Moloney v Attorney-General of Victoria and Director of Public Prosecutions
[2010] VCC 481
•19 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-03670
| ROBERT GERARD MOLONEY | Applicant |
| v | |
| ATTORNEY-GENERAL OF VICTORIA | First Respondent |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA | Second Respondent |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 April 2010 |
| DATE OF JUDGMENT: | 19 May 2010 |
| CASE MAY BE CITED AS: | Moloney v Attorney-General of Victoria and DPP |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0481 |
REASONS FOR JUDGMENT
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Catchwords: Confiscation Act 1997 - duty of disclosure in ex parte application for restraining order under s.6 – meaning of “any relevant matters in s.16(4) – meaning of “reasonable grounds” in s.18(1)(c) – power of court to set aside restraining order once property has been confiscated.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms F I O’Brien QC with | Davies Moloney |
| Ms E A Bennett | ||
| For the First Respondent | Mr M K Moshinsky SC with | Victorian Government |
| Ms K E Foley-Lowe | Solicitor | |
| For the Second Respondent | Mr S G O’Bryan SC with | Solicitor for Office of Public |
| Ms L D Ferrari | Prosecutions | |
| HIS HONOUR: |
1 On 10 April 2008, Robert Gerard Moloney was charged with a number of offences (“the charges”) which exposed him to the possibility that a restraining order may be sought with respect to property owned by him or in respect of which he had an interest, pursuant to the provisions of the Confiscation Act 1997 (“the Act”)
2 By reason of the charges, an application (“the application”) was made by the Director of Public Prosecutions pursuant to the Act that a property situated at 71 Mathiesons Lane, Nirranda (“the property”), in respect of which the applicant was the sole proprietor, be the subject of a restraining order pursuant to the provisions of s.18(1)(c) of the Act.
3 Pursuant to the provisions of s.16(4) of the Act, the application was supported by an affidavit deposed by Alexander Kenneth Harris, a Detective Senior Constable attached to the Criminal Proceeds Squad of the Victoria Police. In his affidavit, Mr Harris deposed that the applicant had been charged with offences which he listed as follows:
(1) Cultivate a narcotic plant, cannabis; (2) Cultivate a narcotic plant, commercial quantity; (3) Traffick cannabis, commercial quantity; (4) Cultivate a narcotic plant, cannabis; (5) Possess a drug of dependence, cannabis; (6) Traffick a drug of dependence, cannabis; (7) Possess a prohibited weapon without an exception, cross-bow. 4 Mr Harris further deposed that:
•
The applicant had cultivated and trafficked in a commercial quantity of cannabis;
•
Cultivation, trafficking in and possession of cannabis are forfeiture offences defined in Schedule 1 of the Act;
•
The property was tainted property[1] because it was used in or in connection with the commission of the offences;
•
The applicant was the sole registered proprietor of the property which was the subject of a mortgage held by the ANZ Bank;
•
If the applicant was convicted of the offences with which he had been charged, he was subject to:
[1] pursuant to the definition of “tainted property” in s.3 of the Act
(i) a forfeiture order made pursuant to Division 1, Part III of the Act;
(ii) automatic forfeiture pursuant to Division 2 of Part III of the Act;
(iii) a pecuniary penalty order pursuant to Part XIII of the Act
in relation to any benefit derived by him as a result of the commission of
the offences.
5 By reason of the application in 2008, his Honour Judge McInerney made a restraining order (“the restraining order”) under s.18(1)(c) of the Act in the following terms:
“No person shall dispose of or otherwise deal with the property specified
below or any interest in that property:
(a) the real property situated at 71 Mathiesons Lane, Nirranda, and more particularly described in Certificate of Title Volume 09885 Folio 147.”
6 His Honour also declared that the property was restrained for the following purposes:
“(a) to satisfy any forfeiture order that may occur under Division 1 of
Part III of the Confiscation Act 1997;(b)
to satisfy automatic forfeiture of property that may occur under Division 2 of Part III of the Confiscation Act 1997;
(c)
to satisfy any pecuniary penalty that may have been made under Part XIII of the Confiscation Act 1997.”
