Koushappis v The State of Western Australia [No 2]
[2015] WASC 211
•12 JUNE 2015
KOUSHAPPIS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASC 211
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 211 | |
| Case No: | CIV:1408/2003 | 5 JUNE 2015 | |
| Coram: | BEECH J | 12/06/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | ANDREW CHRIS KOUSHAPPIS ELENI CARMEN LE BRUN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Practice and procedure Slip rule Application to amend perfected order Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA) O 21 r 10 |
Case References: | Koushappis v The State of Western Australia [2015] WASC 64 Koushappis v The State of Western Australia [No 2] [2012] WASCA 194 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
ELENI CARMEN LE BRUN
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Slip rule - Application to amend perfected order - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 21 r 10
Result:
Application granted
Category: B
Representation:
Counsel:
First Plaintiff : In person
Second Plaintiff : No appearance
Defendant : Mr M Seaman
Solicitors:
First Plaintiff : In person
Second Plaintiff : No appearance
Defendant : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Koushappis v The State of Western Australia [2015] WASC 64
Koushappis v The State of Western Australia [No 2] [2012] WASCA 194
- BEECH J:
Introduction
1 The Director of Public Prosecutions for Western Australia applies under the slip rule to amend two orders dismissing objections to confiscation of Mr Koushappis' property.
2 For the reasons that follow, I am satisfied that the orders sought by the DPP should be made.
Background facts
3 On 12 March 2003, Mr Koushappis was charged with offences under the Misuse of Drugs Act 1981 (WA) that might give rise to his being declared a drug trafficker. After Mr Koushappis was charged, he was served with freezing notices issued pursuant to the Criminal Property Confiscation Act 2000 (WA) (the CPCA) pt 4 div 2.
4 The property frozen under the freezing notices included a residential property at 15 Gilberton Street, Kalgoorlie (the Property). Mr Koushappis was the sole registered proprietor of the Property
5 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. Section 34(3) of the CPCA permits a freezing notice to be issued on this ground. Other items of property were frozen on the basis that they were crime-used and crime-derived.
6 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 freezing notice 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 freezing notice included all or any property that was owned and/or effectively controlled by Mr Koushappis. Presumably, it therefore included the Property. These freezing notices were filed in the Supreme Court, as required by the CPCA
7 On 9 April 2003, Mr Koushappis through his solicitors, then commenced these proceedings by filing an originating summons dated 8 April 2003 objecting to the confiscation of property the subject of AISFN 030009.
8 On 27 May 2003, orders were made by consent that:
(1) Mr Koushappis have leave to amend his notice of objection and originating summons to include an objection to the confiscation of property the subject of AISFN 030019;
(2) the date of the objection in relation to that freezing notice be deemed to be 22 May 2003;
(3) the objection made by originating summons and notice of objection dated 8 April 2003 and by the amended originating summons and amended notice of objection to be filed pursuant to order 1 was otherwise adjourned sine die.
9 As Mr Koushappis points out, no amended originating summons was in fact filed in May 2003. However, nothing turns on that because, as will be seen, the position was regularised in February 2005.
10 The two 2003 freezing notices the subject of CIV 1408 of 2003 were cancelled on 31 December 2004 because the charges that had been laid against Mr Koushappis on 12 March 2003 were discontinued on 16 December 2004.
11 On 31 December 2004, new freezing notices were issued following the laying of substitute charges against Mr Koushappis, including AISFN 040099.
12 Mr Koushappis emphasises that from 16 December 2004 to 31 December 2004 he was not subject to any charge. I will return to this point later in these reasons.
13 On 7 February 2005, orders were made by consent that:
(1) Mr Koushappis have leave to amend his notice of objection and originating summons to include an objection to the confiscation of property the subject of AISFN 040099;
(2) the date of the objection in relation to that freezing notice be deemed to be 4 February 2005;
(3) the objection to confiscation by the originating summons and notice of objection dated 8 April 2003, by the amended originating summons and amended notice of objection dated 22 May 2003, and by the amended originating summons and amended notice of objection to be filed pursuant to order 1 was otherwise adjourned sine die.
