Mansfield v The Director of Public Prosecutions for Western Australia

[2005] WASCA 79

MANSFIELD -v- THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2005] WASCA 79

Link to Appeal :

Reported Decision:	(2005) 31 WAR 97
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 79
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:187/2004	Heard:	14 MARCH 2005
Coram:	STEYTLER P WHEELER JA PULLIN JA	Delivered:	29/04/05
No of pages:	35	Judgment Part:	1 of 1
Result:	Application for leave to appeal allowed in respect of grounds 4 and 5 Matter to be returned to a single Judge of the Supreme Court if the parties cannot agree between themselves Application for leave to appeal otherwise dismissed
Category:	A
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Parties:	NIGEL CUNNINGHAM MANSFIELD THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Catchwords:	Criminal law Confiscation of property Freezing order Money released to meet "reasonable living expenses" Whether Court has power to require Director of Public Prosecutions to provide undertaking as to damages as condition of grant or continuation of freezing order Whether principles and rules relating to undertaking as to damages and grant of injunctions also apply to freezing orders Whether "reasonable living and business expenses" in s 45 of Criminal Property Confiscation Act 2000 (WA) includes legal costs or expenses Whether Court should entertain application for release of funds to pay credit card debt as "reasonable living expenses" Construction of s 45 and s 102 of Criminal Property Confiscation Act 2000 (WA)
Legislation:	Confiscation Act 1997 (Vic), s 14(7) Confiscation of Proceeds of Crime Act 1989 (NSW), s 43(8) Corporations Act 2001 (Cth), s 1002G, s 1311 Crime (Confiscation of Profits) Act 1993 (Tas), s 27(7) Crimes (Confiscation of Profits) Act 1988 (WA), s 20, s 20(11) Criminal Assets Confiscation Act 1996 (SA) Criminal Proceeds Confiscation Act 2002 (Qld), s 31(2)(b) Criminal Property Confiscation Act 2000 (WA), s 4, s 7, s 9, s 10, s 11, s 14, s 15, s 21, s 22, s 24, s 34, s 34(3), s 43, s 43(1), s 43(1)(a), s 43(3)(1), s 45, s 58(1), s 68(1), s 82, s 83, s 84, s 89(1), s 102, s 102(1), s 102(2), s 137 Criminal Property (Consequential Provisions) Act 2000 (WA) Crown Proceedings Act 1947 (UK) Crown Suits Act 1947 (WA) Customs Act 1901 (Cth), s 243E, s 243(4)(c) Director of Public Prosecutions Act 1991 (WA), s 10, s 16 International Covenant on Civil and Political Rights 1966, Article 14 Interpretation Act 1984 (WA), s 19(1), s 19(2)(e), s 19(2)(f) Misuse of Drugs Act 1981 (WA), s 32A(1) Proceeds of Crime Act 1987 (Cth), s 44(1), s 44(10) Proceeds of Crime Act 2002 (Cth), s 21(1) Rules of the Supreme Court 1971 (WA) Supreme Court Act 1935 (WA), s 4, s 21(3), s 21(4), s 24(6), s 24(7), s 101
Case References:	Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 Beckwith v The Queen (1976) 135 CLR 569 Brennan v The King (1936) 55 CLR 253 Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225 Cameron v Cole (1943) 68 CLR 571 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363 Cook v Cook (1986) 162 CLR 376 Deputy Commission of Taxation v Kunz (1990) 51 A Crim R 13 Dietrich v The Queen (1992) 177 CLR 292 Director of Public Prosecutions for Western Australia v Mansfield [2004] WASC 116 Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118 Director of Public Prosecutions v Toro-Martinez (1993) 33 NSWLR 82 Director of Public Prosecutions v Vella (1993) 61 SASR 379 Ex parte McGavin (1945) 46 SR (NSW) 58 F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 Forbes v Traders' Finance Corporation Ltd (1971) 126 CLR 429 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 House v The King (1936) 55 CLR 499 Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 Kirk v Commissioner of Australian Federal Police (1988) 19 FCR 530 Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1991] 3 WLR 985 Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227 McCleary v Commonwealth Director of Public Prosecutions (1998) 20 WAR 288 National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271 Newmarch v Atkinson (1918) 25 CLR 381 Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 R v Parker (1994) 75 A Crim R 437 Re Cannon [1999] 1 Qd R 247 Re Hassell; Ex parte Norman & Pride No 2 (1984) 2 FCR 319 Securities and Investments Board v Lloyd-Wright [1993] 4 All ER 210 Smith v Day (1882) 21 Ch D 421 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 State of Queensland v Rodd [2004] QSC 312 Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 Ward v Williams (1955) 92 CLR 496 Waugh v Kippen (1986) 160 CLR 156 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 Australian Securities and Investments Commission v Mauer­Swisse Securities Ltd (2002) 42 ACSR 605 Baldry v Jackson [1976] 2 NSWLR 415 Bishop v Chung Brothers (1907) 4 CLR 1262 Bridge Pump Co Pty Ltd v Myles Southwest Fuel Supplies Pty Ltd, unreported; SCt of WA (Malcolm CJ, Kennedy & Owen JJ), Library No 97063, 22 October 1997 Broken Hill South Ltd v Deputy Commissioner of Taxation (NSW) (1937) 56 CLR 337 Bropho v The State of Western Australia (1990) 171 CLR 1 Charlie v The Queen (1999) 199 CLR 387 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Director of Public Prosecutions for Western Australia v Mansfield [2003] WASC 186 Director of Public Prosecutions v Tregenza (2002) 84 SASR 346 Farquharson v The Queen [1973] AC 786 Giannarelli v Wraith (1988) 165 CLR 543 Grey v Pearson (1857) 6 HL Cas 61 Hall v Knight & Baxter [1913] All ER Rep 381 Hanlon v Wadlow Ltd and Miller [1961] SASR 94F Helton v Allen (1940) 63 CLR 691 Heyden v Teplitzky (1997) 74 FCR 7 Houssein v Under Secretary, Department of Industrial Relations and Technology and Industrial Commission of NSW (1982) 148 CLR 88 Mellifont v Attorney-General (Queensland) (1991) 173 CLR 289 Permanent Trustee Co Ltd v Western Australia (2002) 26 WAR 1 R v Barlow (1977) 188 CLR 1 R v Bolton; Ex parte Beane (1987) 162 CLR 514 Re Highfield Commodities Ltd [1984] 3 All ER 884 Re Smith; Ex parte Director of Public Prosecutions (No 2) [2004] WASC 147 Re Will of Gilbert (1946) 46 SR (NSW) 318 Saraswati v The Queen (1991) 172 CLR 1 Sargood Brothers v Commonwealth (1910) 11 CLR 258 Soil Conservation Authority v Read [1979] VR 557 Sungravure Pty Ltd v Middle East Airlines Airliban Sal (1975) 134 CLR 1 Thompson v Thompson (1942) 59 WN (NSW) 219 Wentworth v New South Wales Bar Association (1992) 172 CLR 239 Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40 Wilson v Metaxas [1989] WAR 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MANSFIELD -v- THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2005] WASCA 79 CORAM : STEYTLER P

WHEELER JA
PULLIN JA

HEARD : 14 MARCH 2005 DELIVERED : 29 APRIL 2005 FILE NO/S : FUL 187 of 2004 BETWEEN : NIGEL CUNNINGHAM MANSFIELD

Applicant

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : ROBERTS-SMITH J

Citation : THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- MANSFIELD [2004] WASC 255

File No : CIV 1977 of 2002

(Page 2)

Catchwords:

Criminal law - Confiscation of property - Freezing order - Money released to meet "reasonable living expenses" - Whether Court has power to require Director of Public Prosecutions to provide undertaking as to damages as condition of grant or continuation of freezing order - Whether principles and rules relating to undertaking as to damages and grant of injunctions also apply to freezing orders - Whether "reasonable living and business expenses" in s 45 of Criminal Property Confiscation Act 2000 (WA) includes legal costs or expenses - Whether Court should entertain application for release of funds to pay credit card debt as "reasonable living expenses" - Construction of s 45 and s 102 of Criminal Property Confiscation Act 2000 (WA)

Legislation:

Confiscation Act 1997 (Vic), s 14(7)

