Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 2)

The case of Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 2) [2004] WASC 147 involves an application by Centurion Trust Co Ltd (Centurion) to challenge the jurisdiction of the Supreme Court of Western Australia in relation to a freezing order made by Scott J on 14 November 2003. Centurion seeks leave to challenge the jurisdiction of the Court to make the ex parte order dated 14 November 2003 and to set aside the order, arguing that the order was outside the jurisdiction of the Court, leave to serve the freezing order on Centurion outside Australia was not sought or obtained by the Director of Public Prosecutions for Western Australia, and the property is not crime used property or crime derived property as defined in the Criminal Property Confiscation Act 2000 (WA). The legal issues the Court was required to decide were whether the freezing order made by Scott J was a purported exercise of a coercive power over Centurion outside the jurisdiction, and whether 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.

In its reasoning, the Court found that the freezing order was not an exercise of the jurisdiction of the Court over Centurion and there was no requirement for leave to serve the order or notice of it out of the jurisdiction. The Court held that the freezing order was not coercive and there was no occasion for recourse to O 10 r 8 of the Rules of the Supreme Court. The Court also found that the freezing order was not beyond the jurisdiction of the court because the grounds on which it was made were competent and there was no abuse of process. The Court held that Centurion's claim that the funds could not have been frozen was an attack on the examination order and Centurion is not a party to proceedings in relation to the examination order. The Court concluded that the clear statutory scheme should not be circumvented and refused Centurion's application for leave to move to challenge the jurisdiction of the Court to make the freezing order of 14 November 2003.

The final orders of the Court were that Centurion's application for leave to move to challenge the jurisdiction of the Court to make the freezing order of 14 November 2003 be refused, and the order be set aside.