Mansfield v Director of Public Prosecutions WA

[2005] HCATrans 876

[2005] HCATrans 876

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P23 of 2005

B e t w e e n -

NIGEL CUNNINGHAM MANSFIELD

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 25 OCTOBER 2005, AT 3.58 PM

Copyright in the High Court of Australia

MR M.L. BENNETT:   If it please your Honours, I appear for the applicant.  (instructed by Bennett & Co)

MR D.R. WILLIAMS, QC:   May if please the Court, I appear with my learned friend, MR T.A. STAPLES, for the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

GUMMOW J:   Yes, Mr Bennett.

MR BENNETT:   Your Honours, we desire to make three points in answer to the submissions that are made by my friend in his written case.  The first is my friend observed ‑ ‑ ‑

GUMMOW J:   Now, we have been supplied, as is usual we regret to say, bits and pieces of legislation.  We have not been given section 101 of the Criminal Property Confiscation Act.  We have been given section 102.  Section 101 is the vesting jurisdiction, is it not?

MR BENNETT:   Yes, it simply provides:

The Supreme Court has jurisdiction in any proceedings under this Act.

GUMMOW J:   And a number of other courts too.

MR BENNETT:   Yes:

The District Court has jurisdiction . . . in connection with property if –

(a)      the property is not registrable real property; and

(b)      the value of the property is not more than $250,000.

GUMMOW J:   And section 102 tells us something about the nature of the proceedings.

MR BENNETT:   Your Honours should have that.

GUMMOW J:   Yes, we have that.

MR BENNETT:   Subsection (1) is relied upon by the applicant.  Subsection (2) are procedural matters that apply other than “in relation to an offence under this Act”.

GUMMOW J:   Yes, and then Division 3 of Part 4 deals with a particular species of matter, these applications by the DPP for freezing orders, is that right?

MR BENNETT:   No.

GUMMOW J:   Section 41?

MR BENNETT:   Sorry, Division 3, Part 4, yes, your Honour.  The application, as it turned out, could proceed only on – although the order reflects that it was made on two grounds, in one of the grounds, the Director referred to the incorrect section that has been struck out and abandoned and essentially is made only pursuant to section 43(3)(c) of the Act.  That is that the Director had advised the court that an application for a criminal benefits declaration would be made within 21 days.

GUMMOW J:   The court may make?

MR BENNETT:   Yes.

GUMMOW J:   Yes, I see.

MR BENNETT:   The other appeared to be an attempt by the Director to rely upon section 43(1), but as the order of Justice McKechnie, which is in your Honours’ application book, shows what the Director referred to as section 43(3)(a) which has no application.

GUMMOW J:   This is not necessarily said adversely to you, but why do not these provisions attract the notion as expressed in a number of cases including Roy Morgan (2001) 207 CLR 72 at 78, namely that these provisions conferred jurisdiction on the Court and “on that account alone [are] to be given no narrow construction” and are “to be construed with all the amplitude that the ordinary meaning” of the words admit, and the word is “may”.

MR BENNETT: We would adopt that, your Honour, and we would say that recourse to section 102(1) as a civil proceeding invokes all of the powers of the Supreme Court in relation to matters of discretion. It is not necessary, therefore, to have regard expressly to section 24(7) of the Supreme Court Act but if one did, then one of the three points we desire to make is in answer to my friend’s point about the application of Thomson v Trade Practices Commission that there is a clear importing of the discretion in the Supreme Court by this legislation and section 24(7) merely fashions the exercise ‑ ‑ ‑

GUMMOW J:   The Trade Practices Act is interesting because, as originally drafted, section 80 was silent on this question of undertakings.  Then there was a debate back in the 1970s as to what happened when the commission was the applicant or the Attorney and the answer was the introduction of section 80(6) in 1977, namely, to make it quite clear that there was to be no requirement of an undertaking.

