Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 2)
[2004] WASC 147
RE SMITH; EX PARTE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA (NO 2) [2004] WASC 147
| Link to Appeal : | [2008] WASCA 6 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 147 | |
| Case No: | CIV:2382/2003 | 29 APRIL 2004 | |
| Coram: | ROBERTS-SMITH J | 30/06/04 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave refused | ||
| A | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA CENTURION TRUST CO |
Catchwords: | Criminal law Confiscation of property Freezing order and examination order made ex parte under Criminal Property Confiscation Act 2000 (WA) Property within the jurisdiction Interested party a foreign corporation Service of freezing order out of jurisdiction Objection to jurisdiction Application to set aside freezing order Criminal law and procedure Confiscation of property Criminal Property Confiscation Act 2000 (WA) Ex parte application for freezing order Service of freezing order out of jurisdiction Conditional appearance by interested party Objection to jurisdiction Application for leave to set aside ex parte order |
Legislation: | Criminal Property Confiscation Act 2000 (WA), s 43, s 47(2), s 102(1) Rules of the Supreme Court, O 10 |
Case References: | Altertext Inc v Advanced Data Communications Ltd [1985] 1 WLR 457; [1985] 1 All ER 395 ANZ Grindlays Bank PLC v Fattah & Anor (1991) 4 WAR 296 Director of Public Prosecutions for Western Australia v Hafner [2004] WASC 32 Gray v Liddy (1984) 34 SASR 569 Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 1) [2004] WASC 145 Rogers v The Queen (1994) 181 CLR 251 Walton v Gardiner (1993) 177 CLR 378 Hyde v Agar (1998) 45 NSWLR 487 Keyside Investments (WA) Pty Ltd v Quartz Water Leonora Pty Ltd [2001] WASCA 156 Permanent Trustee Co Ltd v Western Australia & Anor (2002) 26 WAR 1 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Re Cliff; Edwards v Brown [1891] 2 Ch 21 Re La Compagnie Generale D'Eaux Minerales et de Bains de Mer [1891] 3 Ch 451 Re Skaljac; Ex parte Director of Public Prosecutions for Western Australia [2002] WASC 7 The Hagen [1908] P 189 Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869 West Clothing Co Pty Ltd v Sail America Foundation for International Understanding [1988] WAR 119 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA against BRIAN MILLWOOD SMITH
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
Catchwords:
Criminal law - Confiscation of property - Freezing order and examination order made ex parte under Criminal Property Confiscation Act 2000 (WA) - Property within the jurisdiction - Interested party a foreign corporation - Service of freezing order out of jurisdiction - Objection to jurisdiction - Application to set aside freezing order
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Criminal law and procedure - Confiscation of property - Criminal Property Confiscation Act 2000 (WA) - Ex parte application for freezing order - Service of freezing order out of jurisdiction - Conditional appearance by interested party - Objection to jurisdiction - Application for leave to set aside ex parte order
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 43, s 47(2), s 102(1)
Rules of the Supreme Court, O 10
Result:
Application for leave refused
Category: A
Representation:
Counsel:
Applicant : Mr M Mischin & Ms F A Humphries
Centurion Trust Co : Mr M L Bennett & Mr S K Shepherd
Solicitors:
Applicant : State Director of Public Prosecutions
Centurion Trust Co : Bennett & Co
Case(s) referred to in judgment(s):
Altertext Inc v Advanced Data Communications Ltd [1985] 1 WLR 457; [1985] 1 All ER 395
ANZ Grindlays Bank PLC v Fattah & Anor (1991) 4 WAR 296
Director of Public Prosecutions for Western Australia v Hafner [2004] WASC 32
Gray v Liddy (1984) 34 SASR 569
Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 1) [2004] WASC 145
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Rogers v The Queen (1994) 181 CLR 251
Walton v Gardiner (1993) 177 CLR 378
Case(s) also cited:
Hyde v Agar (1998) 45 NSWLR 487
Keyside Investments (WA) Pty Ltd v Quartz Water Leonora Pty Ltd [2001] WASCA 156
Permanent Trustee Co Ltd v Western Australia & Anor (2002) 26 WAR 1
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Re Cliff; Edwards v Brown [1891] 2 Ch 21
Re La Compagnie Generale D'Eaux Minerales et de Bains de Mer [1891] 3 Ch 451
Re Skaljac; Ex parte Director of Public Prosecutions for Western Australia [2002] WASC 7
The Hagen [1908] P 189
Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869
West Clothing Co Pty Ltd v Sail America Foundation for International Understanding [1988] WAR 119
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1 ROBERTS-SMITH J: On 13 November 2003 the Director of Public Prosecutions of Western Australia ("the DPP") filed an ex parte notice of motion for an examination order and a freezing order in this matter.