Confiscation of Proceeds of Crime Act 1989 (NSW), s 43(8)
Corporations Act 2001 (Cth), s 1002G, s 1311
Crime (Confiscation of Profits) Act 1993 (Tas), s 27(7)
Crimes (Confiscation of Profits) Act 1988 (WA), s 20, s 20(11)
Criminal Assets Confiscation Act 1996 (SA)
Criminal Proceeds Confiscation Act 2002 (Qld), s 31(2)(b)
Criminal Property Confiscation Act 2000 (WA), s 4, s 7, s 9, s 10, s 11, s 14, s 15, s 21, s 22, s 24, s 34, s 34(3), s 43, s 43(1), s 43(1)(a), s 43(3)(1), s 45, s 58(1), s 68(1), s 82, s 83, s 84, s 89(1), s 102, s 102(1), s 102(2), s 137
Criminal Property (Consequential Provisions) Act 2000 (WA)
Crown Proceedings Act 1947 (UK)
Crown Suits Act 1947 (WA)
Customs Act 1901 (Cth), s 243E, s 243(4)(c)
Director of Public Prosecutions Act 1991 (WA), s 10, s 16
International Covenant on Civil and Political Rights 1966, Article 14
Interpretation Act 1984 (WA), s 19(1), s 19(2)(e), s 19(2)(f)
Misuse of Drugs Act 1981 (WA), s 32A(1)
Proceeds of Crime Act 1987 (Cth), s 44(1), s 44(10)
Proceeds of Crime Act 2002 (Cth), s 21(1)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA), s 4, s 21(3), s 21(4), s 24(6), s 24(7), s 101

Result:

Application for leave to appeal allowed in respect of grounds 4 and 5

Matter to be returned to a single Judge of the Supreme Court if the parties cannot agree between themselves


(Page 3)

Application for leave to appeal otherwise dismissed

Category: A

Representation:

Counsel:

Applicant : Mr M L Bennett
Respondent : Mr TA Staples

Solicitors:

Applicant : Bennett & Co
Respondent : State Director of Public Prosecutions

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

Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249
Beckwith v The Queen (1976) 135 CLR 569
Brennan v The King (1936) 55 CLR 253
Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225
Cameron v Cole (1943) 68 CLR 571
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363
Cook v Cook (1986) 162 CLR 376
Deputy Commission of Taxation v Kunz (1990) 51 A Crim R 13
Dietrich v The Queen (1992) 177 CLR 292
Director of Public Prosecutions for Western Australia v Mansfield [2004] WASC 116
Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118
Director of Public Prosecutions v Toro-Martinez (1993) 33 NSWLR 82
Director of Public Prosecutions v Vella (1993) 61 SASR 379
Ex parte McGavin (1945) 46 SR (NSW) 58
F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
Forbes v Traders' Finance Corporation Ltd (1971) 126 CLR 429


(Page 4)

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269
House v The King (1936) 55 CLR 499
Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309
Kirk v Commissioner of Australian Federal Police (1988) 19 FCR 530
Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1991] 3 WLR 985
Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227
McCleary v Commonwealth Director of Public Prosecutions (1998) 20 WAR 288
National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271
Newmarch v Atkinson (1918) 25 CLR 381
Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134
Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318
Pambula District Hospital v Herriman (1988) 14 NSWLR 387
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
R v Parker (1994) 75 A Crim R 437
Re Cannon [1999] 1 Qd R 247
Re Hassell; Ex parte Norman & Pride No 2 (1984) 2 FCR 319
Securities and Investments Board v Lloyd-Wright [1993] 4 All ER 210
Smith v Day (1882) 21 Ch D 421
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
State of Queensland v Rodd [2004] QSC 312
Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177
Ward v Williams (1955) 92 CLR 496
Waugh v Kippen (1986) 160 CLR 156

Case(s) also cited:

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Australian Securities and Investments Commission v Mauer­Swisse Securities Ltd (2002) 42 ACSR 605
Baldry v Jackson [1976] 2 NSWLR 415
Bishop v Chung Brothers (1907) 4 CLR 1262


(Page 5)

Bridge Pump Co Pty Ltd v Myles Southwest Fuel Supplies Pty Ltd, unreported; SCt of WA (Malcolm CJ, Kennedy & Owen JJ), Library No 97063, 22 October 1997
Broken Hill South Ltd v Deputy Commissioner of Taxation (NSW) (1937) 56 CLR 337
Bropho v The State of Western Australia (1990) 171 CLR 1
Charlie v The Queen (1999) 199 CLR 387
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Director of Public Prosecutions for Western Australia v Mansfield [2003] WASC 186
Director of Public Prosecutions v Tregenza (2002) 84 SASR 346
Farquharson v The Queen [1973] AC 786
Giannarelli v Wraith (1988) 165 CLR 543
Grey v Pearson (1857) 6 HL Cas 61
Hall v Knight & Baxter [1913] All ER Rep 381
Hanlon v Wadlow Ltd and Miller [1961] SASR 94F
Helton v Allen (1940) 63 CLR 691
Heyden v Teplitzky (1997) 74 FCR 7
Houssein v Under Secretary, Department of Industrial Relations and Technology and Industrial Commission of NSW (1982) 148 CLR 88
Mellifont v Attorney-General (Queensland) (1991) 173 CLR 289
Permanent Trustee Co Ltd v Western Australia (2002) 26 WAR 1
R v Barlow (1977) 188 CLR 1
R v Bolton; Ex parte Beane (1987) 162 CLR 514
Re Highfield Commodities Ltd [1984] 3 All ER 884
Re Smith; Ex parte Director of Public Prosecutions (No 2) [2004] WASC 147
Re Will of Gilbert (1946) 46 SR (NSW) 318
Saraswati v The Queen (1991) 172 CLR 1
Sargood Brothers v Commonwealth (1910) 11 CLR 258
Soil Conservation Authority v Read [1979] VR 557
Sungravure Pty Ltd v Middle East Airlines Airliban Sal (1975) 134 CLR 1
Thompson v Thompson (1942) 59 WN (NSW) 219
Wentworth v New South Wales Bar Association (1992) 172 CLR 239
Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285


(Page 6)

1 STEYTLER P: This application for leave to appeal raises a number of questions of construction of the Criminal Property Confiscation Act 2000 (WA) ("the Act").

Relevant structure of the Act

2 As its long title reflects, the Act is designed to provide for the confiscation of property acquired as a result of criminal activity or which has been used for criminal activity. It also provides for the reciprocal enforcement of Australian legislation relating to the confiscation of profits of crime and the confiscation of other property.

3 Section 4 of the Act identifies the kinds of "confiscable" property. It mentions property equal in value to any amount by which the total value of a person's wealth exceeds the value of the person's lawfully acquired wealth; property, services, advantages and benefits obtained by a person who has been involved in the commission of a "confiscation offence" (defined to include an offence punishable by imprisonment for 2 years or more or any other offence that is prescribed for the purposes of the definition of that term); property used in or in connection with the commission of a confiscation offence, or property of equal value; property derived directly or indirectly from the commission of a confiscation offence; and property owned, effectively controlled or given away by a person who is declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA), or who absconds before a declaration of that kind can be made.

4 Under s 11, the Director of Public Prosecutions ("DPP") may apply to the Court for an "unexplained wealth declaration" against a person and, when the Court makes such a declaration, the respondent is liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the respondent's unexplained wealth (s 14).

5 Under s 15 the DPP may apply to the Court for a "criminal benefits declaration" and, under s 20, when the Court makes such a declaration, the respondent is liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the criminal benefit acquired by the respondent.

6 Under s 21 of the Act the DPP may apply to the Court for a "crime-used property substitution declaration" against a person and, by s 22, the Court must declare that property owned by the respondent is available for confiscation instead of crime-used property if the crime-used property is not available and it is more likely than not that the respondent

(Page 7)

"made criminal use of the crime-used property". When the Court makes such a declaration (as it must do if the prerequisites to it are satisfied), the respondent is, by s 24, liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the crime-used property.

7 Section 34 of the Act provides for the issue of freezing notices. As their name suggests, notices of this kind prevent the recipient from dealing with property during their currency. They may be issued if, inter alia, there are reasonable grounds for suspecting that the property is "crime-used" or "crime-derived". Also, by s 34(3) a Justice of the Peace may issue a freezing notice for all or any property that is owned or effectively controlled by a person, or which that person has at any time given away, if the person has been charged with an offence or is likely to be so within 21 days after the day on which the freezing notice is issued and if the person could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act if he or she is convicted of the offence.

8 By s 7, frozen property is confiscated if an objection to the confiscation of the property is not filed on or before the 28th day after service upon the person concerned of a freezing notice or freezing order, as the case may be. Confiscated property vests absolutely in the State (ss 9 and 10).

9 Section 58(1) of the Act provides for the making of examination orders by the Court so as to facilitate the examination of a person about, inter alia, the nature, location and source of frozen property or other property which is suspected on reasonable grounds of being confiscable.