7 Unbeknown to his Honour, at the time at which the restraining order and declaration were made, the charges involving:
(1) Cultivate a narcotic plant, cannabis; (2) Traffick cannabis, commercial quantity; (3) Cultivate a narcotic plant, cannabis; (4) Traffick a drug of dependence, cannabis had been withdrawn on the basis that the applicant would plead guilty to the
remaining charges, namely:
(1) Cultivate a commercial quantity of cannabis;(2) Possess a Drug of Dependence, cannabis;
(3) Possess a Prohibited Weapon without Exemption, crossbow.
8 The withdrawal of the charges came about by reason of an agreement reached between the Office of the Director of Public Prosecutions and Carol Joy Howe, a solicitor acting on behalf of the applicant.
9 In an affidavit sworn 29 March 2010, Ms Howe deposes that:
• On 3 July 2008, she telephoned Ms Raelene Maxwell of the Office of Public Prosecutions and proposed that the applicant: “Would plead guilty to all charges including cultivation on the basis that the charges relating to trafficking were withdrawn as there was no evidence of that kind of trafficking and the defendant was a heavy user of cannabis which he asserted was grown for his own use.”
•
At a committal mention on 4 July 2008, she again put to Mr Alan Cecil, who appeared on that occasion for the Office of Public Prosecutions, the proposal that the matter could proceed as a plea for the reasons previously outlined.
•
On 11 July 2008, a written proposal was sent by her to the Office of Public Prosecutions confirming that the applicant had:
“(a)
… made full admissions with respect to cultivation and possession of a commercial quantity of cannabis and also possession of a prohibited weapon;
(b)
… been charged with trafficking a drug of dependence, namely cannabis, and trafficking a drug of dependence, namely cannabis, in a quantity not less than a commercial quantity applicable to that drug;
(c)
… always indicated that the cannabis crop was for personal use and that there was no evidence that any trafficking of the drug had taken place.”
•
On 1 July 2008, Ms Maxwell confirmed the acceptance by the Office of Public Prosecutions of the plea offer, with the result that in the course of a further committal mention on 1 August 2008, Ms Maxwell made application to withdraw the four charges the subject of the plea offer and the applicant confirmed his willingness to plead to the remaining charges.
10 The applicant appeared in the County Court at Warrnambool on 19 November 2008, at which time he pleaded guilty to the three charges which were still proceeding.
11 There is no issue that in the course of the plea, the Prosecutor advised the sentencing Judge, her Honour Judge Campton:
(i)
that there was no evidence whatsoever of any commerciality about the matter;
(ii)
that the police had interviewed the applicant and were satisfied that there was no aspect of commercial trafficking involved in the charges;
(iii)
that it was not suggested that the property had been acquired by the process of “trafficking or the like”.
12 On 28 September 2009, Her Honour sentenced the applicant as follows:
(a) Charge 1 – Cultivate a Commercial Quantity of Cannabis - Convicted and sentenced to thirty-three months’ imprisonment.
(b) Charge 2 – Possess a Drug of Dependence, Cannabis - Convicted and sentenced to one month’s imprisonment.
(c) Charge 3 – Possess a Prohibited Weapon without Exemption, Crossbow - Convicted and sentenced to three months’ imprisonment.[2]
[2] By reason of concurrency being applied in respect of the charges, the applicant was sentenced to a total effective sentence of two years and ten months’ imprisonment which her Honour directed be wholly-suspended for an operational period of three years.
13 By reason of the restraining order, pursuant to the operation of s.35(1) of the Act, the property was forfeited to the Minister on the expiry of sixty days after the applicant’s conviction.
14 On 22 September 2009, a declaration pursuant to s.36(1) of the Act was made by his Honour Judge Parsons that the property had been forfeited to the Attorney-General of Victoria.
15 On 20 November 2009, Land Victoria amended the Certificate of Title of the property to register the Attorney-General of Victoria as the sole proprietor of the property and to remove the restraining order.