2 The circumstances leading up to that and which followed it are described in reasons for judgment also delivered today on an application by the DPP for what was described as a "confidentiality order" (Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 1) [2004] WASC 145). I shall not repeat here what I have already set out there. Both reasons for decisions should be read together. There are, however, some additional circumstances which bear on this application and I state them below.
3 First though, I should explain the nature of the present application. It is one made on 15 December 2003 by Centurion Trust Co Ltd ("Centurion"), which is an interested party within the meaning of that term in the Criminal Property Confiscation Act 2000 (WA) ("the Confiscation Act"). Centurion is an interested party in relation to the freezing order made by Scott J on 14 November 2003. Centurion's application is for orders that:
1. Centurion have leave to bring the motion to challenge the jurisdiction of the Court to make the ex parte order dated 14 November 2003;
2. the order be set aside;
3. the funds be released to the order of Centurion.
4 The grounds of the application are that:
"1. The Order was outside the jurisdiction of this Honourable Court.
2. Leave to serve the freezing order on Centurion Trust Company Ltd outside Australia was not sought or obtained by the Director of Public Prosecutions for Western Australia.
3. The property is not crime used property as defined in the Criminal Property Confiscation Act 2000 (the Act) and cannot be the subject of an examination order pursuant to section 43(1)(b).
4. The property is not owned by Smith nor is it in the effective control of Smith and cannot be the subject of a
(Page 5)
- crime used property substitution declaration pursuant to section 22 of the Act.
- 5. The Property is not crime derived property or unlawfully acquired property as defined in the Act and cannot be the subject of a criminal benefits declaration pursuant to section 16 or section 17 of the Act."
5 There has been a multiplicity of applications and hearings in the matter of which this Centurion application is but a part. It is necessary to mention some others because counsel for Centurion on those applications sought to draw them in under the rubric of this application.
6 When EM Heenan J gave leave to the DPP on 9 January 2004 to serve a copy of the freezing order and s 46(6) notice on any interested party in the United Kingdom, he also granted an application to extend the time for the making of an objection under s 79 of the Confiscation Act, to 60 days from the date of service.
7 When the matter generally came before me on 19 February 2004, I varied the ex parte order made by Heenan J so as to authorise service in the Channel Islands rather than the United Kingdom. His Honour's order otherwise stood.
8 On that occasion, and without opposition from the DPP, I also acceded to an application by Centurion that the time limit to the filing of a statutory declaration by Centurion under s 47 of the Confiscation Act be extended from 7 to 28 days.
9 The matter came before me again on 8 April 2004 in respect of various issues. At that stage, Centurion's application had been listed for hearing on 29 April. Mr Shepherd sought (amongst other things) an order further extending the time for Centurion to file a s 47 declaration until after the hearing on 29 April.
10 The DPP opposed that application. The DPP's (belated) submission was that there was no power to extend time for the filing of a statutory declaration under s 47 at all.
11 I accepted that submission. To state very briefly the substance of the view I took and expressed then, s 47(2) of the Confiscation Act stipulates that the statutory declaration must be given within 7 days after the day on which notice is served on the interested person. There is no provision either in that section or elsewhere in the Confiscation Act which
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- authorises a court to extend that time. That is to be contrasted with other provisions in the same Act which impose time limits but also expressly allow for them to be varied. Section 79 is a good example. Section 79(2)(i) stipulates that an objection must be filed within 29 days after service. Section 79(2)(ii) expressly states, or "… within any further time allowed by the court". The lack of any such statutory power in respect of a declaration under s 47 must be taken to reflect the intention of the legislature that the 7 day limit cannot be extended. I so ruled on 8 April 2004.
12 A further point raised by Mr Shepherd on 8 April 2004 was that (as he informed me from the Bar table) the notice which was served on Centurion in Jersey following leave granted by me on 19 February 2004, stipulated that objection had to be taken within 28 days. His submission was that service was accordingly ineffective because the order made by EM Heenan J on 9 January 2004 (which in that respect had not been varied by me on 19 February 2004) had allowed 60 days. That is not a contention with which I need presently deal.