10 Section 68(1) makes provision for "monitoring" and "suspension" orders enabling the DPP to obtain information about, and to monitor transactions of, persons who are reasonably suspected of having been, or of being about to be, involved in the commission of a confiscation offence or of having acquired, or being about to acquire, crime-derived property or of having benefited, or being about to benefit, from the commission of a confiscation offence.

11 Under s 43 of the Act the Court may make a freezing order in respect of property if an examination order, a monitoring order or a suspension order is in force in relation to the property or if the DPP advises the Court that an application for one or other of those orders has been made in relation to the property or is likely to be made in relation to the property within 21 days after the freezing order is made.

(Page 8)

12 By s 89(1) the DPP has responsibility for the control and management of frozen property unless the Court otherwise orders. Section 45 of the Act lists a number of directions or orders which a Court may make in respect of frozen property, including an order making provision for meeting the reasonable living and business expenses of the owner of the property.

13 Once a copy of a freezing order has been served, any person objecting to it must, within 28 days after service, or such further time as might be allowed by the Court, file his or her objection to the confiscation of the frozen property. Provision is made in ss 82, 83 and 84 for the release of frozen property upon the ground, inter alia, that it is more likely than not that it is not crime-used, or crime-derived or where the Court finds that it is more likely than not that the person who is or will be the respondent to an unexplained wealth declaration, criminal benefits declaration or crime-used property substitution declaration does not own or effectively control the property and has not at any time given it away (ss 82, 83 and 84).

The freezing order made in this case and its subsequent variation

14 On 12 July 2002 a freezing order was made under s 43 of the Act in respect of all property owned or effectively controlled by the applicant. It was made upon two grounds. The first was that the DPP had advised the Court that an application for an examination order had been made in relation to the property proposed to be frozen (s 43(1)(a)). The second was that an application against the applicant for a criminal benefits declaration was likely to be made within 21 days in relation to his property (s 43(3)(c)).

15 The application for a criminal benefits declaration, when brought against the applicant, was supported by a statement of claim. That document, as it has since been amended, pleads that between 9 June and about 3 August 2000 the applicant engaged in a series of insider trading offences contrary to the then provisions of ss 1002G and 1311 of the Corporations Act 2001 (Cth).

16 By a consent order made by the Supreme Court on 18 February 2004 the freezing order was varied to authorise the release of $2500 per fortnight in order to meet the reasonable living expenses of the applicant and his wife. An amount of $102,500 was released in order to meet their reasonable living expenses between 12 July 2002 and 13 February 2004.

(Page 9)

The application for a further variation and for an undertaking as to damages

17 By summons issued on 16 September 2004 the applicant applied for a further variation to the freezing order so as to authorise the release of an amount of $47,688.07. He wanted this sum in order to enable him to pay a debt which he owed to Citibank Pty Ltd ("Citibank"). The summons also sought an order requiring the DPP to provide an undertaking as to damages as a condition of the continuation of the freezing order, pending the final disposition of the proceeding.

18 The summons was supported by an affidavit sworn by the applicant's then solicitor, Mr Michael Tudori. In his affidavit Mr Tudori spoke of the "position in relation to Citibank Pty Ltd". He said (par 14 of the affidavit):

"Mansfield [the applicant] has informed me and I believe that:

(a) Prior to release of monies in accordance with the variation order, he relied on a Citibank … credit facility to meet some of the living expenses for himself and his wife. …

(b) Based on his inability to repay Citibank in accordance with the terms of the credit facility, that company commenced recovery proceedings against him in the District Court of New South Wales. …

(c) Citibank obtained a default judgment against Mansfield on or about 3 December 2003.

(d) Citibank served a bankruptcy notice on Mansfield on or about 4 February 2004. …

(e) Following the service of the bankruptcy notice, Mansfield had a number of discussions with representatives of Citibank in which he explained the nature of his predicament.

(f) Citibank served a creditor's petition on Mansfield on or about 8 September 2004. It was presented to the Court on 24 August 2004. …"

19 He went on to say that he had invited the DPP to consent to a variation of the freezing order so as to authorise the payment of

(Page 10)

$47,688.07 to Citibank. He also said that he had been corresponding with Citibank's solicitors.

20 Shortly before the summons came on for hearing, the applicant's counsel lodged an outline of submissions. The outline foreshadowed an amendment to the summons seeking a further order, varying the freezing order, so as to authorise the release of funds to the applicant in order to enable him to "retain an expert" and to fund his defence of the proceedings brought against him under the Act.

The Judgment of the Primary Judge

21 The primary Judge, when he came to give his judgment, dealt first with the application for an undertaking as to damages. He dismissed it. He said ([43] - [45] of his judgment) that:

"It would be entirely inconsistent with the purpose and objects of the Act and the detailed regime established by it, to regard freezing orders as merely a form of statutory injunction and subject to the same rules and principles as ordinarily apply to injunctions.

This conclusion gains further support from the fact the legislation which the Criminal Confiscation Act replaced, the Crimes (Confiscation of Profits) Act 1988 (WA), specifically required the DPP to provide an undertaking, but that provision was not included in the Criminal Confiscation Act. That omission must be taken to have been deliberate.

In reaching this conclusion, I do not overlook s 102 of the Criminal Confiscation Act which provides that proceedings on an application under it are taken to be civil proceedings for all purposes. That seems to me clearly to be directed only to the way in which applications under the Act are to be made, processed and dealt with in a procedural sense. Even then, for example, procedural rules which were expressly or implicitly in conflict with the provisions of the Act itself could not prevail over those provisions."

22 His Honour next dealt with what he referred to as "the Citibank issue". He mentioned that the only suggestion in the material before him as regards the make-up of the debt owed to Citibank was that it had been used for "living expenses" and that the DPP had opposed the making of

(Page 11)

any order in the absence of evidence detailing how the money had been spent. He went on to say ([48] to [50] of his judgment):

"Mr Heath [the then counsel for the applicant] conceded that he was in no position to throw any light on that and accepted it ought to have been done by way of affidavit. He foreshadowed, but did not make, an application for an adjournment 'if it were to be a problem'. Ms Low [counsel who had then appeared on behalf of the DPP] made submissions opposing the application.

The application having been made and argued, I accepted the submission of the DPP that it should be dealt with on its merits.

In the absence of any evidence as to how the money was spent, and in light of the opposition by the DPP to the making of an order, I am of the view that it would be inappropriate to make one. The application in that regard must likewise be dismissed."

23 The primary Judge then turned to the application to amend the summons. He referred, first, to s 45 of the Act, which reads as follows:

"Scope of freezing orders

In a freezing order, the court may do any or all of the following -

(a) direct that any income or other property derived from the property while the order is in force is to be treated as part of the property;

(b) if the property is moveable - direct that the property is not to be moved except in accordance with the order;

(c) appoint the DPP, the Public Trustee or the Commissioner of Police to manage the property while the order is in force;

(d) give any other directions necessary to provide for the security and management of the property while the order is in force;

(e) provide for meeting the reasonable living and business expenses of the owner of the property."

(Page 12)

24 His Honour went on to say ([53] - [56] of his judgment):

"Given the express authorisation for the variation of freezing orders to enable expenditure to meet the reasonable living and business expenses of the owner of the property, I consider it follows inevitably that the legislature intended that the release of frozen funds be confined to matters of that kind.

To the extent the lack of any express reference in the legislation to the release of funds to be applied to payment of legal costs might be suggested to create an ambiguity in the legislation, the point is clearly disposed of by reference to the Second Reading Speech of Mr Barron-Sullivan in the Legislative Assembly on 29 June 2000 ('Hansard' p 8611 at p 8613) in which he expressly stated:


'… property frozen under a freezing order can be released by a court only for payment of living or business expenses. No frozen property can be released for payment of legal expenses.'

That I think puts the matter beyond doubt.

There is simply no power under the Act enabling an order to be made for the release of funds for the purpose sought. That application must be refused."

Proposed Grounds of Appeal

25 If granted leave to appeal, the applicant proposes to rely upon four grounds, as follows:

"1. The … [primary Judge] erred in law in determining that this Honourable Court has no power to order that the Respondent (Applicant) provide an undertaking as to damages as a condition for the continuation of the freezing order dated 12 July 2002 and varied on 18 February 2004.

2. The … [primary Judge] erred in law in finding that this Honourable Court has no power to vary the freezing order dated 12 July 2002 for the purpose of releasing funds to meet the reasonable legal costs of the Appellant (Respondent) incurred in objecting to the freezing order

(Page 13)

dated 12 July 2002 (as varied) and defending related criminal proceedings.