The Relief Sought by the Applicant
16 In this application, the applicant seeks relief from the effect of the restraining order. It is put on his behalf that at all material times in making the ex parte application for a restraining order, Mr Harris was under an obligation to make full disclosure to the Court of the fact:
(i)
that a number of charges which had originally been laid against the applicant were not being proceeded with; and
(ii)
that there was no commerciality alleged against the applicant in respect of the charges which remained.
17 It is submitted on behalf of the applicant that the failure by Mr Harris to inform the Court of these matters:
(i) involved a fundamental breach of the obligation imposed upon him by s.16 94) of the Act to inform the Court of any relevant matters such as to render the restraining order null and void; alternatively (ii) was such that, if a valid restraining order was made, the order should be set aside by reason of the failure by Mr Harris to comply with his obligation to make proper disclosure in the course of the application. 18 The application made by the applicant is opposed by the respondents, each of whom assert:
(i) that the provisions of the Act did not impose a duty upon Mr Harris to acquaint the Court of the matters the subject of the applicant’s complaint; (ii) that by reason of the fact that the property has now been confiscated and the title of the property has been transferred, the Court does not have jurisdiction to grant any relief to the applicant in respect of the restraining order even if such relief is warranted.
Inherent Jurisdiction to Set Aside an Ex parte order Restraining the Disposition of Assets
19 The obligation to make proper disclosure when seeking ex parte relief from a court is described as lying in the very nature of the adversarial system administered in Australian courts and the jurisdiction of the Court to subsequently review an order made ex parte has been described as being fundamental to civil procedure.[3]
[3] International Finance Trust Co Ltd & Anor v New South Wales Crime Commission & Ors [2009] HCA 49
20 The power of the Court to set aside orders made ex parte is recognised as being derived not from the Rules of the Court but rather necessarily implied as part of the power of the Court to proceed ex parte, and as being an elementary rule of justice.[4] Further, the fact that s.26(1) of the Act confers upon the Court a power to set aside a restraining order was recognised by Nettle, JA in Director of Public Prosecutions v Tien Duc Vu. [5]
[4] International Finance Trust Co Ltd & Anor v New South Wales Crime Commission & Ors [2009] HCA 49
[5] (2006) 14 VR 249 at [51]
21 In these circumstances, the respondents concede that the Court is vested with such a power, and I am satisfied that, in appropriate circumstances, I have the power to make orders granting each of the forms of relief sought by the applicant.
Was there a Duty to Disclose of the Type Contended by the Applicant?
22 In DPP v Vu, the Court of Appeal:
(i) did not accept the contention that an application for a restraining order was akin to a “mere ‘step-through’ process or exercise in ‘ticking the boxes’”; (ii) recognised the analogy between the purpose and effect of a restraining order made under the Act and that of a Mareva order made in civil proceedings. 23 The statement by the Court in Vu that the analogy which exists between a Mareva order and a restraining order
“implies that the considerations which determine whether and when it is necessary to give notice of an application for Mareva order afford guidance as to when and if it may be appropriate to order notice of an application for a restraining order”
should, in my opinion, have equal application to the issue as to whether the duty of disclosure which exists when a Mareva order is sought ex parte affords guidance as to the duty of disclosure when a restraining order is sought ex parte.
24 It is submitted by the respondents that the obligation of disclosure associated with an ex parte application for a restraining order is qualified by the provisions of s.16 of the Act.
25 It is put that the requirement in s.16(4) to make disclosure of any relevant matters involves only an obligation to satisfy the Court of the fact that the prerequisites for the making of an order have been established.
26 On this basis, it is submitted that the obligation of disclosure pursuant to s.16 of the Act is not as broad as that which applies to an ex parte Mareva order.