13 So I come to Centurion's substantive application which was heard before me on 29 April.
14 Centurion seeks to challenge the jurisdiction of this Court to make the freezing order on two grounds. The first is that the order made is beyond jurisdiction as it purports to have an extra-territorial coercive effect on Centurion but was made without any jurisdiction being established over Centurion. The second is that the circumstances did not enliven the statutory jurisdiction of the Court to grant a freezing order and the freezing order was an abuse of process.
15 The territorial jurisdiction point was based on s 102(1) of the Confiscation Act and O 10 of the Rules of the Supreme Court ("RSC").
16 Section 102 of the Confiscation Act provides as follows:
"102(1) Proceedings on an application under this Act are taken to be civil proceedings for all purposes.
(2) 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;
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- (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."
17 Order 10 RSC deals with service of process out of the jurisdiction.
18 Order 10 r 1(1) refers to service of a write or notice of a writ. Neither a freezing order nor a notice under s 46(1) of the Confiscation Act falls within that description.
19 Order 10 r 7 states the court:
"… may allow service outside the jurisdiction of any originating process other than a writ, or of any summons, order, or notice in any proceedings duly instituted, whether by writ of summons or otherwise, and the provisions of Rules 3, 4, 5 and 6 of this Order shall apply, mutatis mutandis, to such service."
20 Order 10 r 3 provides that unless service is to be effected within the Commonwealth of Australia, leave granted shall be leave for service out of the jurisdiction of notice of the writ, and not the writ itself.
21 Order 10 r 4(1) requires an application for leave for service out of the jurisdiction to be supported by an affidavit stating the grounds on which the application is made and that in the deponent's belief, the plaintiff has a good cause of action, and showing in what place or country the defendant is, or probably may be found.
22 Order 10 r 4(2) stipulates leave to serve outside the jurisdiction shall not be granted unless it be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction under that order. Order 10 r 5 requires the order giving leave for service out of the jurisdiction to state a time within which an appearance is to be entered.
23 Order 10 r 6 provides that where leave is given to serve notice of a writ out of the jurisdiction, a notice shall, subject to any direction given by the court, be served in the manner in which writs are served.
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24 The provisions of O 10 r 8 should be noted. That rule states:
"Nothing contained in this Order shall prejudice or affect any practice or power of the Court under which, when lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected, the Court may, without purporting to exercise jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceedings, with a view to such person having an opportunity of claiming, opposing, or otherwise intervening."
25 The starting point of Mr Bennett's submission is that a foreign person out of the territorial jurisdiction of Western Australia is prima facie not subject to the jurisdiction of the court. Whilst the court may, in appropriate cases, assume jurisdiction by authorising service of its process under O 10, where a foreign entity is not within the jurisdiction and has not agreed to submit to jurisdiction, it is not amenable to the jurisdiction of the court until the requirements of O 10 have been met - and they were not in this case. Mr Bennett submits that a coercive order granted ex parte against a foreigner not present within the territorial jurisdiction, before notice of the proceedings has been served in accordance with O 10, is a purported exercise of power and is not valid. He relies for these propositions on ANZ Grindlays Bank PLC v Fattah & Anor (1991) 4 WAR 296.
26 It can be seen that the submission is founded on a contention that the grant of the freezing order in this case was a purported exercise of a coercive power over Centurion, outside the jurisdiction.
27 Mr Bennett advances further arguments which attack the order(s) granting the DPP leave to serve the freezing order out of the jurisdiction. They include, that the requirements of O 10 r 7 were not complied with, in that both the confidential affidavit of KLP and the affidavit of Ms Prentice are "more than wholly inadequate" for that purpose. He says that inadequacy is fatal and the order granting leave accordingly ought to be set aside. He also submits that in any event, the freezing order could not have been made in the first instance without an assertion by the court of jurisdiction over Centurion and as no such jurisdiction had been established when the order was made, it was beyond power - and a subsequent grant of leave to serve the freezing order outside the jurisdiction could not retroactively give effectiveness to it (ANZ Grindlays Bank at 300).