3. … [This ground was abandoned during the course of the appeal]

4. The … [primary Judge] erred in fact in finding that counsel for the Appellant (Respondent) had not made an application to adjourn the hearing of the Appellant's (Respondent's) application to vary the freezing order dated 12 July 2002 to authorise the release of funds to repay the Appellant's (Respondent's) debt to Citibank Pty Ltd to allow evidence to be filed in support of the application.

5. The … [primary Judge] erred in law in:


5.1 dismissing the Appellant's (Respondent's) application for an adjournment to allow the Appellant (Respondent) to adduce affidavit evidence in support of his application to vary the freezing order dated 12 July 2002 to authorise the release of funds to repay the Appellant's (Respondent's) debt to Citibank; and

5.2 dismissing the Appellant's (Respondent's) application to vary the freezing order dated 12 July 2002 to authorise the release of funds to repay the Appellant's (Respondent's) debt to Citibank Pty Ltd in the absence of evidence from the Appellant (Respondent)."

Undertaking as to Damages

26 I will deal first with ground 1, raising the issue whether or not the Court has power to require the DPP to provide an undertaking as to damages as a condition of the grant of, or continuation of, a freezing order.

27 Assuming (without deciding) that the DPP has authority, under the Director of Public Prosecutions Act 1991 (WA) ("the DPP Act"), to give an undertaking as to damages, I am not persuaded that the Court has the power to require an undertaking of that kind as a condition of the grant or continuation of a freezing order.

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28 Counsel for the applicant referred us to a good deal of authority underlining the importance of undertakings as to damages as a condition of the grant of an interlocutory injunction, given that injunctions of that kind are granted before the rights of the parties have been finally determined: see, for example, Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 at 311, per Gibbs J, and National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271 at 277, per Mason CJ, Brennan and Deane JJ (a case which involved the appointment of a receiver by an interlocutory order).

29 There is no doubt that undertakings are important in cases of infringement of individual rights by interlocutory order. Nor can there be any doubt that freezing orders of the kind made in this case substantially infringe ordinary proprietary rights before any final determination of those rights is made and consequently have the potential to work a grave injustice. However, these orders are creatures of statute and it seems to me to be plain, from the legislative history of the Act, that the legislature, in framing the Act, deliberately chose not to give to the Court the power to impose, as a condition, the giving of an undertaking as to damages.

30 The predecessor to the Act is the Crimes (Confiscation of Profits) Act 1988 (WA) ("the repealed Act"). That Act was repealed by the Criminal Property (Consequential Provisions)Act 2000 (WA), which was enacted simultaneously with the Criminal Property Confiscation Act. As was mentioned by the primary Judge, the repealed Act made provision for the requiring of an undertaking as to damages as a condition of the grant of a restraining order. Section 20 of that Act empowered the Court to grant a restraining order preventing a person who had been convicted of a serious offence, or who had been, or was about to be, charged with a serious offence, from dealing with his or her property. Section 20(11) gave to the Court a discretion to refuse to make a restraining order if the Crown, or the applicant on behalf of the Crown, refused or failed to give to the Court such undertakings as the Court thought appropriate concerning the payment of damages or costs, or both, in relation to the making and operation of the order. In making provision for an undertaking, the repealed Act accorded with similar legislation in the Commonwealth and in most other States. So far as the Commonwealth is concerned, s 44(1) and s 44(10) of the Proceeds of Crime Act 1987 (Cth) and s 21(1) of the Proceeds of Crime Act 2002 (Cth) make provision of that kind. So, too, do s 31(2)(b) of the Criminal Proceeds Confiscation Act 2002 (Qld), s 43(8) of the Confiscation of Proceeds of Crime Act 1989 (NSW), s 14(7) of the Confiscation Act 1997 (Vic) and s 27(7) of the Crime (Confiscation of Profits) Act 1993 (Tas). The only State, apart

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from Western Australia, in which similar legislation makes no provision for an undertaking is South Australia: see the Criminal Assets Confiscation Act 1996 (SA). Counsel for both parties were unable to locate any case in which there has been consideration of the question whether or not there is power under the South Australian Act to require an undertaking as a condition of the grant of an order.

31 Given the existence in the repealed Act of an express power to require an undertaking (and in similar legislation in most other jurisdictions), it is difficult to imagine that the omission in the current Act was other than deliberate. Moreover, s 137 of the current Act provides that a person on whom the Act confers a function (the DPP is empowered by s 41(1) to apply for a freezing order) "is not personally liable in civil proceedings, and the State is not liable, for anything done or default made by the person in good faith for the purpose of carrying this Act into effect". If the DPP is not to be personally liable in civil proceedings, and if neither the State nor the DPP is to be civilly liable for anything done (which, it seems, would include the making of an application for a freezing order) or any default made in good faith for the purpose of carrying the Act into effect, it is difficult to see what purpose might be served by requiring an undertaking as to damages as a condition of the grant of a freezing order other, perhaps, than in a case in which bad faith is alleged. However, if the legislature had intended that there should be power to require an undertaking in this last, and limited, category of cases, then, given the legislative history, it seems very probable that it would have said so.

32 Counsel for the applicant urged upon us the proposition (also urged upon the primary Judge) that the omission in the Act of any reference to an undertaking as to damages was brought about only because s 102(1) of the Act provides that proceedings on an application under the Act are taken to be civil proceedings "for all purposes". He submitted that this provision imports the operation of the Rules of the Supreme Court1971 (WA), including O 52 r 9 thereof which provides that, unless the Court otherwise orders, upon the grant of an interlocutory injunction the orders shall include an undertaking as to damages in the form there provided for.

33 I am unable to accept that s 102 has that effect. If the legislature had intended to empower the Court to require the giving of an undertaking as to damages, it would, in my opinion, have done so by way of an express provision, as it did in the repealed Act. The purpose of s 102 seems to me to be no more than that of making it plain that proceedings on an application under the Act are to be taken to be civil proceedings, and not

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criminal proceedings. That this is so is supported by the provisions of s 102(2) of the Act, which read as follows:

"Except in relation to an offence under this Act -

(a) a rule of construction that is applicable only in relation to the criminal law does not apply in the interpretation of this Act;

(b) the rules of evidence applicable in civil proceedings apply in proceedings under this Act;

(c) the rules of evidence applicable only in criminal proceedings do not apply in proceedings under this Act; and

(d) a question of fact to be decided by a court in proceedings on an application under this Act is to be decided on the balance of probabilities."

34 Moreover, the construction advanced on behalf of the applicant appears to me to be inconsistent with the terms of s 137 of the Act, to which I have earlier referred. While that section might be read as being consistent with the need for an undertaking as to damages in order to cover the possibility of bad faith, its existence, taken together with the comparison between the provisions of the Act and those of the repealed Act, leads me to the conclusion, earlier expressed, that the Court was not intended to be empowered to require the grant of an undertaking of any kind.

35 I should add that, if I am wrong in my construction of the Act, and if it is open to the Court to require an undertaking, that undertaking would, given the terms of s 137, have to be required from the State and not, as ground 1 of the grounds of appeal contends, from the DPP. Also, the existence of s 137 of the Act would be "a clear pointer in the exercise of the discretion" in circumstances in which, as in this case, there is no allegation of bad faith: cfSecurities and Investments Board v Lloyd-Wright [1993] 4 All ER 210 at 214, per Morritt J.

36 It follows that ground 1 has not been made out.

Ground 2 - Legal Costs

37 As to ground 2, it might be thought to be remarkable that the legislature should have seen fit to deny to a person who objects to a

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freezing order the right to obtain access to his or her funds for the purpose of obtaining legal assistance for that purpose. This is more especially so in circumstances in which an order of that kind can be obtained on the strength, merely, of the existence of an examination order, monitoring order or suspension order (as to which see s 43(1)(a) of the Act, read with ss 58(1), 68(1) and 68(2)) or even on the strength, only, of advice from the DPP that an application for an examination order, a monitoring order or a suspension order has been made, or is likely to be made within 21 days, in relation to the property (s 43(1)(b)). However, on the face of it, that is what it seems to have done.

38 I have said that s 45 of the Act, quoted above, lists a number of directions or orders which the Court may make, including an order making provision for meeting the reasonable living and business expenses of the owner of frozen property. That section makes no provision for an order enabling the meeting of any legal costs other, perhaps, than those which might be described as "business expenses", and I very much doubt that legal expenses incurred in the course of objecting to the confiscation of frozen property could be said to fall within that phrase for the purposes of s 45. Nor, in my opinion, could they be categorised as "living expenses" for the purposes of the section.