27 In this regard, the respondents rely upon the comment by the Court of Appeal in Vu that:
“… before making an order in relation to property the court must be
satisfied that:
a) the defendant has been charged with or convicted of a Sch 1 offence and satisfied that there are reasonable grounds to believe that the defendant has an interest in the property or that the property is tainted property in relation to the offence; or b) there are reasonable grounds to suspect that the property is tainted property in relation to a Sch 2 offence; or c) there are reasonable grounds to believe that the defendant will be charged with a Sch 2 offence within the next 48 hours and reasonable grounds to believe that the defendant has an interest in the property or that the property is tainted property in relation to the offence; or d) the defendant has been convicted of a Sch 2 offence and that there are reasonable grounds to believe that the defendant has an interest in the property or that the property is tainted property in relation to the offence.”
28 The respondents contend that the Court of Appeal was, in that statement, setting out a definitive list of the matters which a court should take into account when considering whether an order pursuant to s.18 should be made, and that any obligation of disclosure under s.16 is limited to the matters therein listed by the Court.
29 The issue with which the Court of Appeal was dealing in Vu however, did not involve a determination of the adequacy or otherwise of the material which should be contained in an affidavit filed pursuant to s.16 of the Act. Neither was the Court concerned with an analysis of the scope of the obligation imposed by s.16(4) of the Act to set out “any relevant matters” in an affidavit supporting an application for a restraining order. It is for these reasons that I do not accept the position put by the appellants that in Vu, the Court of Appeal meant to categorise exhaustively the matters which were to be contained in such an affidavit.
30 I am satisfied that s.16(4) of the Act, when requiring the affidavit in support of the application for a restraining order to set out:
“any relevant matters”
imposed upon Mr Harris an obligation to accurately describe the charges against the applicant which were proceeding and further, to disclose any relevant information which the Crown possessed with respect to those charges. If it was suggested that there was an element of commerciality involved in the cultivation charge, I consider that Mr Harris should have included that information in his affidavit. I consider the absence of any suggestion of commerciality as being equally significant.
31 My finding in this regard is influenced by the fact that in an ex parte application the Court relies solely upon the material supplied in the affidavit prepared pursuant to s.16(4) of the Act when determining whether there are reasonable grounds for making the restraining order. The Court is required however, when making the order, to “make such orders in relation to the property to which the restraining order relates as it considers just”.[6] If the contention of the respondents that the obligation of disclosure imposed by s.16(4) of the Act is confined to establishing the formalities required by s.16, namely:
[6] s.26(1) of the Act
(i) that a person has been charged with a Schedule 2 offence; (ii)
that the person has an interest in the subject property or the property is tainted property in relation to the offence;
(iii)
that the applicant for the restraining order is a member of the police force or a person authorised under the Act to prosecute the relevant type of offence;
(iv)
that the applicant for the order believes (setting out the grounds for those beliefs):
(a)
that the defendant has an interest in the property or the property is tainted property;
(b)
in circumstances in which a restraining order is being sought for the purposes referred to in paragraphs (a), (d) or (e) of s.15(1);
was accepted, it is difficult to see how the Court could take into account and
apply issues of justice as required by s.26(1) of the Act.32 Having regard to the fact that the Director of Public Prosecutions had apparently accepted the position put to it on the applicant’s behalf –
(i)
that there was no suggestion that the applicant was engaged in commercial trafficking of cannabis; and
(ii)
that it should not be contended that the cannabis crop was being grown for commercial purposes,
I consider that these facts should have been set out in the affidavit prepared by Mr Harris in support of the application for a restraining order.[7]
[7] In making this finding, I accept without qualification the evidence given by Mr Harris in his affidavit dated 9 April 2010 that his failure to make the relevant disclosure was in no way deliberate and arose as the result of a communication breakdown between him and Detective Inspector Dorman .