(Page 9)
28 The affidavits are said to be inadequate for the purpose of O 10 r 7 because they make no attempt to show this was a proper case for service out of the jurisdiction. At the risk of oversimplifying, the submission is that the application required Scott J, in determining whether it was a case for service out of the jurisdiction, to make an assessment of the nature of the order being made (viz one which could lead to automatic confiscation of the funds) and in turn, whether the applicant had a good cause of action. As to that, it is said the DPP could not have had a good cause of action against Smith, because Smith has no interest in the property; and the DPP could not have had a good cause of action against Centurion because (for reasons Mr Shepherd advanced but which need not set out here) the property was not confiscable property in Centurion's hands.
29 For the DPP, Mr Mischin submits the freezing order made by Scott J was clearly valid, it is not a coercive order so far as Centurion is concerned and there was, in any event, no requirement for leave to serve that order out of the jurisdiction. He contended leave was sought only as a matter of prudence. He submits the DPP is doing no more than complying with the requirements of the Confiscation Act and it is that Act which gives the order extra-territorial operation, not the order itself. He submits the Confiscation Act was held to have extra-territorial operation by Pullin J in Director of Public Prosecutions for Western Australia v Hafner [2004] WASC 32.
30 The factual situation in DPP v Hafner was the reverse of that which obtains here. In that case the DPP had applied for a declaration pursuant to s 30 of the Confiscation Act that certain property had been confiscated to the State by the operation of s 8 and s 10 of the Act. The respondent advanced two arguments that s 8 and s 10 were invalid. One was that they were invalid to the extent they purported to confiscate property outside the territorial limits of the State.
31 The respondent ordinarily resided in Victoria, but at the time of the hearing before Pullin J he was in prison in Western Australia, having been convicted by the District Court in January 2002 of conspiring to possess 244 grams of heroin with intent to sell or supply it to another, contrary to s 6(1) and s 33(2) of the Misuse of Drugs Act 1981 (WA). On the basis of that conviction he had subsequently been declared a "drug trafficker" pursuant to s 32A of the Misuse of Drugs Act. Section 8(1) of the Confiscation Act then operated automatically on that declaration having been made.
32 Section 8(1) provides:
(Page 10)
- "When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated -
(a) all the property that the person owns or effectively controls at the time the declaration is made;
(b) all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act."
33 By s 10(1) of the Confiscation Act, property confiscated under s 8 vests absolutely in the State when the section takes effect in relation to that property. Section 30 of the Confiscation Act provides that:
"(1) The DPP may apply to the court for a declaration that property has been confiscated.
(2) On considering an application, if the court finds that the property described in the application has been confiscated under section … 8, the court must make a declaration to that effect."
34 The DPP sought a declaration that property of the respondent, all of it located in Victoria, had been confiscated under s 8 of the Confiscation Act. Pullin J held (at [42]) that although there is a presumption that legislation does not have extra-territorial effect, a State legislature certainly has power to do so and legislation will be given extra-territorial effect where the legislature expressly or by implication displaces the presumption. Such an exercise of legislative power will be valid only if there is some connection between the subject-matter of the legislation and of the State, but once there is such a connection, the scope and extent of the subject-matter covered by the legislation is entirely for the legislature to determine.
35 I do not need to repeat here the authorities referred to by his Honour, which do, with respect, clearly establish those propositions.
36 Pullin J referred to s 5(3) and s 128(1) of the Confiscation Act.
37 Section 5(3) states:
"This Act applies -
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- (a) to property in Western Australia; and
(b) to the fullest extent of the capacity of the Parliament to make laws with respect to property outside the State, to property outside Western Australia."
38 I respectfully agree with his Honour (at [43]) that s 5(3) and s 128(1) make it clear beyond question that the Western Australian legislature intended that the Confiscation Act should have extra-territorial effect to the fullest extent possible.
39 His Honour went on to hold that the Confiscation Act had the territorial effect of confiscating property in another State of a person convicted in Western Australia and declared by the District Court of Western Australia to be a drug trafficker and made a declaration to that effect pursuant to s 30.
40 Mr Bennett argues that DPP v Hafner is not to the point here, because the freezing order made by Scott J was an order in personamdirected to Centurion (a foreign entity outside the jurisdiction) purporting to restrain Centurion from dealing with the Funds, albeit they being located in Western Australia.