39 Given that the legislature has seen fit expressly to provide for the reasonable living and business expenses of the owner of the property, it seems to me that the omission to refer to legal costs was deliberate. That this is so is supported by the legislative history. The repealed Act, by s 29(9), provided that a restraining order under that Act "may provide for meeting the reasonable living and business expenses of the person whose property the order applies to, and the reasonable costs and expenses of the person defending any criminal charge" (my italics). The legislature consequently there distinguished between "living and business expenses", on the one hand, and "reasonable costs and expenses", on the other.

40 That the omission of any reference, in the current Act, to legal costs or expenses was deliberate is, as the primary Judge said, also supported by reference to the second reading speech in the Legislative Assembly (Hansard, 29 June 2000, page 8613). As his Honour mentioned, the Parliamentary Secretary (who introduced the Bill) there said that, under the Act, no frozen property can be released for payment of legal expenses. Also, the explanatory notes to the Criminal Property Confiscation Bill 2000 (WA) ("the Bill") expressly record, in the course of dealing with cl 45, that "there is no power in the Act for the Court (or a Justice of the Peace) to release money for payment of legal expenses". These extrinsic

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materials seem to me to resolve any ambiguity which otherwise might have been thought to exist in the phrase "reasonable living and business expenses" and to confirm what I have taken to be the ordinary meaning of s 45: ss 19(1) and (2)(e) and (f) of the Interpretation Act 1984 (WA).

41 Counsel for the applicant urged upon us the proposition that it is a fundamental principle of natural justice, applicable to all courts, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his or her case (Cameron v Cole (1943) 68 CLR 571 at 589, per Rich J) and that, if such a person is denied access to his or her assets for that purpose, that opportunity is jeopardised. He also referred us to Kirk v Commissioner of Australian Federal Police (1988) 19 FCR 530. In that case the Court considered the provisions of the Customs Act 1901 (Cth) which, by s 243E, provided for an interlocutory order by way of receivership. Subsection (4)(c) gave to the Court the power, in directing the Official Trustee to take control of property, to order that he or she "may make provision for meeting the reasonable living and business expenses of the defendant out of that property, or out of a specified part of that property". Davies J, at 547 (and again at 558), suggested that that provision should be read widely so as to encompass all expenses, including expenses such as legal costs which the person reasonably had and should meet while his property was controlled by the Official Trustee.

42 None of this alters my conclusion as regards the proper construction of s 45. If that section is to be regarded as ambiguous, and therefore capable of being read either widely or narrowly, the legislative history, and the terms of the explanatory memorandum which accompanied the Bill, resolve that ambiguity in the manner which I have identified. Once the intention of the legislature has become clear, it must be given effect even if a different interpretation might appear to be more consonant with the rights of the individual.

43 I should add, in this last respect, that we were referred to Article 14 of the International Covenant on Civil and Political Rights 1966. Counsel for the applicant submitted that an interpretation of s 45 which prevents the applicant from using his own means to secure legal representation is contrary to the expectation of equality before the courts which, he said, is contemplated by Article 14. While conventions to which Australia is a party might assist in construing statutes (Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 at 363), they do not form part of domestic law unless and until given effect by statute (Brown v Members of the Classification Review Board of the

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Office of Film & Literature Classification (1998) 82 FCR 225 at 236) and must yield to the clear intention of the legislature.

44 For all of these reasons ground 2 fails.

Grounds 4 and 5 - The Citibank Issue

45 That leaves the Citibank issue.

46 It seems to me that the primary Judge was in error in saying ([48] of his judgment) that counsel for the applicant had not made an application for an adjournment in order to place additional affidavit evidence before the Court. The applicant's then counsel, Mr R Heath, acknowledged, very early on in the proceedings, that there was "a gap in the evidence" as regards the debt to Citibank, in that it had not sufficiently emerged upon what the money advanced by Citibank had been spent. He said that, if the primary Judge considered this to be appropriate, he would arrange for additional affidavit evidence to be placed before the Court. The primary Judge declined to express an opinion on whether that should, or should not, be done and, in the result, Mr Heath elected to "wait until … [he had] heard what … [counsel for the DPP] has to say" (transcript pages 653, 658, 659 and 660). Then, after it had been made plain that counsel for the DPP maintained her position as regards the inadequacy of the evidence before the Court, and after she had submitted that the application should either be dismissed or, if the primary Judge considered this to be too harsh, that the parties should "come back another day if my learned friend's client chooses to put some evidence on about what has been happening", Mr Heath sought an adjournment "so that evidence can be put on" (transcript page 680). The primary Judge responded by saying that it seemed to him that counsel for the applicant had effectively made his choice and that he had dealt with the issue in argument. He went on to say that he thought it inappropriate to grant an adjournment at that stage. That ruling was accepted by Mr Heath.

47 It is plain, from what I have said, that counsel for the applicant had always left open the possibility of applying for an adjournment. Contrary to a submission advanced before us on behalf of the respondent, he made no election, on behalf of the applicant, to proceed without additional evidence.

48 In my respectful opinion, even allowing for the importance of case management principles, and for the fact that a primary Judge's exercise of discretion on a question such as this should not lightly be interfered with, this is a case in which it is necessary to find error on the part of the

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primary Judge in refusing the application for an adjournment. The issue in respect of the money owed to Citibank was relatively confined and an adjournment of that aspect of the applicant's application would not have led to any significant prejudice. The remainder of the application could still have been determined, as it was by the primary Judge. On the other hand, the affidavit evidence which was before the Court established that there was a real prospect that Citibank would proceed to bankrupt the applicant if he did not pay the amount owed by him. Moreover, the refusal of the adjournment also prejudiced Citibank, which was not represented at the hearing. In these circumstances the balance of convenience so overwhelmingly favoured the grant of an adjournment that it was not a reasonable exercise of discretion to refuse it: cfState of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154, per Dawson, Gaudron and McHugh JJ and House v The King (1936) 55 CLR 499 at 504 - 505.

49 That leaves the question of what should now be done. At the hearing of the appeal, the Court expressed dissatisfaction at the fact that there was still no affidavit evidence available as regards the nature of the expenditure making up the Citibank debt. This led to the handing up of an affidavit sworn by the applicant on 14 March 2005. In that affidavit the applicant says that he and his wife, Rosalind Mansfield, have a credit card issued by Citibank which is held in their joint names. He says that, despite the obligation which had been imposed on the DPP to maintain all of the property the subject of the freezing order, in about August 2002 he and his wife received from Challenge Bank Ltd default notices in respect of mortgaged properties owned by them. He consequently arranged for his then solicitors to pay the costs associated with maintaining those two properties, including the costs due under the mortgages. He gave to his solicitors the Citibank credit card number and authorised them to charge against the card the amounts required to reimburse them for whatever was spent by them on maintaining the two properties and also maintaining car payments which were due by the applicant to Australia Guarantee Corporation. A total amount of $20,000 was charged to the card in this way on 4 September 2002. The applicant also says that he "believes" that, during August to December 2002, his wife used the Citibank credit card to pay for general living expenses including school fees, household bills, food and the hire of a motor vehicle and that these expenses totalled approximately $14,000. He believes that the remainder of what is owed in respect of the card comprises interest and penalty fees.

50 Attached to the applicant's affidavit is a copy of a "trust and debtor reconciliation" statement prepared by his former solicitors, Marks, Healy

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and Sands. That document reveals credits of $20,000 and $10,000, respectively dated 4 September 2002 and 20 September 2002. Each bears the notation "Credit card - Mansfield". However, the list of debits does not seem to bear out the applicant's suggestion that $20,000 was spent by Marks, Healy and Sands on maintaining the two properties, paying costs due under the mortgages to Challenge Bank and making car payments to Australian Guarantee Corporation. Taking a view which is generous to the applicant, and assuming that every debit (including those in respect of an unidentified "Michael Johnson & Co" and "PSL Com Mobile"), other than those marked with an invoice number or shown as a payment to the Supreme Court, involved mortgage, maintenance, household or car expenses of one kind or another, this explains a total of only $14,541.71 of the total sum of $30,000 drawn on the credit card.

51 Also annexed are Citibank statements for September and October 2002, addressed to the applicant. That for September 2002 shows a payment of $20,000 to Marks, Healy and Sands as having been made on 6 September 2002. The statement also shows an interest charge of around $219 and various smaller charges, the nature of some of which is unclear. The October statement includes, inter alia, amounts which appear to be vehicle licence registrations, car rental costs, school fees, a life insurance payment and a cash advance. However, the total of what, on the face of it, might be categorised as living expenses of the kind referred to by the applicant in his affidavit (taking, once again, a very generous view) adds up to only a few thousand dollars (certainly less than $5000) and, consequently, falls a long way short of the sum of $14,000 deposed to by the applicant as having been spent by his wife. I should add that neither statement shows the $10,000 payment said to have been made to Marks, Healy and Sands on 20 September 2002.