The Meaning of “reasonable grounds” in Section 18 of the Act
33 Section 18 of the Act provides:
“(1) On an application under section 16(1) or (2)(b), (c) or (d), the court
must make a restraining order if it is satisfied that the accused—
(a) has been, or within the next 48 hours will be, charged with; or (b) has been convicted of— a Schedule 1 offence or a Schedule 2 offence (as the case may be)
and—
(c) it considers that, having regard to the matters contained in the affidavit supporting the application and to any other sworn evidence before it, there are reasonable grounds for making the restraining order; and (d) if the restraining order is being sought for a purpose referred to in section 15(1)(e), it is satisfied that— (i) applications have been, or are likely to be, made for restitution or compensation under the Sentencing Act 1991 in respect of the Schedule 1 offence or Schedule 2 offence; and
(ii) the order of the court under the Sentencing Act 1991 is likely to exceed $10,000.”
34 The appellants contend that the use in s.18(1)(c) of the term “reasonable grounds” when describing the circumstances in which a court should make a restraining order, involves only the requirement that the Court is to be satisfied–
(i) of the authority of the applicant to make such an application; and (ii)
of the reasonableness of the applicant’s belief as to the matters set out in s.16 of the Act.
35 It is submitted that the statement by the Court of Appeal in Vu, to which I have earlier referred,[8] supports this position, and that even if Mr Harris had, in his affidavit, made full disclosure of the matters complained of by the applicant, the Court should have ignored those matters when deciding whether it was appropriate to make the restraining order. I do not accept this submission.
[8] Paragraph 26 of my Reasons for Judgment
36 In my opinion, s.18(1)(c) of the Act, in requiring the Court to take into account when assessing whether there are reasonable grounds for the making of the restraining order –
(i) the matters contained in the affidavit supporting the application; (ii) any other sworn evidence provided to the Court, makes it clear that the Court is required to assess and weigh the totality of the relevant evidence when deciding whether it is reasonable to make the order sought.
37 My opinion in this regard is reinforced by the provisions of s.26(1) of the Act which gives the Court the power, when making a restraining order, to make an order which it considers to be just.
38 It is conceded by the parties that the power provided to the Court by s.26(1) includes the power to set aside a restraining order on the ground that it is just to do so. The fact that the Court may consider issues of justice when exercising its power to set aside a restraining order, in my opinion supports the view which I have formed that in considering whether there are reasonable grounds for making a restraining order, issues of justice should not be ignored by the Court if they arise. Whilst s.26(5) provides examples of the kind of orders which may be made under s.26(1), it is not contended by the respondents that the list set out therein is intended to be exhaustive. Indeed, it could not be so in circumstances in which the power provided by s.26(1) includes the power to set aside a restraining order. For this reason I am satisfied that the failure by s.26(5) to refer to the making of an order in circumstances where the duty to disclose has been breached is of no moment and, in particular, that it is not an indication that in exercising the power conferred by s.26(1) to make an order which the Court considers to be just, the Court may only take into account the matters referred to by s.16.
39 For the reasons outlined above, I am satisfied that, in considering whether a restraining order should have been made under s.18(1)(c) of the Act, the Court was entitled to take into account the matters which the applicant asserts should have been made known to the Court by Mr Harris in his s.16 affidavit. It follows that Mr Harris had a duty to present that material to the Court and that, in failing to do so, he was in breach of his duty to make proper disclosure to the Court.
40 I consider that my finding as the meaning of the term “reasonable grounds” as employed by s.18(1)(c) of the Act does not require me to make a finding as to the applicability and effect of the provisions of the Charter of Human Rights and Responsibilities Act 2006 upon the operation of s.18 of the Act. I will however, reserve the parties liberty to make further submissions as to whether a finding upon this issue is required.
Does the failure to make proper disclosure result in the Restraining Order being void ab initio?
41 Whilst it was put on behalf of the applicant that the failure by Mr Harris to provide proper disclosure in his affidavit was such a fundamental breach of the obligation imposed upon him by the provisions of s.16(4) of the Act that it rendered the order made by his Honour Judge McInerney void, I do not accept the applicant’s position in this regard.