MR BENNETT:   Yes, but in relation to my friend’s argument, my friend’s argument is to say adopting Thomson Australian and the majority reasoning is to say that the one looks solely to the criminal confiscation provisions to determine whether or not an undertaking should be required.  Absent a specific requirement, then there is no power on the court to condition the exercises of its discretion by requesting the proffering of an undertaking as a precursor to making an order freezing all or any of the property.

GUMMOW J:   It is said against you that the legislation has been changed.

MR BENNETT:   We say that one does not need to have recourse to the historical origins of this legislation or the second reading speech by the parliamentary secretary on the introduction of the Bill.  There is no ambiguity.  The Supreme Court is vested with a discretion.  The precursor Act did not have an equivalent to section 102(1).  Once you import the full notion of judicial discretion, the court is entitled to ask for an undertaking as a precondition for the grant of relief which is extraordinary relief given, as in this case ‑ ‑ ‑

GUMMOW J:   But not required.

MR BENNETT:   Not required, but in the exercise ‑ ‑ ‑

GUMMOW J:   I got the impression from something that was said in the argument that what was involved here was the importation of the ordinary equity jurisdiction where undertakings ordinarily are required, but not of the Crown, of course.

MR BENNETT:   Not always of the Crown.  That is a Hoffman line of cases, whether or not one should require that of the Crown.  But here, in the facts of this case where Mr Mansfield’s entire property, both present and future, was frozen on an ex parte application in camera on the basis of affidavit material that has never been revealed to him, then we would say that for the court to request of the Director the proffering of an undertaking as to damages would be an appropriate precondition for the exercise of what is otherwise extraordinary powers.

GUMMOW J:   That may or may not be so, I do not know about this case, but was not the case decided against you on the basis of lack of power?

MR BENNETT:   Yes, and we seek leave to appeal to determine there is a power and that is a matter that can then be determined on the facts of the matter.  So it is construction of the ‑ ‑ ‑

GUMMOW J:   Would not be determined by us.

MR BENNETT:   That is right, we would accept that.

GUMMOW J:   Now, it is then said against you that there is a statutory immunity conferred.

MR BENNETT:   Well, that is the immunity under section 137.

GUMMOW J:   Yes.

MR BENNETT:   It is an immunity for personal liability.  That does not, in our respectful submission, apply in circumstances where an undertaking is requested of the Director proffered either by the Director or the State – your Honours will have seen the President was of the view that if he was wrong in his construction on the statute, the undertaking ought to be proffered by the State, not by the Director because the immunity in section 137 is acting in good faith.  Appeal Justice Pullin in the dissenting judgment, which we rely upon, analyses that, and we would adopt, with respect, his reasoning that you would not be acting in good faith if you had sought to rely upon the immunity provisions having offered an undertaking as to damages.

GUMMOW J:   Yes, I took you off your course.

MR BENNETT:   Not at all, your Honour, we are happy to deal with that.  The three points that we wanted to raise, and my friend says that this is an interlocutory application, relies upon the dicta of this court in Santos’ Case, we would accept that entirely.  However, we would point out that this could only be raised as a point on an interlocutory application.

GUMMOW J:   Well, that is right.  It is like CSR v Cigna, for example.

MR BENNETT:   Entirely.

GUMMOW J:   And LED v Cardile.

MR BENNETT:   The second point is the Thomson Australian point and we would say that jurisdiction having been invested in the Supreme Court expressly by the terms of the Act by the use of the word “may”, which should be seen as importing a discretion on the part of the court, then section 24(7) of the Supreme Court Act can be given full force and effect because it is how the exercise of the discretion works within the court on such terms that are reasonable so as to do justice between the parties.

GUMMOW J:   Where do you say one gets the content of “may”?

MR BENNETT: One can find that in section 24(7) of the Supreme Court Act.  But it imports, we would say, the full common law jurisdiction of the court in the exercise of a judicial discretion to act judicially between the parties so as to give justice between the parties.  Now, the third point is the question of the importance of this legislation.  My friend in his case makes the point that this statute is relatively unique in Australia.  It is the same position that pertains in South Australia and the Northern Territory.  Your Honours will, however, observe that this statute attempts to give force and effect to extraterritorially by section 5(3) of the Act.