52 This evidence is consequently still very unsatisfactory (and the respondent has been given no adequate opportunity to consider it). However, because it suggests, if it is taken at face value, that some of what is owed to Citibank might be found to fall within the phrase "reasonable living … expenses" (albeit there is nothing to say what Citibank will do in respect of the bankruptcy proceedings if only part of what is owed is paid to it), and because to do otherwise would prejudice the interests of Citibank, it seems to me (not without considerable hesitation) that the matter should be remitted to a Judge (there is no need for it to go before the same Judge) in order to have the issue determined, if it is not agreed between the parties.

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Conclusion

53 I would consequently allow the application for leave to appeal in respect of grounds 4 and 5. I would uphold those grounds and direct that the matter be returned to a single Judge of the Supreme Court for determination of the question raised by order 1 of the applicant's summons dated 16 September 2004, if no agreement can be reached between the parties in respect of it. I would otherwise dismiss the application.

54 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.

55 PULLIN JA: The structure of the Criminal Property Confiscation Act2000 (WA) ("the Act") is set out in the reasons for judgment of Steytler P. His Honour has also set out the details of the freezing order and the application for the further variation which was made and he has summarised the details of the judgment of the primary Judge and the proposed grounds of appeal. I need not repeat this material. For completeness I also refer to [2] to [14] of the judgment of Le Miere J in Director of Public Prosecutions for Western Australia v Mansfield [2004] WASC 116 which set out some of the history of this matter. Roberts-Smith J also referred to this history in [18] of his judgment.

56 I agree with Steytler P and Wheeler JA that grounds 4 and 5 should be upheld and that the matter should be returned to a single Judge for determination of the question raised by order 1 of the applicant's summons, dated 16 September 2004, if no agreement could be reached between the parties in respect of it.

57 I am unable to agree with the conclusions of Steytler P or Wheeler JA in relation to the other grounds of appeal. I would grant leave to appeal and uphold all grounds of appeal for the reasons which appear below.

General observations concerning the Act

58 Parliament here and elsewhere in Australia has passed legislation of this kind in order to discourage criminal activity and to require the disgorgement of direct or indirect fruits of criminal activity. For discussion about the purpose of the legislation see Director of Public Prosecutions v Toro-Martinez (1993) 33 NSWLR 82 at 85.

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59 The legislation contains some provisions with unusually drastic effect. There is a provision for a freezing order. A freezing order, if made, may have the effect of taking the complete control and management of property out of the hands of the owner of the property. This may happen before a person is convicted of any charged offence. In fact, a freezing order may even be made in circumstances where the DPP merely says that it is likely the owner of the property will be charged. See for example s 43(5) of the Act. An order may be made which affects the whole of a person's property. An order may be made so that movable property may not be moved at all. An order may be made which allows the DPP to take over the management of all of the property. A person who deals with property the subject of a freezing order expose themselves to a $100,000 fine or 5 years' imprisonment. See s 50. A freezing order may be made without the owner of the property being given notice of the application. The ex parte application can be dealt with in a court which is closed to the public on the basis of evidence which may not be disclosed to the owner of the property. The freezing order is an interim restraint in relation to the property which applies until confiscation occurs or until objection proceedings are resolved in favour of the owner of the property.

60 If ambiguity arises in the construction of this legislation, then the Court must of course prefer a construction which would promote the purpose or objective of the Act. However, there are certain assumptions which courts make about the exercise of legislative powers. One such assumption is that certain tenets of our legal system will be observed. The assumptions will give way if the legislation expressly or by necessary intendment provides that the assumptions are not to be made by the courts. There is for example a general presumption that Parliament does not intend to interfere with vested proprietary rights. Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363 at 373; Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 at 181 and 182. The presumption can be overridden by express and unambiguous statutory provision: Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 146. The Act expressly provides that vested proprietary rights are to be interfered with, but it is the extent of the interference and the conditions under which the interference is to be permitted which arises for consideration in this case.

61 In the interpretation of penal statutes, the ordinary rules of construction must be applied but if the language of the statute remains ambiguous or doubtful, the ambiguity or doubt may be resolved in favour of the subject. See Beckwith v The Queen (1976) 135 CLR 569 at 576 per Gibbs J and Waugh v Kippen (1986) 160 CLR 156 at 164. That

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attitude applies also to forfeiture legislation of this general type. See Forbes v Traders' Finance Corporation Ltd (1971) 126 CLR 429 per Menzies J at 437 and Gibbs J at 447; Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118.

62 With these preliminary comments I now turn to the issues that have arisen in this case.

May the Court make a freezing order subject to the DPP giving an undertaking as to damages

63 There are circumstances where a court may be justified in making an order on limited evidence which proves not to be justified when further evidence is provided to it. For example, an interlocutory injunction may be justified on evidence before the court at the time but in the light of further information, may be seen as unjustified. There is no automatic right to compensation ex facto in those cases. To guard against the risk of damage to a party when an injunction is granted, courts usually make the order subject to the condition that an undertaking is given to pay any damages which may be suffered in the event the injunction is shown to have been unjustified. The requirement that an undertaking be given is a "matter of elementary fairness when an interlocutory injunction is granted in advance of the final determination of the parties' rights at trial": Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1991] 3 WLR 985 at 994, per Dillon LJ.

64 According to Jessel MR the undertaking as to damages was invented by Lord Justice Knight-Bruce when he was Vice-Chancellor and was originally inserted only in ex parte orders for injunction. See Smith v Day (1882) 21 Ch D 421 at 424. Jessel MR said at 424 that the object of the undertaking was to protect the court as well as the defendant from improper applications for injunctions. If the evidence in support of the application suppressed or misrepresented facts, the court was able not only to punish the plaintiff but to compensate the defendant. By degrees the practice was extended to all cases of interlocutory injunctions. The requirement that an undertaking be given is not restricted to circumstances where an injunction is granted. Thus, in the case of an asset preservation order, commonly called a Mareva injunction, it is difficult to conceive of circumstances where a Mareva order would be made and an undertaking as to damages not required. See Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at [53].

65 The DPP has as one of his functions the enforcement of the Act - see s 12(2) of the Criminal Property (Consequential Provisions) Act 2000

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(WA), which inserts s 16(3) in the Director of Public Prosecutions Act 1991 (WA). The word function means authority, power or duty. The DPP is not obliged to apply for a freezing order. Section 41(1) of the Act says that the DPP "may" apply to the court for a freezing order.

66 Pursuant to s 43(1) of the Act,the court when it hears an application "may" make a freezing order. Section 43(1) confers jurisdiction on the Court to make a freezing order. In my opinion, even though the word "may" is used the jurisdiction must be exercised: Ex parte McGavin (1945) 46 SR (NSW) 58 at 60-61; Newmarch v Atkinson (1918) 25 CLR 381; cf however Re Hassell; Ex parte Norman & Pride No 2 (1984) 2 FCR 319. Section 41(1) is followed by s 43(3) which is the provision that empowers the court to grant different forms of relief. Provisions which empower a court to grant relief are usually not treated as imposing an obligation to exercise the power: Newmarch v Atkinson (supra); Ward v Williams (1955) 92 CLR 496. The Court therefore exercises a discretion when it decides whether or not to grant a freezing order over all of a person's property, or over only some of a person's property, or whether or not it will make orders of the kind set out in s 45.

67 The conclusion that the court exercises a discretion is fortified by the fact that elsewhere in the Act in other circumstances the court is directed that it "must" make orders: see, for example, s 30(2). (Section s 43 itself contains a mandatory provision. See s 43(4) which states that the court is "not to refuse to make a freezing order for property … only because the value of the property exceeds … the amount that a person could be liable to pay" under certain other sections). The fact that the court is not permitted to refuse to make a freezing order in certain circumstances necessarily implies that the court does have the discretion to refuse to make a freezing order over some of a person's property in other circumstances.

68 The discretion conferred by s 43 of the Act is unconfined except insofar as it is affected by limitations to be derived from the scope and purpose of the legislation as a whole: see R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45. The discretion must however be exercised judicially.

69 The freezing order is an interim measure. The possibility that it may be terminated because of a successful objection is, in my opinion, a factor which may be considered in the exercise of the discretion. Just as the courts of equity usually consider it necessary to impose a condition that the plaintiff give an undertaking as to damages as the price of an

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injunction, likewise, in my opinion, it would usually be necessary if the court is to make a freezing order. A freezing order is a statutory version of an interlocutory injunction. See State of Queensland v Rodd [2004] QSC 312 at [7]; it serves the same purpose as a Mareva order: McCleary v Commonwealth Director of Public Prosecutions (1998) 20 WAR 288 at 303.