42 Accepting as I do, the fact that the approach taken by the courts as to the effect which a material non-disclosure has upon an ex parte order made in respect of a Mareva injunction affords guidance as to the effect which such a failure of disclosure should have upon an ex parte application for a restraining order, there is scant support for the position urged on behalf of the applicant. Rather, the authorities tend to treat a breach of the obligation of disclosure in an ex parte Mareva application as giving rise to the right to have the resultant order set aside.[9]
[9] Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; Heydon & Ors v Teplitzki (1997) 74 FCR 7
43 I consider that it is appropriate to classify the obligation imposed upon the deponent of an affidavit under s.16(4) of the Act to set out any relevant matters, as being an obligation which is directory rather than mandatory[10] and for this reason, I do not accept the submission on behalf of the applicant that the failure of Mr Harris to make proper disclosure rendered the restraining order void.
[10] See Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355
The Effect of the Non-Disclosure
44 There is a long line of authority which supports the proposition that full and frank disclosure of material facts must be made on an ex parte application for relief in the form of a Mareva injunction, and that a breach of this obligation entitles a defendant to an immediate discharge of the injunction and the restoration of the position which obtained before the injunction was granted.[11]
[11] Thomas A Edison Ltd v Bullock (supra)
45 I was directed to a line of authority by the second respondent which supported the proposition that the failure to disclose material facts may not warrant the setting aside of an ex parte injunction if the facts involved are not of sufficient materiality to warrant the immediate discharge of the order.[12]
[12] Brink’s Mat Ltd v Elcombe & Ors [1998] 1 WLR 1350
46 I am of the opinion, having regard to the structure of the Act which –
•
upon conviction exposes the owner of a property in respect of which a restraining order has been made to the automatic forfeiture of the property pursuant to the provisions of s.35(1) of the Act;
•
allows forfeiture under the Act to occur in respect of property the subject of a restraining order without further scrutiny by the Court which is called upon to make a restraining order;
that the failure by Mr Harris to make full and frank disclosure in his affidavit filed pursuant to s.16(4) of the Act, is such that it would warrant the immediate discharge of the restraining order if the Court has the power to make such an order given that the property has now been forfeited.
Has the Power of the Court to set aside the Restraining Order lapsed by reason of the forfeiture of the property?
47 The question which arises for my consideration is whether, in circumstances in which I would otherwise make an order setting aside the restraining order, the confiscation of the property pursuant to the operation of s.35(1) of the Act has resulted in the loss of power vested in the Court to do so.
48 It is contended by the respondents that upon the automatic forfeiture of the property which occurred upon the applicant’s conviction pursuant to s.35(1) of the Act, the restraining order was replaced by the operation of the automatic forfeiture order, such that it was no longer operative, with the result that –
“the restraining order is now spent upon forfeiture and therefore there is
no restraining order to reopen”.[13]
[13] Transcript p150
49 In this submission, the respondents rely upon the decision of the Court of Appeal in Director of Public Prosecutions (Vic) v Nguyen; DPP v Duncan.[14]
[14] [2009] VSCA 147, at [117].
50 In that matter, the Court was dealing with an application under s.22 of the Act to extend the time for making an application for an exclusion order. In the course of its judgment, the Court said:[15]
“… An exclusion order under s.22 is an order ‘excluding the applicant’s interest in the property from the operation of the restraining order’. Once property has been automatically forfeited under s.35(1), there is no longer any restraining order in operation in respect of the property. It follows that no exclusion order could be made under s.22 and, hence, there could be no occasion to exercise the power under s.20(1B) to extend the time for making application for such an order.
After forfeiture, the only procedure for seeking an exclusion order is that provided by s.51(1). That procedure is available only to a person other than the defendant. … The power to extend time for the making of such an application is conferred by s.51(3).”