GUMMOW J:   Yes, we have not been given that either.

MR BENNETT:   It should have been, your Honour.

GUMMOW J:   I did find it somewhere.  It does appear to apply not exclusively to WA situated property.

MR BENNETT:   No, section 5(3) applies:

(b)      to the fullest extent of the capacity of the Parliament to make laws with respect to property outside the State, to property outside Western Australia.

GUMMOW J:   Yes, well, there could be full faith and credit questions involved, I suppose.

MR BENNETT:   Yes, and the other thing in view of that is section 141 of the Act, which I am sure your Honours may not have elsewhere, is a confiscation offence is “an offence against [any] law . . . in Australia”.  Now, the situation in relation to Mansfield as an applicant is he faces prosecution by the Commonwealth for a federal offence, an insider trading allegation under what was section 1002G of the Corporations Act - it is now a federal offence.  The Commonwealth Director does not rely upon the Commonwealth confiscation of profits legislation.  It is forfeited – the property is frozen under the State legislation.  Were it under the Commonwealth, the Commonwealth have undertakings as to damages and provision for legal costs.

GUMMOW J:   Just explain to us this interface between State and federal law.

MR BENNETT:   It is relatively complex.  If I can tell your Honours, because I made notes ‑ ‑ ‑

GUMMOW J:   That is why we asked.

MR BENNETT:   On 15 July 2001 section 1002G ceased to be part of the law of Western Australia under the Corporations (Ancillary Provisions) Act subsection (7), subsection (2).

GUMMOW J:   Yes.

MR BENNETT:   And the new Corporations Act section 1400(2), the effect of the Ancillary Provisions Act was that all accrued rights and liabilities under the national scheme laws were protected and legal proceedings that had been commenced could be continued.  Subsection (2) provided that by force of chapter 10 of the new Corporations Act it ceased to be an offence under the State law and became an offence under the Commonwealth law.

GUMMOW J:   Yes.

MR BENNETT:   So the interface is that he has incurred a liability if the allegations against Mansfield ‑ ‑ ‑

GUMMOW J:   At the time he incurred the liability, State law, is that right?

MR BENNETT:   Yes, 1002G.

GUMMOW J:   Today Commonwealth law?

MR BENNETT:   Yes, prosecuted by the Commonwealth Director of Public Prosecutions, but the assets frozen by the State Director of Public Prosecutions because of the definition within the State Act of a confiscable offence.

GUMMOW J:   Which is?

MR BENNETT:   An offence against any law of Australia anywhere.  If you happen to be in Western Australia but you have committed an offence anywhere, or you have property in Western Australia, all of your assets either in Western Australia or to the fullest extent of Western Australian Parliament throughout Australia can be frozen.

KIRBY J:   Does this mean that the Supreme Court of Western Australia was exercising federal jurisdiction in this case?

MR BENNETT:   Well, no, it was making an order under the State Act in respect of a confiscable offence being a federal offence.  An original order was a July 2002 order by Justice McKechnie.

GUMMOW J:   Yes.

MR BENNETT:   It is a curious interface because had our assets been frozen under the Commonwealth legislation in respect of which we are being prosecuted, we would have had an undertaking as to damages and we would have our legal costs that we could defend ourselves.  Under this State legislation, no legal costs.  If the decision of the Full Court is right, Mr Mansfield has no assets present or in the future which he can apply to defend himself in respect of these offences.

GUMMOW J:   Now, you succeeded in the Court of Appeal on some points, did you not?

MR BENNETT:   Yes, they are not the subject of the leave application.  They were what was called loosely the Citibank application.

KIRBY J:   Does that stand against you in the sense that this point can in some way be rolled up in matters that have been sent back to the Supreme Court?