70 The DPP argues against this conclusion and advances several reasons for doing so.

The effect of the repeal of previous legislation

71 First he points to the previous legislation (the Crimes (Confiscation of Profits) Act 1988 (WA)) which was repealed by the Act. The previous legislation made express provisions in s 20(11) for an undertaking as to damages in relation to what were there called restraining orders. The DPP submits that because this legislation does not contain such a provision then ergo the court should conclude that it has no right to impose such a condition under this legislation. It is true that in ascertaining the purpose of an Act the history of the Act may assist. See Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 410. However, resort to the history is only necessary if there is some ambiguity. If the meaning of the Act is clear, there is no need to resort to the history. In my opinion the Act is clear in relation to this issue. Parliament has legislated to confer on the court a discretion to grant relief in the form of a freezing order over all or some of a person's property. Furthermore, Parliament has seen fit at the same time to include s 102(1) which provides that:

"Proceedings on an application under this Act are taken to be civil proceedings for all purposes."

72 There was no provision equivalent to s 102(1) in the previous legislation. If proceedings under the Act are "civil proceedings for all purposes", then certain provisions of the Supreme Court Act 1935 (WA)will apply. By s 24(7) of the Supreme Court Act the court "in every cause" may grant remedies on "reasonable terms and conditions". See s 24(7) of the Supreme Court Act. The word "cause" includes "action" and the word "action" means "civil proceedings": see s 4 of the Supreme Court Act. The Supreme Court is given jurisdiction by s 24(6) of the Supreme Court Act as well as by s 101 of the Act to give effect to all legal claims "created by any statute". The Court therefore has jurisdiction to entertain a claim in civil proceedings for a freezing order by the DPP under the Act. Section 21(4) of the Supreme Court Act is to the same effect. It states that where any statute passed after commencement of the

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Supreme Court Act confers any jurisdiction on the Court or a Judge, such jurisdiction shall be exercised so far as regards procedure and practice in the manner directed by subs (3).

73 Section 21(3) of the Supreme Court Act provides that any jurisdiction shall be exercised in the manner provided "by this act and the rules of court". Reference was made by the applicant to O 52 r 9 of the Rules of the Supreme Court 1971 (WA) which provides that unless the Court otherwise orders, upon the grant of an interlocutory injunction, the order shall include an undertaking to the Court on the part of the applicant that the applicant will pay compensation to any party affected by the injunction as the Court considers to be just. This rule does not on its face, apply to freezing orders. In my view, O 52 r 9 does not apply, but the court in deciding the "reasonable terms and conditions" to be imposed in relation to a freezing order may require the DPP to give an undertaking as to damages.

74 Mareva orders, although not now strictly regarded as injunctions, are made subject to a condition that an undertaking will be given as to damages. Such a condition is authorised by s 24(7) of the Supreme Court Act.

75 Under the now repealed Crimes (Confiscation of Profits) Act there had been no provision like s 102(1) of the Act. That being so, it was undoubtedly regarded as necessary by Parliament in the earlier Act to expressly state that the court might require an undertaking as to damages. The inclusion of s 102(1) in the Act meant that it was then not necessary to state expressly that the Court has authority to require an undertaking because in relation to the grant of a freezing order the Court hearing the civil proceedings for a freezing order has authority to make such an order subject to "reasonable terms and conditions".

76 The requirement that an applicant give an undertaking as to damages is an important means of preventing injustice. See the Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 at 311. Where an interim order will put at risk title to assets, an undertaking to the Court is usually regarded as essential. See the National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271 at 277.

77 An order made subject to an undertaking as to damages is not an order that the DPP give an undertaking as to damages. The same applies in relation to undertakings on interlocutory injunctions. As Diplock J says in F Hoffman-La Roche & Co AG v Secretary of State for Trade and

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Industry [1975] AC 295 at 361, "The court has no power to compel an applicant for an interim injunction to provide an undertaking as to damages. All it can do is refuse the application if he declines to do so." If a freezing order is made subject to an undertaking as to damages, the DPP has a choice. If he chooses not to give the undertaking then the freezing order would not come into effect. If, on the other hand, he chose to give the undertaking then the freezing order would have effect.

Is the Act a Code?

78 The DPP submits that the Act is a code. The DPP argues that this means there is no presumption that any general law principles applicable to the grant of any other statutory or equitable remedy apply. The word "code" has various meanings, but in my opinion there is no point discussing whether the Act can be described as a code or not. This is because even if it is a code it is still an Act of Parliament and its language has to be construed according to its natural meaning: Brennan v The King (1936) 55 CLR 253, at 263.

79 I therefore turn to the Act to see what it has to say. It says, without any ambiguity, that:

(a) the Supreme Court may grant a freezing order [s 43(1) and s 101(1) of the Act. See also s 24(6) of the Supreme Court Act]. These sections confer jurisdiction on the Court to make a freezing order;

(b) the Court may grant a remedy which may vary from case to case. It may be granted over all of a person's property or only over some of its property. See s 43(3) of the Act. It may or may not make orders in terms of s 45 of the Act. These provisions confer a discretionary power to grant relief;

(c) the freezing order proceedings are taken to be civil proceedings 'for all purposes': see s 102(1) of the Act.

80 The statement in s 102(1) that proceedings are civil proceedings "for all purposes" is, in my opinion, an express statement that any other law relating to civil proceedings will apply. This means that the provisions of the Supreme Court Act which I have referred to above will apply. This means that the Supreme Court may impose "reasonable terms and conditions" when granting relief.
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81 In consequence of what I have set out above, it is not of any relevance that in the earlier Act there was an express provision authorising the Court to require an undertaking as to damages to be given by the DPP while there is not such an express provision in this Act. The existence of an express provision in the earlier legislation cannot create ambiguity in the present Act if the language of the present Act is unambiguous.

Are there policy reasons against the Court requiring an undertaking?

82 The DPP advances the argument that policy reasons are against the Court requiring an undertaking. In my opinion there is no policy reason why the Court should not require an undertaking. It was suggested by counsel for the respondent that requiring an undertaking may deter the DPP from bringing applications for a freezing order. I do not consider that would be so. The DPP has protection against personal claims being made against him and in his office he has a right of indemnity from the State. See s 137 of the Act and see s 10 and s 16 of the Director of Public Prosecutions Act. Previously in this State and presently in other States, the express provision for an undertaking has not been a deterrent. See for example Re Cannon [1999] 1 Qd R 247; McCleary v Commonwealth Director of Public Prosecutions (supra).

Does the existence of s 137 of the Act mean that no undertaking should be required?

83 The DPP also relies on the existence of s 137 of the Act to support its contention that an undertaking should not be made a condition of the grant of a freezing order. Section 137 reads:

"A person on whom this Act confers a function is not personally liable in civil proceedings, and the State is not liable, for anything done or default made by the person in good faith for the purpose of carrying this Act into effect."

84 It is argued that if the DPP cannot be made liable for anything done or default made in good faith for the purpose of carrying the Act into effect, then it would have no liability under an undertaking as to damages and therefore there is no point in requiring it. In my opinion, the existence of s 137 is of no assistance to the DPP. If the DPP gives an undertaking as to damages and the freezing order is discharged after the objection proceedings, then provided that the appellant was able to prove that he suffered loss, and compensation was assessed by the Court, the DPP could not refuse to pay that compensation. Such a default would not be a default "in good faith" for the purpose of carrying the Act into effect.
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85 I note that in Securities and Investments Board v Lloyd-Wright [1993] 4 All ER 210 at 214 a provision similar to s 137 was held not to prevent the Court from requiring an undertaking as to damages but the Court there considered that it was a "clear pointer in the exercise of the discretion, which the Court undoubtedly has, to indicate that no such cross-undertaking should be required where the designated agency is, in fact, seeking to discharge functions exercisable pursuant to … the … Act." I do not understand how the existence of a provision like s 137 (which could not be relied on in the circumstances I have outlined above) could be a factor to be taken into account in relation to the exercise of the Court's discretion about whether or not an undertaking should be required. I therefore decline to apply the reasoning in the Lloyd-Wright case.

Should Hoffman's case be followed?

86 Finally the DPP relies on F Hoffman- La Roche & Co AG v Secretary of State for Trade & Industry (supra) to say that the undertaking should not be required. Hoffman's case stands as authority for the proposition that:

(a) where the Crown is engaged in litigation for the purpose of asserting a proprietary or contractual right, the ordinary rule applies and the Court would not ordinarily grant an interlocutory injunction unless the Crown chose to give the usual undertaking as to damages, but

(b) where the Crown commences proceedings for an injunction for the purpose of enforcing the law in a "law enforcement action" the exacting of an undertaking in damages is a matter of discretion which should usually be exercised by not requiring the Crown to give the undertaking.