[15] at paragraphs 117-118
51 The respondents further rely upon a decision of the Western Australian Court of Appeal in Centurion Trust Co Ltd v Director of Public Prosecutions (WA).[16] In that matter, the appellant applied for an extension of time to file an objection to an order confiscating property which had been the subject of a freezing order. The Court held:
[16] [2009] WASCA 97
(1)
that if a freezing order was invalid at the time of confiscation, the confiscation would be invalid as the validity of the confiscation was dependent upon the existence of a valid freezing order at the time of the confiscation;
(2)
that if an order setting aside a freezing order was made at some time prior to confiscation, the right to proceed to confiscation would fall away;
(3)
that the statutory language and scheme of the Western Australian Act was such that the right to object to the confiscation of frozen property established by s.79 of the Western Australian Act did not apply after the property the subject of the freezing order had been confiscated.[17]
[17] Although the approach taken by the Court in Centurion was similar to that taken by the Court of Appeal in DPP v Vu, I note that the Western Australian Act contained a specific provision, s.43, which specified that a freezing order would stop being enforced if the property is confiscated.
52 I understand the statement by the Court of Appeal in Nguyen as to the effect upon a restraining order of a forfeiture which occurs pursuant to s.35(1) of the Act, to be that the restraining order at that time becomes spent. In these circumstances, I consider the cases which dealt with the jurisdiction of a court to reopen an order which has been perfected are those which provide guidance as to my ability to now deal with the restraining order.
53 In DJL v Central Authority,[18] the High Court was called upon to consider whether the Full Court of the Family Court of Australia had the power to set aside a perfected order. In the course of its judgment, the Court contrasted the jurisdiction in this regard of a common law court possessing inherent jurisdiction with that of a court exercising jurisdiction conferred by a statute. In the latter case, the Court emphasized that:
“… attention must be given to the text of the governing statutes and any
express or implied powers to be seen therein. …”
[18] (2000) 201 CLR 226
when the question of jurisdiction is considered.
54 In the course of its reasons, the Court observed:[19]
“The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case. Nor is there an inherent power by reason of the description in the statute creating the court of it as ‘a superior court of record’. Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by PtX of the Family Law Act.”
[19] at para 45
55 The appellate jurisdiction of the County Court is conferred upon it by s.53A of that Act, which provides:
“Except where otherwise expressly provided the Court may try hear and determine all appeals referred to in sections 254, 257 and 260 of the Criminal Procedure Act 2009 from convictions or orders of the Magistrates' Court and any appeal to the court by or under the provisions of any other Act and where in any Act any reference or application is made to the County Court the court shall have the same power of making orders with respect to costs and of enforcing those orders as it has in the case of appeals from convictions and orders of the Magistrates' Court.”
56 The terms of s.53A of the County Court Act do not expressly provide the Court with the power to revisit and set aside its own orders which have been perfected. Further, the right of appeal from a decision of this Court to the Supreme Court, tells against an interpretation of the provisions of the County Court Act to this effect. For these reasons, I am satisfied that, in the circumstances of the present case, I do not have the power to set aside the order made by his Honour Judge McInerney, having regard to the intervention in that order of s.35(1) of the Act.
Summary of Findings
57 The findings I have made may be summarised as follows:
(1)
In filing his affidavit in support of a restraining order, Mr Harris was under a duty to inform the Court of any relevant matters. This duty included an obligation to:
(a)
accurately describe the charges which were proceeding against the applicant;
(b)
advise the Court of the fact that the Office of the Director of Public Prosecutions had accepted the position put to it on the applicant’s behalf:
(i)
that there was no suggestion that he had engaged in the commercial trafficking of cannabis; and
(ii)
that it would not be contended that the cannabis crop was being grown for commercial purposes.
(2)
Pursuant to the provisions of s.18 of the Act, the Court was entitled to take into account the lack of commerciality involved in the charges brought against the applicant when assessing whether there were reasonable grounds for making the restraining order which was sought by Mr Harris,
(3) The failure by Mr Harris to properly inform the Court of relevant matters in the course of the ex parte application for the restraining order did not render the order null and void but rather was such that it warranted the setting aside of the order in circumstances in which the Court has the jurisdiction to do so.
(4) Having regard to the forfeiture of the property which has now been effected pursuant to s.35(1) of the Act, the Court does not possess the power to discharge the Restraining Order.
Further Orders
58 In the course of the application, I indicated to the parties that I would set out my findings and hear the parties as to any orders which should be made having regard to those findings. I will hear further submissions from the parties with respect to that issue.
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