MR BENNETT:   No, your Honour.  The Citibank point was that Mr Mansfield had some cars under lease that were frozen by the original order.  They were held by the Director.  Citibank sought to – they were eventually sold.  The amount they were sold for was insufficient to discharge the approved leasehold liability, the balloon payment at the end.  Citibank commenced in New South Wales in the Federal Court bankruptcy proceedings against Mr Mansfield.  Mr Mansfield was unable to apply any of his own property, because it was all entirely frozen, in order to discharge those liabilities.  He sought to raise that before the original judge on the first application, his Honour Justice Roberts‑Smith, and an adjournment to put on additional evidence was declined.  The Full Court said it should have been given and it was sent back.  It was not cars.  It was credit cards rather than cars.  But there were credit card debts as well involved in the Citibank matter.  But it does not stand against us.  These are quite discrete construction points.

KIRBY J:   In a sense it is a fortiori because you now have to go through another process of litigation and you have no undertaking as to damages.  If that is a power which the Supreme Court of Western Australia has, you face still further litigation without the protection of such an undertaking.

MR BENNETT:   Potentially we face the consequence of bankruptcy without the protection of an undertaking as to damages.

GUMMOW J:   Your notice of appeal seems rather ambitious when one looks at page 67, particularly paragraphs 3(c), 3(d) and 3(e).

MR BENNETT:   Yes.

GUMMOW J:   If you did succeed in getting a grant, you would have to revise the draft notice, I think.

MR BENNETT:   We would accept that, your Honour.

GUMMOW J:   Namely, we would be ruling on the question of power, not the exercise of it.  It would have to go back.

MR BENNETT:   Yes.  Unless there is any other matter I can assist your Honour on - can I mention one other aspect.  One of the cases that my friend relies upon is the Director of Public Prosecutions v The Gypsy Joker Motorcycle Club Incorporated, an unreported decision which he relies ‑ ‑ ‑

KIRBY J:   I think I have heard of that case before, Gypsy Joker.  It sort of sticks in the mind.

MR BENNETT:   It is a name that has a familiar ring to it.

KIRBY J:   A name to conjure with.

MR BENNETT:   Yes.

KIRBY J:   Law students would love it.  Is it right, otherwise they will lose it.

MR BENNETT:   The Gypsy Joker Motorcycle Club Incorporated succeeded in aspects of that appeal.  It was heard by his Honour Justice Templeman.  One of the points that we observed in that is that the Director in respect of – and this goes directly to the point about the Director making as to the codification and whether or not these are civil proceedings and the extent to which section 102(1) arises.  The Director actually submitted that, by virtue of the importation of effectively the Supreme Court Rules under the cover of section 102(1), then a freezing order could be the subject of appeal.  The Gypsy Joker Motorcycle Club sought to appeal against an order and desired access to affidavits in order to prosecute

the appeal.  The Director’s contention in that case would appear to us to be at odds with the contention in this case.

GUMMOW J:   Yes.  What strikes my mind is that the focus has not been sufficiently upon construing this particular statutory regime, namely what these sections do is create a new form of right and liability and invest a jurisdiction respecting it with powers expressed with this word “may”, which can mean must, can mean may, and if it means may, what is its content?

MR BENNETT:   We would say that is a matter of significance if only to the people of Western Australia who face the prospect of this confiscation type order being made, as I said, ex parte in circumstances where they have no access to the affidavit material upon which it is made.  If it please your Honours.

GUMMOW J:   Yes, thank you.  Yes, Mr Williams.

MR WILLIAMS:   Your Honours, we rely on our written submissions.  We submit there is no special leave point in this case.  The issues that my learned friend has raised both in his written submissions and today relate to the construction of the statute.

GUMMOW J:   He does start with a dissenting judgment of some thought, if I can put it that way, and detailed consideration by Justice Pullin, does he not?

MR WILLIAMS:   Well, can I take you to the dissenting judgment.

GUMMOW J:   All I am putting to you is it cannot be open and shut because there is a division of opinion in the Court of Appeal in this State.