87 Lord Diplock said [at 364] that in "law enforcement actions" the undertaking should not be required "as a matter of course". Lord Reid also did not rule out the possibility that in an appropriate case an undertaking would be required. Lord Wilberforce dissented and said that he considered that an undertaking should have been required. In Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227 the House of Lords held that local authorities who were bringing a "law enforcement action" should in the exercise of the Court's discretion also usually be exempt from a requirement to give an undertaking. These English decisions are not binding on this Court. They are useful only to their degree of the persuasiveness of their reasoning: Cook v Cook (1986)

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162 CLR 376 at 390; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [82].

88 I am persuaded by Lord Wilberforce's dissent in Hoffman's case. His Lordship noted that the practice of not requiring the Crown to give an undertaking as to damages had its origin in the impossibility in past times of suing the Crown for damages. His Lordship referred to the fact that the immunity was removed by the Crown Proceedings Act 1947 (UK). (In this State this immunity was removed by the Crown Suits Act 1947 (WA).) In relation to the question about whether in the exercise of discretion an undertaking should be required his Lordship noted the argument that the Crown was "enforcing the law" and should not be hampered by being put on terms. His Lordship regarded that argument as fallacious. The DPP here also argues that he may be hampered by a requirement that he should give an undertaking as to damages. I do not understand why that should be so. The DPP has no personal liability for any damages which might be assessed.

89 Lord Reid, who was in the majority in Hoffman's case, gave an explanation for the distinction between the assertion of proprietary and contractual rights owned by the public through the Crown and the duty to enforce criminal provisions. He said [at 341]:

"Dealing with alleged breaches of the law is a function of the Crown … entirely different from its function in protecting its proprietary rights. It has more resemblance to the function of prosecuting those who are alleged to have committed an offence. A person who is prosecuted and found not guilty may have suffered serious loss by reason of the prosecution, but in general he has no legal claim against the prosecutor."

90 With respect, it is not to my mind a convincing argument that because persons suffer unrecoverable financial loss as a result of an unsuccessful criminal prosecution that a person should also suffer unrecoverable financial loss as a result of a freezing order which is later discharged following a successful objection.

91 Finally, it is difficult to see the relevance of the distinction which is made between an action by the Crown to enforce the general law and an action by the Crown to enforce a proprietary or contractual right. The Crown owes a duty, not only to enforce the criminal law but also to assert proprietary or contractual rights owned by the Crown.

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92 In the Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318, Ormiston J at 321 referred to extra judicial works which criticise the decision in Hoffman's case: see AAS Zuckerman, "Dispensation with Undertaking in Damages - An Elementary Injustice" (1993) 12 CJQ 268; Spry, "Equitable Remedies" 6th Ed, 484. See also Harlow "'Public' and 'Private' Law: Definition without distinction" (1980) 43 MLR 241.

93 In my opinion his Honour erred in law in concluding that he had no authority to require an undertaking as to damages as a condition of granting a freezing order.

Is the applicant entitled to legal expenses in order to meet the legal costs of defending the criminal charges and conducting the objection proceedings concerning the freezing order?

94 His Honour refused the appellant leave to amend his application to seek an order that:

"… the freezing order be varied further to authorise the release of funds so that Mansfield can retain an expert and fund his defence of the proceeding generally."

95 This proposed amendment was set out in the appellant's outline of submissions put before his Honour. The DPP referred to s 45 of the Act and submitted that it did not authorise the release of property to meet legal fees and expert assistance. His Honour dealt with the application for leave to amend the chamber summons between [51] and [56] of his reasons for decision. His Honour said that the "nature of orders which may be made with respect to property the subject of a freezing order is set out in s 45" and he then said:

"53 Given the express authorisation for the variation of freezing orders to enable expenditure to meet the reasonable living and business expenses of the owner of the property, I consider it follows inevitably that the legislature intended that the release of frozen funds be confined to matters of that kind.

54 To the extent the lack of any express reference in the legislation to the release of funds to be applied to payment of legal costs might be suggested to create an ambiguity in the legislation, the point is clearly disposed of by reference to the Second Reading Speech of Mr Barron-Sullivan in the Legislative Assembly on

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29 June 2000 ('Hansard' p 8611 at p 8613) in which he expressly stated:

'… property frozen under a freezing order can be released by a court only for payment of living or business expenses. No frozen property can be released for payment of legal expenses.'

55 That I think puts the matter beyond doubt."

96 In my opinion it is not necessary to force the issue into a question about whether or not legal expenses can be categorised as "reasonable living and business expenses" in a freezing order. Indeed I will assume without deciding that legal expenses are not "living" or "business" expenses.

97 Section 43(3) states that the Court may make a freezing order for "all or any" property that is owned or effectively controlled by the person. The Court may make a freezing order over all property owned by a person and in that freezing order make provision for "meeting the reasonable living and business expenses of the owner of the property". As I have said I will assume this will not allow the Court to make provision for legal expenses.

98 However, the Court in the exercise of its discretion may also refuse to make a freezing order over some property. The Court could therefore make a freezing order with respect to certain property, and refuse to make one in relation to sufficient property to allow legal expenses to be paid. In other words the freezing order would not cover property to be used to pay legal expenses. If some property is exempted from the freezing order, then s 45 would not apply to it. In exempting some of the property from the freezing order, the Court could provide that it be exempt on condition that it be spent in a particular way, ie, for legal expenses, and that there should be some machinery for ensuring that the money is spent only for that purpose.

99 The Act contemplates that a person may be the subject of criminal proceedings and contemplates that a person's property may be the subject of a freezing order. The Act also provides for an objection process. There is nothing in the Act which suggests a person should not be permitted to have access to funds for legal representation in relation to the objection proceedings or criminal proceedings. To freeze all of a person's property and not release any for legal fees say in relation to the criminal charge which justifies the freezing order may mean that the person cannot

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gain legal representation which may lead to a Dietrich application to stay the criminal proceedings: Dietrich v The Queen (1992) 177 CLR 292. That was surely not an intended outcome.

100 In R v Parker (1994) 75 A Crim R 437 Beach J considered the Dietrich principle and concluded that it applies by extension to "applications for restraining orders or pecuniary penalty orders by an accused person". See also the cases cited by Beach J at 445, namely Deputy Commission of Taxation v Kunz (1990) 51 A Crim R 13; Director of Public Prosecutions v Vella (1993) 61 SASR 379. I am aware of the fact that in Parker's case the confiscation legislation allowed the Court to make a freezing order which provided for the release of funds for legal expenses, but that fact does not alter my reasoning or the statement about the application of the Dietrich principle to confiscation proceedings.

101 In my opinion his Honour erred in refusing leave to the appellant to amend his summons to seek an order that the freezing order be varied to authorise the release of funds so that the applicant could retain an expert and fund his legal expenses associated with his defence of the objection proceedings and the freezing order proceedings. His Honour refused leave because he considered that such an order could be made only if those expenses fitted the description of "reasonable living or business expenses". In my opinion his Honour erred in this conclusion because had the authority to vary the freezing order by ordering that it apply to some property while leaving sufficient property to be available to meet legal expenses to be paid. This could be done in practical terms by ordering that the freezing order should apply to all property except property from which legal costs could be paid. The freezing order would not then affect that excepted property.

The adjournment application

102 The applicant applied for an adjournment and had not precluded that application by any conduct during the course of the hearing. It is true that the applicant was tardy in making the adjournment application. He did not finally make the application until the end of the hearing.

103 The ultimate aim of the Court is the attainment of justice. To produce a just result, the Court was required to have before it all of the evidence which the parties wish to bring before the Court. The applicant wished to lead more evidence about the Citibank expenditure. In the event that a party claims that it does not have all of the necessary evidence before the Court and wishes to do so, it should be granted an adjournment

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to allow that to happen. Of course this is not an automatic right. The interests of both parties have to be taken into account and if there is prejudice to the other party, then that will strongly influence the outcome of an adjournment application. The principles are set out in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. In this case there was no prejudice at all to the DPP. In fact an adjournment benefited the DPP because it left the DPP with the freezing order intact.

104 In my opinion his Honour erred in the exercise of his discretion refusing to allow an adjournment.

Conclusions

105 I would set aside the order dismissing the application made to his Honour. I would order that the appellant be granted leave to amend his application in relation to legal expenses. I would otherwise remit the matter for consideration before a judge of the Supreme Court in relation to the terms of the undertaking as to damages, the consideration of the application for the variation of the order previously made and to determine what directions were necessary concerning the further affidavit evidence in relation to the Citibank issue.