41 In my view, DPP v Hafner is apposite to the present case in that it confirms the legislature's intention that the Confiscation Act should have the greatest possible extra-territorial effect.
42 In ANZ Grindlays Bank the plaintiff commenced an action by writ of summons in this Court, in which it alleged the first defendant was a Jordanian citizen who had been employed as the plaintiff's manager in its branch office at Dubai in the United Arab Emirates from whence he had fled in 1990, after embezzling almost $32 million of the plaintiff's money. It alleged the second defendant was his wife. Neither defendant had ever been in Western Australia. The whereabouts of the first defendant were unknown, but the second defendant was believed to be in Jordan. The only connection with Western Australia was an allegation that $57,000 of the plaintiff's money had been traced to a joint bank account of the two defendants in a Perth bank. The only relief sought by the plaintiff in its action was a declaration that the money belonged to it.
43 The plaintiff obtained a number of orders from this Court, including leave to serve notice of the writ on the second defendant in Jordan, an order for substituted service on the first defendant and an interlocutory
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- injunction restraining the defendants from dealing with the Western Australian bank account.
44 The main issue before Anderson J concerned orders relating to service of translated copies of affidavits and other documents out of the jurisdiction. That aspect is of no relevance to these reasons and I need not mention it further. However in considering that issue, Anderson J made some general observations about the jurisdiction to give leave for service of process abroad.
45 At 299-230 he said:
"A foreign defendant is, prima facie, not subject to the jurisdiction of this Court. He may be made amenable to jurisdiction if service of process can be effected on him within the territorial jurisdiction of the court, that is, Western Australia, or if he agrees to submit to the jurisdiction, or if the court assumes jurisdiction by authorising service of its process under O 10. Where the defendant is not within the jurisdiction and has not agreed to submit to the jurisdiction, he is not amenable to jurisdiction until the requirements of O 10 have been met. At the very earliest, I think jurisdiction would be assumed when notice of the writ was duly served personally or in the substituted manner pursuant to leave obtained under O 10. That is perhaps better expressed in the negative. Jurisdiction would not be assumed until that had been done."
46 Anderson J expressed considerable doubt whether the court has any power to exercise jurisdiction by the grant of injunctive relief against anyone beyond the territorial limits of its jurisdiction until jurisdiction over that person has been properly obtained or assumed. He thought such a purported exercise of jurisdiction would be arguably beyond power. He referred (at 300) to Altertext Inc v Advanced Data Communications Ltd [1985] 1 WLR 457 at 462-463; [1985] 1 All ER 395 at 398-399:
"… in which it was held that an interim injunction in the Anton Piller form (a mandatory order intended for immediate execution) obtained against a foreigner abroad before service of the notice of proceedings had a 'provisional' or 'suspended' effect until the assumption of jurisdiction was complete. With great respect, I do not see how an injunction can have a provisional effect unless, perhaps, in its terms it is expressed to have such an effect. I do not for myself presently see how an
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- injunction which is ineffective for want of jurisdiction at the time it is made can obtain some kind of retroactive effectiveness by reason of the fact that jurisdiction is subsequently obtained."
47 However his Honour went on to say that those were questions which could await another day, for determination after full argument.
48 Other observations made by Anderson J which are pertinent to these proceedings are that O 10 is a complete code on the subject of service out of the jurisdiction (301) and that whether or not there is a requirement for leave to be obtained to serve an order out of the jurisdiction under O 10 depends upon the purpose of service. With those two observations I, respectfully, entirely agree.
49 In relation to the latter, his Honour explained (301):
"If all that is desired to be achieved is to inform the foreign defendant of the progress of the matter, there is, of course, no requirement for leave: see Re Nathan, Newman & Co (1887) 35 Ch D 1. But if the object of service is to bind the person out of the jurisdiction in some way - is an exercise of jurisdiction over that person - service must be effected in accordance with O 10 of the rules: see Re La Compagnie Generale D'Eaux Minerales et de Bains de Mer [1891] 3 Ch D 451. Any order or notice purporting to have any coercive effect or which may provide the foundation for the exercise of jurisdiction over the defendant in some way in the future is comprehended by the provisions of O 10, r 7."
