The Director of Public Prosecutions for Western Australia v Mansfield

[2005] WASC 59

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- MANSFIELD & ANOR [2005] WASC 59

CORAM:   BLAXELL J

HEARD:   7 APRIL 2005

DELIVERED          :   18 APRIL 2005

FILE NO/S:   CIV 1977 of 2002

MATTER                :Sections 15, 41, 57 and 79 of the Criminal Property Confiscation Act2000 (WA)

BETWEEN:   THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Applicant

AND

NIGEL CUNNINGHAM MANSFIELD
Respondent

ROSALIND JANE MANSFIELD
Second-Named First Objector

Catchwords:

Criminal law - Confiscation of property - Freezing order - Order made on two grounds - One of grounds stated to be under a provision of Act which does not provide for that ground - Whether order should be set aside to extent that it relies on such ground - Alternatively whether order should be amended pursuant to "slip rule"

Criminal law - Confiscation of property - Freezing order - Order made on two grounds - One such ground that an application had been made for examination order - Failure of applicant to serve examination order - Lengthy delay without any examination taking place - Whether freezing order should be set aside as an abuse of process

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 43, s 44, s 48, s 49, s 58, s 59

Interpretation Act 1984 (WA), s 63

Rules of the Supreme Court, O 21 r 10

Result:

Application to set aside and application to amend freezing order each refused

Category:    B

Representation:

Counsel:

Applicant:     Mr T A Staples

Respondent:     Mr M L Bennett

Second-Named First Objector    :    Mr C E Chenu

Solicitors:

Applicant:     State Director of Public Prosecutions

Respondent:     Bennett & Co

Second-Named First Objector    :    Durack & Zilko

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

Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334

Deputy Commissioner of Taxation v Healy [2003] WASC 38

Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400

Gould v Vaggelas (1985) 157 CLR 215

L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590

Packer v Meagher (1984) 3 NSWLR 486

Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446

Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 All ER 569

Case(s) also cited:

B & Ors v State of Western Australia [2002] WASC 298

Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561

Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381

Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297

Director of Public Prosecutions for Western Australia v Bridge & Ors [2005] WASC 36

Dossett v TKJ Nominees Pty Ltd (2003) 78 ALJR 161

Director of Public Prosecutions for Western Australia v Mansfield & Ors [2004] WASC 255

Director of Public Prosecutions for Western Australia v Mansfield & Ors [2003] WASC 186

Forbes (Collector of Customs, NSW) v Traders Finance Corp Ltd (1971) 126 CLR 429

Kirk & Ors v Commissioner of Australian Federal Police (1988) 81 ALR 321

Lewandowski v Lovell (1991) 4 WAR 311

Monaco v Arnedo Pty Ltd (1994) 13 WAR 522

Palfrey v MacPhail & Anor [2004] WASCA 257

Williams v Spautz (1992) 174 CLR 509

1. BLAXELL J: These are my reasons for decision on separate applications to set aside or alternatively amend a freezing order made under the provisions of s 43 of the Criminal Property Confiscation Act 2000 (WA) (the "CPC Act").

The background to the present applications

1. The present proceedings have a long history, commencing with a freezing order made by McKechnie J on 12 July 2002 on the ex parte motion of the applicant. That order froze numerous items of property which were either owned by the respondent or said to be under his "effective control". This latter category comprised items of property held by or registered in the name of the respondent's wife who is the second‑named first objector ("Mrs Mansfield"). On 12 July 2002 McKechnie J also made an examination order under s 58(1) of the CPC Act in respect of a named person or persons. (By reason of s 70 of the CPC Act I can neither name that person or persons nor reveal the contents of the examination order.)

2. The Court has power to make a freezing order under any or all of subs (1), (3), (5), or (8) of s 43 of the CPC Act. In the present instance, the freezing order specified that it was made pursuant to s 43(3)(c), but at the same time (and as required by s 44) stated that it was made on two grounds, namely that:

   "A.An application for an order for examination has been made in relation to the Property (s 43(3)(b));

   B.An application against [a person] for a criminal benefits declaration is likely to be made within 21 days in relation to the Property (s 43(3)(c));"

3. These grounds accurately reflected the contents of the ex parte motion and a minute of proposed orders that were before his Honour. However, it should be noted that the first ground, that "an application for an order for examination has been made in relation to the property" can only arise under s 43(1)(b), and not under s 43(3)(b) as specified in the order.

4. Following the grant of the freezing order there were many applications seeking to have it set aside or varied. A chronology of these proceedings up until 2 June 2004 can be found in the decision of Le Miere J made on that date ([2004] WASC 116). Subsequently there were further applications which were determined by Roberts‑Smith J on 30 November 2004 ([2004] WASC 255). There were then the present applications as well as a further application by Mrs Mansfield (filed on 10 December 2004) to partially set aside, or alternatively, vary the freezing order. (This last application is currently part‑heard before myself.)