14 On 10 February 2005, then solicitors for Mr Koushappis filed an amended originating summons and objection reflecting those orders. The amended originating summons dated 10 February 2005 sought an order that the property the subject of AISFN 030009 dated 6 March 2015 and AISFN 040099 dated 31 December 2004 not be confiscated. Thus the amended form of summons picked up the amendments for which leave was given in May 2003, and the amendment for which leave was given on 7 February 2005.
15 It can be seen from this history that there was only ever one originating summons, coupled with a notice of objection. It was amended so as to claim orders setting aside additional freezing notices.
16 On 7 November 2007, the DPP filed a chamber summons dated 30 October 2007 seeking an order that Mr Koushappis' objection to the confiscation of frozen property made by amended originating summons dated 21 May 2003 be dismissed.
17 In fact, there is, and was, no amended originating summons dated 21 May 2003.
18 The correct reference would be to the amended originating summons filed 10 February 2005, or to the originating summons dated 8 April 2003 as amended.
19 The purpose and intended effect of this application is to correct the reference to the originating summons in the orders subsequently made on the DPP's chamber summons of 31 October 2007.
20 It appears from the affidavit of Michael Seaman sworn 27 March 2015 that a draft amended originating summons dated 21 May 2003 was placed on the court pin of the DPP's file. It is a reasonable inference that that is what led to the erroneous reference in the chamber summons dated 30 October 2003.
21 On 24 September 2009 orders were made by consent joining Mr Koushappis sister, Ms Eleni Le Brun as a party to CIV 1408 of 2003 as second applicant/objector.
22 On 26 March 2010 Mazza J dismissed Ms Le Brun's objection. His Honour made an order in the following terms:
The second applicant's objection to the confiscation of frozen property made by amended originating summons dated 22 May 2003 be dismissed.
23 This is one of the orders sought to be amended by this application.
24 It appears from the transcript that proceedings on that day, that that occurred following Ms Le Brun's counsel informing the court that Ms Le Brun withdrew her objection. Counsel for Mr Koushappis sought an adjournment for a month to enable the lodgement of an appeal against the order that he be declared a drug trafficker. His counsel said:1
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.
25 Following an unsuccessful special leave application, Mr Koushappis' objection and the State 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. 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 [redacted] 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').
27 In 2011 Mr Koushappis applied to the Court of Appeal for an extension of time to appeal against the making of the declaration of confiscation. On 6 August 2012, the Court of Appeal ordered that an extension of time be granted but that the appeal be dismissed. On 8 October 2012, the Court of appeal published its reasons.2 In the reasons, Buss JA (Pullin and Newnes JJA agreeing) pointed out that it was open to Mr Koushappis to apply to set aside the orders of Murray J on the ground that it was made in the absence of him and his lawyer.
28 Subsequently, Mr Koushappis applied to have Murray J's orders set aside.
29 That application was heard and determined by Jenkins J.3 Her Honour granted an extension of time within which to bring the application, but dismissed the application. In determining that application, Jenkins J gave detailed consideration to Mr Koushappis' grounds in alleging that the declaration of confiscation should not have been made. One contention advanced by Mr Koushappis was that his objection had never been dismissed. This he said arose because Murray J's order that the objection 'made by originating summons dated 21 May 2003 be dismissed' referred to a non-existent objection and amended originating summons, in that there was no such objection and amended originating summons dated 21 May 2003. In rejecting that contention, Jenkins J said as follows:4
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.
30 In the proceedings before Jenkins J, Mr Koushappis advanced a similar contention in relation to the order of Mazza J on 26 March 2010. Again, Mr Koushappis contended that that order was made in respect of a non-existent amended originating summons since there was no originating summons dated 21 May 2003. In rejecting that contention as a ground to set aside the confiscation order, Jenkins J said as follows:5
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.