MR WILLIAMS:   Well, our submission is in fact it is open and shut.  The judge at first instance, Justice Roberts‑Smith, and the President in their reasons both got it right, in our submission.  They recognised that what is created here is a special statutory jurisdiction and they have dealt with it on that basis.  The principles of construction that they applied were standard orthodox principles applied in a standard orthodox way.

GUMMOW J:   Not the principles that say that when you confer a jurisdiction and repose it in a superior court and you confer powers that are permissive, to use that word, the exercise of the power may be conditioned upon requirements the court makes.

MR WILLIAMS:   In that circumstance, our submission, and I think this is in the President’s reasons, is that – no, it is in Justice Pullin’s reasons - the discretion is exercised within the framework of the Act.

GUMMOW J:   Yes.

KIRBY J:   I do not think Justice Gummow is saying that you are without a feather to fly.  I mean, you have very strong arguments.  But on the other hand, there is an issue that Justice Gummow raised and it is not without significance in the current age that applications of this kind, unless there is a power to secure undertakings, disable people of the action of the Executive Government, so you have to look very closely at these things.

MR WILLIAMS:   Well, if that were correct, then the only time at which that discretion can be exercised is at the initial hearing, because subsequent to that, the Court’s powers are limited to the powers to vary and they do not include powers to award money for legal costs and they certainly do not ‑ ‑ ‑

KIRBY J:   Is it true that the hearing was held in camera, the original hearing?

MR WILLIAMS:   The original one was an ex parte application.

KIRBY J:   But not in camera.  It just was ex parte without anyone else happening to be there?

MR WILLIAMS:   The process involves the disclosure of evidence and on that basis I think the process is not one that is public in the ordinary sense.

GUMMOW J:   But the initial order was made for a short period, was it?

MR WILLIAMS:   The process involves the obtaining of a freezing order and then under the statute, if no objection is raised by the subject at the order within seven days, then the property becomes confiscable – 28 days, I am sorry - but if a freezing order is made, then there is a process under the Act.

KIRBY J:   They did not even originally offer any exception for sustenance.  I think two years passed before there was an exception agreed for that.  It is a disquieting development that actions are brought against a person and then they cannot get their sustenance, they cannot get costs and they cannot get the usual undertaking if the whole thing has gone off the tracks.  So that one would look very closely at legislation like this when it has reposed its powers or discretions in a Supreme Court of the State, a constitutional court.

MR WILLIAMS:   It may well be that, as the applicant has submitted, it has drastic effect, but it is very plain on the legislation, as the majority in the Court of Appeal held, that this is exactly what Parliament intended.

KIRBY J:   That might be the ultimate conclusion.  Justice Steytler has written a very persuasive analysis of the Act and it may lead the court to no other conclusion.  But the point that is raised by the application is whether it is not deserving of the attention of this Court given its general significance, its significance for the liberties and rights of individuals and the dissenting opinion of Justice Pullin.  You come to Canberra and you argue the case, Mr Williams.  It is always very nice to see you there.  I am surprised you are resisting this.

MR WILLIAMS:   Well, there are two issues only raised by the ground of appeal, whether there is power to, in effect, require an undertaking as to damages and whether there is power to award legal costs.  Now, the issue raised by Justice Gummow of the nature of the discretion, in our submission, does not import the question of an undertaking as to damages.  That is for the very strong reason relied upon by Justice Roberts‑Smith and the President that this was in the 1988 legislation, it is not in this legislation.

GUMMOW J:   That may be a powerful point, yes.

MR WILLIAMS:   The only way my learned friend suggests you can get to that is by relying on the provisions of section 102 which says simply that the proceedings are to be taken as “civil proceedings for all purposes”.  That is the same route by which he seeks to get to the powers of the Judicature Act powers under the Supreme Court Act.

GUMMOW J:   I do not think that is right.  It is a question of what is involved in the word “may” and it is a mistake immediately to start importing from outside.  It may be in a particular case for particular reasons it is appropriate to require some quid pro quo from the applicant.  It is easy to say it is in the nature of an undertaking as to damages, but that is often said not to be discretionary.  It is simply a requirement in some cases.