- And at 302 his Honour said:
"It is important to observe, however, that O 10, r 7 applies only to the documents specified in it. It may be seen that they are documents which are intended to have coercive effect or are documents the service of which is to provide the foundation for some exercise of jurisdiction. If leave to serve such documents is not granted, their service is not effective in the sense that no jurisdiction is obtained in virtue of that service; furthermore, the service may be set side in an abuse of process: see Re La Compagnie Generale D'Eaux Minerales et de Bains de Mer (supra)."
51 The full text of the order was:
(Page 14)
- "Upon the application of the Applicant by Ex parte Notice of Originating Motion dated 13 November 2003 and upon hearing Mr M Mischin of Counsel for the Applicant IT IS ORDERED THAT pursuant to sections 43(1)(b) and 43(3)(b),(c) of the Criminal Property Confiscation Act 2000, money standing to the credit of Westpac Bank account number 36-0916 in the name of 'ASIC Welcome Stranger Mining Company (NL Trust A/C)' and held for Centurion Trust Company Limited as Trustee for the Gold Coast Trust and any and all interest payable on such money is frozen (the 'Property').
ON THE GROUNDS THAT
A. The DPP has applied for an examination order in relation to the Property (s.43(1)(b));
B. The DPP is likely to apply against Smith for:
(a) a crime-used property substitution declaration; and
(b) a criminal benefits declaration;
within 21 days after the Freezing Order is made (s.43(3)(b),(c))."
53 The consequences of the order are adumbrated in the s 46(6) notice attached to it. A copy of that notice is annexed to these reasons.
54 Dealing with frozen property is an offence under s 50(1) of the Confiscation Act. Automatic confiscation may occur after 28 days from the date of service of the freezing order, by virtue of s 7(1). The filing of an objection within 28 days is required by s 79. The obligation to give a statutory declaration to the DPP within 7 days after service is imposed by s 47. Failure to do so is made an offence by s 47(3). All these consequences of the making of a freezing order flow directly from, and only from, the operation of the Confiscation Act. They are no part of the freezing order. The order itself is not coercive. Failure to comply with the statutory requirements consequential upon the making of a freezing
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- order does not call for enforcement of the order in any sense. The failure to comply with s 50(1) or s 47(1) is an offence punishable by the ordinary processes of the criminal law. The failure to lodge an objection under s 79 does not require enforcement - it would simply result in the situation in which the property may automatically be confiscated.
55 In these circumstances, it seems to me the freezing order was not an exercise of the jurisdiction of the Court over Centurion (a Western Australian court might be called upon to exercise criminal jurisdiction over Centurion should it be prosecuted for an offence under the Confiscation Act, but that is an entirely different thing and it would turn upon different considerations). There was no requirement to make Centurion amenable to the jurisdiction of the court. There was accordingly no requirement for leave to serve the order or notice of it out of the jurisdiction (ANZ Grindlays Bank per Anderson J at 301).
56 Nor was there any occasion for recourse to O 10 r 8. That is because that rule is concerned with giving a person outside the jurisdiction notice of proceedings which affect property within the jurisdiction, so that person may have an opportunity of claiming, opposing or otherwise intervening in the proceedings. Here, the requirement to give notice to an interested party is a statutory requirement. The statute affords such a party the right to object and imposes certain obligations upon them. That right and those obligations are statutory and are not dependent upon the court giving leave to serve the freezing order or notice of it out of the jurisdiction. There is no scope for the operation of O 10 r 8.
57 That brings me to grounds (1), (3), (4) and (5) of Centurion's application.
58 Centurion submits that the freezing order was beyond the jurisdiction of the court because the grounds on which it was made were incompetent or an abuse of process.
59 Centurion's submission notes that the freezing order was made on three grounds (there were in fact only two), they being that:
(a) the DPP had applied for an examination order in relation to the property, and
(b) the DPP was likely to apply against Smith for a crime-used property substitution declaration and a criminal benefits declaration within 21 days of the making of the freezing order.
(Page 16)
60 It is submitted that the power of the court to make a freezing order pursuant to s 43 of the Confiscation Act where an application for an examination order has been made in relation to the property, requires an existing examination order made on a "bona fide application" advanced on proper grounds. It is said that was not the situation here because at the time of the application for a freezing order, no application for an examination order had been made. The submission turns in part upon the proposition that an application for an examination order cannot be made in the same motion as an application for a freezing order. It is further based in part on a proposition that could not have been a bona fide application made on proper grounds because when the application was made, the property was not, and in the circumstances could not have been, frozen.