5. It is relevant to note that the anomaly in the freezing order which is the subject of the present applications was first adverted to by Barker J in a decision made on 26 September 2003 ([2003] WASC 186) when his Honour stated at [6]:

   "It may be noted in passing that the freezing order was apparently also made on the first ground expressed in the order, that an application for an order for examination had been made in relation to the property. Section 43(3)(b) of the Confiscation Act is referred to in the order as sustaining this ground. However, as far as I can see, nothing in s 43(3)(b) permits the Court to make a freezing order on the ground that an application has been made for an order for examination. However, nothing turns on this observation. No party has challenged the validity of the freezing order granted on 12 July 2002."

6. This comment did not provoke any response from the parties prior to Mrs Mansfield's present application to set aside the order (filed on 21 February 2005).

The present applications

1. Mrs Mansfield applies to set aside the freezing order "to the extent that it is made pursuant to s 43(3)(b) of the (CPC Act) on the ground that an application for an examination order has been made" on the basis that:

   "1.1Section 43(3)(b) does not permit the making of a freezing order on the grounds that an application for an examination order has been made in relation to the Property;

   1.2Alternatively, the obtaining of the freezing order on the grounds that an application for an examination order has been made in relation to the Property was and/or is an abuse of process."

2. In response to this application, the applicant has applied pursuant to Rules of the Supreme Court, O 21 r 10, or alternatively under the Court's inherent jurisdiction to amend the freezing order by substituting "s 43(1)(b)" for "s 43(3)(b)" where it appears in ground A.

Whether the freezing order should be amended

1. It is obviously appropriate that I should firstly deal with the application to amend.

2. The principles to be applied under O 21 r 10 (the "slip rule") are well‑established.  Although, as a general rule an order, once sealed, can only be varied on appeal, an accidental slip or omission may at any time be corrected by the Court on motion or summons without an appeal.  This is so irrespective of whether the omission is due to inadvertence by court officers, by the Court, or by a party's legal representative.  (L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590, 594) However, the jurisdiction should be exercised sparingly, lest it encourage carelessness by legal representatives and expose to risk the public interest in the finality of litigation. (Gould v Vaggelas (1985) 157 CLR 215, 275)

3. An omission or mistake will not be treated as accidental if the proposed correction requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist.  (Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, 447) In general, the test for determining whether a mistake or omission is accidental is whether it would have been corrected at once if it had been drawn to the Court's attention at the time. (Deputy Commissioner of Taxation v Healy [2003] WASC 38 at 21)

4. When there has been considerable delay in applying to amend an order, this in itself does not prevent a party from relying upon the slip rule if the opposite party is not prejudiced.  (Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 All ER 569, 575) Nevertheless, amendment of an order following inordinate and unexplained delay might bring the administration of justice into disrepute. Accordingly, there must come a point where the interests of finality of litigation militate against the exercise of discretion in favour of a party who has failed, by inadvertence, to make an appropriate application at the appropriate time. (Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, 408‑9)

5. In the present instance, there was clearly a clerical mistake in the freezing order made on 12 July 2002 when it specified an incorrect subsection in ground A.  It is also clear that the reason for this mistake is that the exact same error appeared in the ex parte motion and in the minute of proposed orders which were before the Court.

6. The respondent points out that the freezing order was made in the precise terms applied for, and contends that there was no accidental slip or omission by the Court.  However, I do not accept this submission.  Irrespective of any mistake in the relevant documentation, the Court will always be concerned to ensure that the decisions it makes are strictly in accordance with the law.  If the mistake in the present matter had been drawn to the attention of the Court at the time that the order was made, it undoubtedly would have been corrected at once.  Accordingly, and irrespective of the obvious inadvertence of the applicant's legal representatives, there was also an accidental slip or omission by the Court. 

7. It follows that I have a discretion pursuant to O 21 r 10 to correct the error, and I now turn to the question of whether or not that discretion should be exercised.  In that regard there are a number of factors to be taken into account, including the delay in applying to amend, the failure of the applicant to enforce the examination order, and the question of whether or not the proposed amendment is expedient in the sense of it having any practical effect.

8. As to the first of these factors, the applicant has not made any serious effort to explain the delay.  The only reference to delay in the affidavit in support of the application is par 8 which states:

   "This matter was first brought to the ODPP's attention by letter from Durack & Zilko dated 11 February 2005.  The matter had not previously been raised by either the solicitors for the first‑named first objector or those of the second‑named first objector."

9. Quite obviously, this assertion cannot explain the delay following 26 February 2003 when the Hon Justice Barker first pointed out the anomaly in the freezing order.  Since then there have been a number of applications and proceedings on appeal.  Although I do not accept that the respondent will be retrospectively prejudiced if the amendment is allowed, the applicant's unexplained delay in these circumstances obviously does not favour the exercise of my discretion.

10. I also consider it significant that the applicant has not taken any steps towards implementing the examination order made on 12 July 2002. It is particularly relevant that the applicant failed to serve the examination order as required by s 59 of the CPC Act. To my mind it would be inappropriate to validate the ground in the freezing order that "an application for an order for examination has been made" when 2 years and 9 months have elapsed without any effort being made to give effect to that examination order. (I will have more to say about this aspect of the matter shortly).