MR WILLIAMS:   Well, it is a requirement under the rules of the Supreme Court.

GUMMOW J:   Yes, that is right.

MR WILLIAMS:   It is not uncommon.

GUMMOW J:   Exactly, and that is part of the problem, I think, because I think, with respect to the President, it was an all-or-nothing situation that was being put.  You either import the so-called requirement of an undertaking for an interlocutory injunction or nothing.  I can understand why he said it cannot always be, so the other alternative is the only one.

MR WILLIAMS:   Well, he was cognisant of the fact that Parliament had previously provided for one and took a ‑ ‑ ‑

GUMMOW J:   Yes, but Parliament had before it the example of, say, the trade practices legislation with which we are all familiar which spelled it out.

KIRBY J:   I think you rely on the fact that there was, I think, a requirement for undertakings as to damages in the former Act.

MR WILLIAMS:   That is right.

KIRBY J:   And then it was slipped out, and you say the legislative history supports your interpretation.  That is definitely a factor, but this Court in a number of recent cases – I am thinking of the Esso Case concerning abolition of legal professional privilege – has said if Parliaments take away these very important traditional entitlements, they have to do it clearly as they have in the Trade Practices Act in this respect.

GUMMOW J:   It would be very easy for Parliament to say no undertaking as to damages.  You know more about this than we do, but legislators rather tend to let these things lie and they are quite unpleasant when they are put in cold print.

KIRBY J:   And if it is federal jurisdiction, we may have the constitutional point.

MR WILLIAMS:   Yes.  The legislation in each of the States and Territories and the Commonwealth, except in WA, South Australia and Northern Territory, all expressly provide for an undertaking and the WA legislation used to.

GUMMOW J:   Yes, willing to wound, but afraid to strike.

MR WILLIAMS:   Well, I can only adopt the word used by the President and by Justice Roberts‑Smith; it is deliberate.

GUMMOW J:   Yes, I understand.  You may will be right, Mr Williams.

KIRBY J:   But Justice Gummow’s point about afraid to strike was the point on which I think the Esso Case turned, that if Parliament does not make transparent its step of taking away people’s right to legal professional privilege, which may be something that would cause hesitation, then why should courts do it when there is a general word like “may”?  Courts should perhaps assert the continuance of the tradition that requires those who have the responsibility to take it away, because you do at least have arguably a situation where a person has his hands tied, bound and chained behind his back when he is being attacked by the Executive Government.  He cannot have his costs, he cannot have an undertaking, he has to face this draconian ordeal.

MR WILLIAMS:   Yes, if one sees a role for courts in changing what Parliament plainly intended, I think we are getting into ‑ ‑ ‑

GUMMOW J:   These words “plainly intended”, Mr Williams.

MR WILLIAMS:   Yes.  Well, the judgment of Justice Pullin I think gives some demonstration of the ‑ ‑ ‑

GUMMOW J:   And what Parliament plainly intended has to be understood in what we have been saying in 1994 and in many other cases, Shin Kobe Maru 181 CLR 421, for example, as to the way in which one reads these investments of jurisdiction in general terms. The message may not have sunk in.

MR WILLIAMS:   I think a careful reading of Justice Pullin’s decision will show that he has attenuated principles in order to get to the result that he can provide for an undertaking.

GUMMOW J:   Yes, you may well be right in the end, but the question is whether there is a special leave debate point.

MR WILLIAMS:   Our submission is there is not.

GUMMOW J:   Yes.

KIRBY J:   Did you agree that this is a matter in State jurisdiction and not in federal jurisdiction?

MR WILLIAMS:   It is a very interesting question.  Originally there were charges laid under what was then State law.  The events occurred in the year 2000.  Both State law and federal law charges were originally laid, then you get, as my learned friend explained, the introduction of the Corporations Act which substitutes rights under the State legislation for rights under the Commonwealth legislation.  But the application for a freezing order is made under State legislation but one can, I think, see an argument that it might be a matter arising under federal law.  In fact, looking at the Corporations Law, it probably is in constitutional terms, but where that goes does not seem to be relevant to anything ‑ ‑ ‑

GUMMOW J:   There is no challenge raised on that ‑ ‑ ‑

MR WILLIAMS:   No.

