. She believed that she sent a copy of it to Mr Koushappis by fax on 31 July 2011.
The unstamped receipt was produced during the hearing on 14 August 2014. It appeared that Mr Koushappis was intending to use the receipt as an unregistered instrument of transfer of one half share in the Property to Ms Starr or as evidence of an acquisition by Ms Starr of an interest in the Property. In those circumstances, it would not be admissible in evidence unless it was stamped: Stamp Act 1921 (WA) s 27. At the end of the hearing, I adjourned so as to give Mr Koushappis an opportunity to have it stamped. On the resumed date, I was advised by the parties that the Office of State Revenue (the Office) had advised that stamp duty could not be paid on the receipt because the Property had been transferred to the State as a consequence of Murray J's orders and because only Mr Koushappis had signed the receipt. That is the way the issue has been left. It is not clear to me whether the advice from the Office is that stamp duty is not payable or that it will not endorse the receipt pursuant to the Stamp Act s 17C.
In either circumstance, I am not satisfied that the receipt is admissible in evidence. However, my decision not to admit it into evidence will not prejudice Mr Koushappis' application as I will determine it on the basis that at a full rehearing of the State's summons Mr Koushappis would be able to establish that the 2002 agreement was made. Further, I will assume for the purpose of this application only that it is unnecessary for Mr Koushappis to prove that the 2002 agreement was in writing in order to prove that he held a half share of the Property in trust for Ms Starr: Property Law Act 1969 (WA) s 34 and the discussion of its application in Marist Brothers Community Inc v The Shire of Harvey (Unreported, WASC, Library No 940667, 1 December 1994); (1994) 14 WAR 69, 79 ‑ 85.
Mr Koushappis and Ms Starr do not assert that when they entered into the 2002 agreement they intended that stamp duty would be paid on the receipt and/or it would be lodged with the Registrar of Titles. Ms Starr took possession of the receipt and the effect of the evidence is that she intended to keep it as her proof of the 2002 agreement. The terms of the 2002 agreement were that Mr Koushappis was to organise the transfer of the half share of the Property, but there was no agreement or intention that he was to use the receipt to do so. Therefore, the only relevance of the receipt is to prove, if it could, that the 2002 agreement was made. That is a fact I will assume for the purpose of this application.
Thus, I will assume that at a full rehearing of the State's summons, Mr Koushappis would be able to prove that on 15 November 2002 he agreed to transfer half the Property into Ms Starr's name in exchange for payment of $15,000. However, he did not transfer that half share. Consequently, Ms Starr did not receive a legal interest in the Property. On the basis of these facts, Mr Koushappis' best case is that from that date he was the sole legal owner of the Property but he held a half share in the Property in trust for Ms Starr. If Mr Koushappis was able to prove the facts as he asserts, Ms Starr may have had an unregistered, equitable interest in a half share of the Property at the time Mr Koushappis was declared to be a drug trafficker.
The question then is whether it would be unjust for Murray J's orders to stand if Ms Starr had such an interest?
That question can only be answered by examining whether such an interest would defeat the State's summons.
The State's application for a declaration of confiscation was made under the Act s 30 which states:
(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 Act s 8 provides that upon Mr Koushappis being declared a drug trafficker, the following property was 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.
'Owns' is not defined by the Act but 'owner' is defined to mean 'a person who has a legal or equitable interest in the property'. 'Property' is defined to include real property or a legal or equitable interest in real property.
There is no doubt that Mr Koushappis owned the Property at the time he was declared to be a drug trafficker because he was the sole legal owner of the Property. Thus, irrespective of any unregistered equitable interest held by Ms Starr, the Property was confiscated to the State when Mr Koushappis was declared to be a drug trafficker. That being the case, when the State applied to the court for a declaration that the Property had been confiscated, the court had to make a declaration to that effect. The Act s 9 states that where property vests absolutely in the State as a consequence of a declaration of confiscation under the Act s 30, which is made following the confiscation of real property pursuant to the Act s 8, the property vests free from all interests, whether registered or not, including trusts. The Act does not confiscate an innocent party's interest in real property but the final effect of the applicable confiscation provisions is to extinguish such an interest.
I note for completion that the Act does not provide that the holder of an unregistered equitable interest in land frozen under the Act s 34(3) can successfully object to the confiscation of a drug trafficker's land. Even if the declaration of confiscation was set aside and Mr Koushappis' objection was re‑heard, neither he nor Ms Starr would be relieved from the effects of the Act ss 8, 9 and 30. For example, s 8 provides independent criteria for confiscation and so the criterion for confiscation in s 7, which requires that before confiscation occurs any objection to confiscation has been finally determined, does not apply to cases where property is confiscated under s 8.
Further, the Act pt 6 deals with objections to confiscation. Section 81 provides that on hearing an objection to the confiscation of frozen property, the court may set aside the FN order to the extent permitted under the Act ss 82, 83 or 84. Only s 84 is relevant to property frozen under the Act s 34(3), as the Property was frozen. It provides that the court may set aside a FN if it finds that it is more likely than not that the person who is or will be charged with the offence, in this case Mr Koushappis, does not own or effectively control the property, and has not at any time given it away. It is very clear that the court would never find that Mr Koushappis did not own the Property as he was the sole legal proprietor of it.
In these circumstances, the answer to the question I posed above, is no, it would not be unjust for Murray J's orders to stand in light of Ms Starr's alleged interest in the Property. It would be inevitable that, in accordance with its duty under the Act, if Murray J's orders were set aside and the matter was reheard, the court would make the same orders, but with the correct date of Mr Koushappis' amended originating summons.

The confiscated cars had not been transferred into Mr Koushappis' name

Very late in the hearing Mr Koushappis raised a further ground, which I will deal with for the sake of completion. He says that some of the cars which were the subject of the FNs and the declaration of confiscation had only recently been purchased by him and he had not transferred them into his name when the FNs were issued. He says that he was intending to register one of the cars in his daughter's name. Thus, he says that they should not have been included in the declaration of confiscation.
Mr Koushappis' argument begins with the acknowledgement that he had purchased the cars. This is sufficient to establish the criteria for ownership of the vehicles, whether or not they were registered in his name at the time the FNs were issued. Unlike real property, there is not a system of ownership by registration of title for motor vehicles. It was unnecessary for the State to prove that they were registered in his name.
As to the car which he says that he was going to give to his daughter, it is apparent that he had not yet done that. Consequently, he owned that vehicle too at the relevant time.

Conclusion

For the above reasons, I grant an extension of time within which to bring this application but dismiss Mr Koushappis' application to set aside Murray J's orders.