11. However, in the end, I consider that the factor of greatest significance to the exercise of my discretion is that the proposed amendment will have no practical benefit. This is because an amendment to correct ground A will have no effect on the operative part of the order which provides that the respondent's property is frozen "pursuant to s 43(3)(c)". If the amendment is refused, the freezing order will continue to be in force pursuant to s 43(3)(c), and the examination order will continue to be valid pursuant to s 58. In these circumstances there is no practical necessity for the amendment, and it follows, in my view, that I should refuse to exercise my discretion to amend the freezing order (whether pursuant to O 21 r 10 or pursuant to the inherent jurisdiction of the Court).

Whether the freezing order should be set aside

1. Mrs Mansfield's application to set aside the freezing order asserts two reasons why this should occur; firstly, the error in ground A, and secondly, that the obtaining of the order on the ground that an application for an examination order had been made "was and/or is an abuse of process".

2. The contention that there was or is an abuse of process arises from the fact that the applicant, despite applying for and obtaining an examination order, has not served it nor taken any steps towards enforcing it.  As I understand this submission, I am asked to infer from these facts that the applicant had no real intention of proceeding with the examination when it obtained the examination and freezing orders.  This is said to be an abuse of process falling within one of the categories as outlined in Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334. There, the Full Court approved the decision in Packer v Meagher (1984) 3 NSWLR 486, 492, identifying three classes of abuse:

   "The legal process of a court is being abused when it is being used to exert pressure to effect an object not within the scope of the process:  see Grainger v Hill (1838) 4 Bing (NC) 212; 132 ER 769 at 773; or where it is used for a purpose other than that for which the proceedings are properly designed and exist: see Re Majory, A Debtor; Ex parte the Debtor v FA Dumont LD [1955] Ch 600 at 623; or where the plaintiff in those proceedings is seeking a collateral advantage beyond what the law offers: see Castanho v Brown & Root(UK) Ltd [1981] AC 557 at 567."

3. There is no evidence before me to indicate why the applicant has not proceeded with an examination of the person or persons named in the examination order.  However, there have been explanations offered from the bar table to the effect that investigations are still continuing and that it is not yet known whether or not an examination will be required.  The applicant's counsel further contends that it would have been inappropriate to proceed with examination pending the resolution of the various applications to set aside and/or vary the freezing order.

4. To my mind, these submissions fail to recognise the fundamental purpose of an examination order under the CPC Act. In this regard, the matters which can be the subject of examination under s 58 all concern and are restricted to the identification and location of property that is frozen or might become frozen. Clearly, the Act intends that an examination order should assist the freezing process and not be an end in itself. It is consistent with this purpose that the matters listed in s 58 do not include the identification or investigation of criminal activity.

5. It is also apparent that Parliament intended that an examination order should be implemented reasonably promptly. In this regard, s 59 requires that:

   "(1)The applicant for an examination order must arrange for a copy of the order to be served personally on the person to be examined."

6. Although s 59 does not specify a period within which service is to occur, s 63 of the Interpretation Act 1984 (WA) provides that:

   "Where no time is fixed or allowed within which an act or thing shall be done, such act or thing shall be done with all convenient speed and as often as occasion arises."

7. A contextual consideration which confirms the intention that examinations be carried out promptly is that Pt VI of the CPC Act provides for freezing orders to be set aside only when obtained on grounds other than the ground set out in s 43(1)(b). Parliament obviously did not contemplate that there would be any need to set aside a freezing order obtained solely on the basis that an application for an examination order had been made.

8. It follows that an examination order is ancillary to a freezing order and can only serve the purpose of identifying and locating property which is or might become the subject of that freezing order. In my view, the CPC Act does not contemplate that an examination order which remains unserved and unenforced can, on its own, justify an indefinite continuation of the freezing order.

9. In the present instance, if the freezing order had been made solely on the ground that there was an application for an examination order, then there may have been some basis for arguing that there has been an abuse of process.  However, the freezing order made on 12 July 2002 specifies the additional ground that an application for a criminal benefits declaration was likely to be made within 21 days, and the operative part of the order is based upon that ground alone.

10. Although the freezing order is ambiguous to the extent that it specifies two grounds, it has only ever had force pursuant to the second of those grounds. It follows that it cannot be set aside "to the extent that it relies on the first ground". Even if I am wrong in this construction of the order and it was to be set aside to the extent that it relies on the first ground, it would remain of full force in respect of the remaining ground. In this regard, s 81(2) of the CPC Act provides in relation to objection proceedings that:

    "… if the property was frozen on 2 or more grounds, but the court does not set aside the freezing notice or freezing order in relation to both or all the grounds, the freezing notice or freezing order continues in force as if it had been made on each remaining ground."

Conclusion

1. For the reasons I have indicated, I decline to exercise my discretion to amend ground A of the order, and the application to amend the freezing order will accordingly be dismissed.

2. I also refuse the application to set aside the freezing order to the extent that it was made on the first ground, for the reason that it has only ever had force on the second ground.

3. Although I have refused to amend the freezing order in the manner applied for by the applicant, it is nevertheless flawed in its terms.  I have power under O 29 r 2 and pursuant to the inherent jurisdiction of the Court to amend the order by striking out ground A.  Accordingly, I will hear submissions from the parties as to why I should not take this step.