KIRBY J:   There may one day be a challenge on this.  You are making the access to the federal judicature really ephemeral and uncertain and doubtful by removing all the weapons that a person individually normally has to approach the judicial branch for decisions.  You can take away their costs, you can take away their right to an undertaking as to damages.  I mean, why bother to have trials?  Is the applicant entitled to legal aid or legal assistance, do you know?

MR WILLIAMS:   I cannot answer that question. 

KIRBY J:   He only just got the sustenance two years afterwards.  What, he was living on bread and dripping, I suppose, for two years?

GUMMOW J:   Or friends.

MR WILLIAMS:   I do not think it would be safe to make any assumptions about the circumstances of anybody subject to a confiscation order.

GUMMOW J:   Yes, thank you, Mr Williams.  Yes, Mr Bennett.

MR BENNETT:   It is wrong to say that the discretion can only be exercised on the ex parte application.  Order 59 rule 23 of the rules of the Western Australian Supreme Court entitle the court to set aside an ex parte order so when served, the person the subject of the order can apply for, in essence, a hearing de novo of the original application for the grant of the freezing order.  The importation of the word “may” entitles the court to consider the extent of the person’s property that can be frozen and, as Justice Pullin observed, the court, if it was concerned about a person being given a position to defend himself and legal costs to defend himself, could carve out from the frozen property and leave unfrozen sufficient of the assets to pay legal costs, direct that they be left unfrozen for the payment of legal costs.  So the court can give consideration, we would say, by the word “may” to the issue of legal costs. 

The difficulty for Mr Mansfield which was observed in 2004, even though he lived on the charity of friends, because of the form of the freezing order that was made, which I should answer your Honour Justice Gummow, was a freezing order until the hearing of the criminal benefits application, which is still not heard and the Director still intends to amend a statement of claim to take account of the fact that charges have been withdrawn and new

charges laid against Mr Mansfield.  We are now three years down the track and we are still in pleadings form in relation to that.  The order was until the disposition of the matter, but ‑ ‑ ‑

GUMMOW J:   What is the nature of the subject property here?

MR BENNETT:   The subject property is everything Mr Mansfield ‑ ‑ ‑

GUMMOW J:   Yes, I know, but what is that?

MR BENNETT:   Cars, house, jewellery, money, shares, particularly shares.  The insider trading was said to be in relation to various shares.

GUMMOW J:   Yes.

MR BENNETT:   And it was a subject of bank accounts which had some $800,000 in it at one stage.  That is the nature of the matter.  Because the freezing order extends to future acquired property, if a friend handed Mr Mansfield an apple, it was frozen property as he lifted it to his lips.  There is a five-year gaol sentence for interfering in frozen property.  So even the benefit of friends ‑ ‑ ‑

GUMMOW J:   Is there any facility for registering these orders against the Torrens system land?

MR BENNETT:   Yes, there is, which is why the jurisdiction for real property vested in the Supreme Court and not in ‑ ‑ ‑

GUMMOW J:   Yes, I wondered that.

MR BENNETT:   He is not eligible for legal aid because his assets that he owns in his own name exceed the assets that are available on a statement of his assets.  He just simply cannot have access to his assets for the purpose of paying legal fees.

GUMMOW J:   Yes, very well.  Yes, Mr Bennett, anything else?

MR BENNETT:   No, thank you, your Honour.

GUMMOW J:   Very well.  There will be a grant of special leave in this matter, but the appellant should take on board what was said as to the present deficiency of the draft notice of appeal at pages 66 to 68 of the application book.  This will be a one day case, I imagine, gentlemen.  We will adjourn until 9.15 tomorrow morning.

AT 4.32 PM THE MATTER WAS CONCLUDED