The DPP's application
31 By summons dated 27 March 2015, as amended at the hearing on 5 June 2015, the DPP applied for orders that:
(1) the order made by Mazza J on 26 March 2010 be amended by deleting the words 'amended originating summons dated 22 May 2003' where they appear at order 1 and replacing them with the words 'originating summons dated 8 April 2003 as amended';
(2) the order and declaration made by Murray J on 25 November 2010 be amended by deleting the words 'amended originating summons dated 21 May 2003' where they appear at order 1 and replacing them with the words 'originating summons dated 8 April 2003 as amended'.
The disposition of the application
32 I adopt and apply the principles relevant to the discretion to amend an extracted order stated by Allanson J in Commissioner of the Australian Federal Police v Goldfinger Bullion Reserve Corporation [No 2]:6
The orders have been formally recorded. The general rule is that a superior court of record, in the absence of a statutory provision, and subject to certain narrow exceptions, may not reopen an extracted order. This rule is underpinned by a central and pervading tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 [34]; Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 [15].
The slip rule in O 21 r 10 of the Rules of the Supreme Court is one of the exceptions. The rule reflects the inherent jurisdiction of a court 'at any time to correct an error in a decree or order arising from a slip or accidental omission', regardless of whether the order has been drawn up, passed and entered: see Milson v Carter (1893) AC 638, 640. It applies where the mistake or error is the result of inadvertence by a party's legal representative: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590, 594. But it is a power to correct a mistake. The correction should be such that had the matter been drawn to the court's attention at the time, the correction would have been made at once: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446. Where the proposed correction would alter the substance of an order in a matter on which there might be a real difference of opinion, the rule does not apply.
33 In my view, the interests of justice require that the terms of the order be amended in the way sought by the DPP. The reference in each order to the amended originating summons dated 21 May 2003 was a slip or accidental error made by the DPP's legal representative and not identified by the court, or anyone else, at the time each of the orders were made. There is no prospect that any party to the proceedings was misled about what was being referred to. As I have explained, Mr Koushappis only ever had one originating summons and notice of objection. It was amended to add the additional freezing notices. I have no doubt that had the error been drawn to the court's attention at the time the order was being made the correction would have been made immediately, unhesitatingly and without room for any debate.
34 Mr Koushappis stated that he did not object to the amendments to the dates sought by the DPP because it still 'doesn't solve my problem'.7
35 Mr Koushappis emphasised that between 16 December 2004 and 31 December 2004 he was not facing any charge. Further, he submitted that once the 2003 freezing notices were cancelled the objection to those freezing notices fell away and was, in effect, disposed of. Consequently, his submission continued, the originating summons should not have been amended in 2005.
36 I do not accept those submissions. First, for the purposes of this application, what is significant is that the amendment was made in February 2005, not whether it should have been made. Moreover, it was made by consent. Further and in any event, in my view the amendment of the originating summons in February 2005 was a convenient and permissible means of bringing the court process up to date with the fact that a new freezing notice had been issued on 31 December 2004. Mr Koushappis might have chosen to commence a new proceeding to challenge the new freezing notice, and incurred the additional expense of doing so. However, by his solicitors he chose instead to amend the existing proceedings. The State consented to that course.
37 Mr Koushappis further submits that the whole question of whether the freezing notice should be set aside needs to be reheard in accordance with what the appeal court said. Nothing in the reasons of the appeal court supports the rejection of the present application. The appeal court pointed out to Mr Koushappis that it was open to apply to extend time to set aside Murray J's order on the grounds that it was heard and determined in his absence. Mr Koushappis has invoked that process. His application has been heard and dismissed.
38 For these reasons, I would make orders in the terms sought by the DPP.
1 ts 26 March 2010, 10.
2Koushappis v The State of Western Australia [No 2] [2012] WASCA 194.
3Koushappis v The State of Western Australia [2015] WASC 64.
4Koushappis v The State of Western Australia [72] - [74].
5Koushappis v The State of Western Australia [83] - [85].
6Commissioner of the Australian Federal Police v Goldfinger Bullion Reserve Corporation [No 2] [2013] WASC 16 [13] - [14].
7 ts 5 June 2015, 266.
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