61 I have already expressed my conclusion that there was no reason why the examination order and the freezing order could not have been sought in the same application (Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 1) (supra) at [102]). It is not to the point for Centurion to assert that at the time of the application for the freezing order, no application for an examination order had been made. The question is whether at the time the freezing order was made, an examination order had been made (s 43(1)(a)) or an application for it had been made, or was likely to be made in relation to the property, within 21 days (s 43(1)(b)).
62 The examination order was made by Scott J at the same time as his Honour made the freezing order. There is a presumption of regularity, that judicial, public and official acts have been regularly and properly performed. (See Gray v Liddy (1984) 34 SASR 569 and the general discussion of the principle in "Phipson on Evidence" (14th Ed) 1990 [5-15]). That being so, s 43(1)(a) was satisfied. Even if that were not so, the argument that the examination order was made after the freezing order could be accepted (which I do not consider it could), s 43(1) would then have been met because his Honour would necessarily have been satisfied that an application for an examination order had been made and the examination order itself was likely to be made within 21 days - indeed, so far as his Honour was concerned, on that strained scenario - within the next few seconds. But I reiterate, the first expressed ground for the making of the freezing order was that at that time, an application for an examination order had been made. This was (and was expressed to be) the ground under s 43(1)(b) of the Confiscation Act. It was patently correct.
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63 Centurion's argument that the application for an examination order could not have been an application made on proper grounds because when it was made the Funds could not have been frozen, is an attack on the examination order. I think the short answer to that is that Centurion is not a party to proceedings in relation to the examination order. In any event, there is nothing in the material before me which gives rise to an apprehension that the making of the application for the examination order was an abuse of process.
64 Although Mr Bennett complained the making of the freezing order was an abuse of process (presumably because it was made in anticipation of the decision of the AAT ordering release of the funds to Centurion), no submissions were directed to that claim either in Centurion's outline or in oral argument and no authority was cited in support of it.
65 The situation is not one in which there is any element of issue estoppel as such, nor a comparable situation in which in light of what transpired in the AAT, the making of the freezing order could be said to be vexatious or oppressive in that it involved litigating anew a case which had already been disposed of by earlier proceedings (see Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 395), nor otherwise vexatious, oppressive or unfair to Centurion, nor in that it would bring the administration of justice into disrepute. Although the proceedings in the AAT ultimately concerned the same funds, the process was entirely different and the outcome turned on different considerations and legislation. There was no conflict of determinations on the same issue (cf Rogers v The Queen (1994) 181 CLR 251 per Mason CJ at 256-257, Deane and Gaudron JJ at 280-281). Nor could it be said the Court's procedures were invoked for an illegal purpose (Rogers, supra per McHugh J at 286).
66 Centurion's claim that the funds could not have been frozen in turn depend upon its contentions that the property is not crime-used property and so cannot be the subject of an examination order, nor is it or was it owned by Smith nor in his effective control and cannot be the subject of a crime-used property substitution declaration pursuant to s 22 and nor is it crime-derived property or unlawfully acquired property which could be the subject of a criminal benefits declaration pursuant to s 16 or s 17 of the Act.
67 Whether or not these arguments can be advanced on an application under O 58 r 23 to set aside an ex parte order seems to me to depend upon
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- the proper construction of the Confiscation Act and the legislative intent manifested in it.
68 An objection to the confiscation of frozen property may be filed on the ground (amongst others), that the property the subject of the order is not crime-used property (s 82(1)). But the burden of proving that is on the objector, who must satisfy the court it is more likely than not the property is not crime-used.
69 Where a freezing order has been made on the ground property is crime-derived, it may be set aside on objection made under s 79 if the objector establishes that it is more likely than not that the property is not crime-derived (s 83(1)).
70 The court may set aside a freezing order made under s 43(3) if it finds that it is more likely than not that the person who is or will be the respondent of the 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.
71 These are the very matters which Centurion seeks to challenge by its application to set aside the ex parte order. To allow that to be done would be to allow the clear statutory scheme to be circumvented. It cannot have been the legislative intent that s 102(1) would accord the rules applicable to civil proceedings primacy over the express statutory means of determining issues such as those which Centurion wishes to ventilate in this way.
72 I would accordingly refuse Centurion's application for leave to move to challenge the jurisdiction of the court to make the freezing order of 14 November 2003.
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