Applicant v Respondents

Supreme Court of Victoria|2005-09-26|Before: GILLARD J

Restraining Order - s. 16 Confiscation Act 1997 - Joinder of parties - Respondents should not have been joined as parties - Supreme Court (Criminal Procedure) Rules 1998 - Failure to comply with s.16(4) - Order voidable. Fresh application - Notice not required - No right of respondent to be heard - Application by person affected by order to be given notice pursuant to s.17(1) - Application refused.

"(1) An application for a restraining order under the Act ... shall be in Form 6-6A with any necessary modification supported by an affidavit."

5 It is clear from the face of Form 6-6A that a person who may have an interest in the property is not a party to the application. It is noted in the heading that the application is "In The Matter of the Act", and then goes on to provide:

"IN THE MATTER of

* an offender or alleged offender, XY (NAME IN FULL)

* a suspect, CD (NAME IN FULL)

* the property (INSERT DETAILS)."

6 For reasons set out hereafter, based upon the omission in the Act to make any reference to the joining of any parties to the application and the Rules, it is my opinion that Messrs Mokbel and Navarolli are not parties to the application and should not have been joined as such. I will order that they cease to be parties.

7 It is necessary now to go back in time. Mr Mokbel on 24 August 2001 was charged with a number of drug offences. All told there are 18 charges. The charges have not been heard. They are Schedule 2 charges within the meaning of the Act. On that day His Honour Judge Holt in the County Court made a restraining order in respect to certain property owned by Mr Mokbel. The order was made under s.18 of the Act and covered a substantial quantity of property. The order restrained Mr Mokbel, inter alia, from "disposing of or in any way dealing with ... all other property of the respondent, including property acquired after the making of this order."

8 It is clear that the order restrained Mr Mokbel from dealing with any property he acquired after 24 August 2001. On 17 August 2005 it was reported to the Office of Public Prosecutions that a bank account at the South Yarra Branch of the ANZ Bank in the name of Mr Navarolli contained funds belonging to Mr Mokbel. As a result of receiving this information the DPP made application to the Court on 19 August 2005 seeking an order restraining Mr Mokbel and Mr Navarolli from dealing with the bank account.

9 The application was supported by an affidavit sworn by a solicitor employed by the Office of Public Prosecutions. The application came on before Whelan J, ex parte. Section 16(2) authorises the DPP to apply to the Court, without notice, for a restraining order. His Honour heard the application and during the course of it closed the Court. It is clear from the transcript of the proceeding, which occurred over a few minutes, that a request was made that the Court file be subject to restricted access.

10 His Honour made the restraining order. It restrained Mr Mokbel "and any other person" from disposing of, or otherwise dealing with the bank account. I have doubts whether the order should have restrained any person. The order should have dealt with restraining the dealing with specified property. A copy of the order was served upon Messrs Mokbel and Navarolli.

11 Messrs Mokbel and Navarolli engaged a solicitor and on 29 August 2005 filed an application for an exclusion order pursuant to ss.20 and 22 of the Act. The application was returnable on 19 September 2005, and was adjourned to 23 September 2005. On 15 September 2005 another application was made, this time on behalf of Mr Navarolli only, pursuant to the same section. I was informed on 23 September 2005 that the application filed on 29 August 2005 was not to proceed. Accordingly I ordered that it be struck out.

12 After the filing of the first application the solicitors acting for Messrs Mokbel and Navarolli sought from the DPP the material which was relied upon in the application before Justice Whelan on 19 August 2005. The DPP refused to hand over the material. It appears that the DPP took the view he was not obliged to do so. When the application came on, on 19 September 2005 the DPP was still maintaining that he was not obliged to hand over the material.

13 On that occasion Ms Duran, the solicitor who had sworn the affidavit in support of the original application, appeared, but was unable to inform the Court the basis upon which it was contended by the DPP that he was not obliged to hand over any material. The Court made it clear that absent any statutory right the refusal to hand over any material which was used to support the application appeared to be a breach of one of the fundamental principles of natural justice, namely the right of a person affected by the decision to know what was put against him which led to the order being made.

14 Ms Duran was unable to refer the Court to any statutory provision which justified the approach of the DPP, save that she referred to confidentiality and the sensitivity of some material that had been supplied to the DPP's office. Confidentiality can never stand in the way of a court obtaining relevant information. It is no answer to a subpoena or a court order that documents will not be produced because of confidentiality, nor can a witness assert that he or she is not obliged to answer a question because of confidentiality.

15 Mr Parsons SC, who appeared with Mr McLean for the DPP, was unable to assist the Court on 23 September as to the basis upon which it was put that Mr Navarolli being the person affected by the decision was not entitled to know what evidence was before the Court which led to the restraining order being made against property in which he appeared to have an interest.

16 When the matter was raised on 19 September 2005 discussions took place between the lawyers acting for the parties, and material was made available subject to certain conditions of confidentiality and non publication. Mr Richter QC, who appeared with Mr Scott for Mr Navarolli, drew the Court's attention to the decision of Mina Vandetti v DPP, an unreported decision of the Court of Appeal delivered 12 March 2004 in which Bongiorno AJA made some observations about the attitude of the DPP refusing to provide material that appeared on the face of it to be a breach on the rules of natural justice.

17 Once the material was provided to the legal representatives of Mr Navarolli it was apparent that the DPP, when the application was made on 19 August 2005, failed to comply with the provisions of s.16(4) of the Act. This sub-section requires that an application made for a restraining order under, inter alia, s.16(2c) of the Act, must be supported by an affidavit of a member of the police force or a person authorised. The deponent of the affidavit relied upon was neither a police officer nor a person authorised.

18 As a result, the order made by Whelan J was contrary to provisions of the Act. The Court's jurisdiction being statutory and the Court being a superior court, the order was voidable. As this Court is a superior court of unlimited jurisdiction the order is not void, but voidable. When this was observed by the lawyers for Mr Navarolli they drew the error to the attention of the lawyers acting for the DPP. I acceded to an application that a declaration be made that the order dealing with Mr Navarolli's account was void and had no effect by reason of the failure of the applicant DPP to comply with s.16(4a) or (4b), and accordingly the order ceased.

19 Counsel for the DPP then sought to make a further application pursuant to s.16(2)(c) of the Act. Mr Richter who was in Court throughout the whole of the hearing on Friday 23 September, sought to be heard on the application. Mr Parsons opposed that application, submitting that the DPP was exercising his right to have the matter heard without notice.

20 In a nutshell, in the new application it is alleged that Mr Mokbel has an interest in the moneys in that bank account, and that the order of His Honour Judge Holt precluded him from dealing with any property, including after acquired property. The factual issue between the parties, as I understand it, is that Mr Navarolli denies that Mr Mokbel has an interest in any money in the bank account and he, Mr Navarolli should be able to deal with his own property.

21 Section 16(2) relevantly provides:

"(2) The DPP or a prescribed person, or a person belonging to a prescribed class of persons, may apply, without notice, to the Supreme Court or the County Court for a restraining order in respect of property if -"

certain matters are established. By reason of s.16(4) it must be supported by an affidavit of either a member of the force, or a person authorised.

22 The application is supported by a member of the police force. The affidavit states that Mr Mokbel does have an interest in the bank account, and that forms the basis of the belief stated by the deponent of the affidavit. It can be seen that authority is given to the DPP to make an application without notice. The Legislature gives him the authority to make that decision.

23 I propose now to go through the relevant provisions of the Act. The Act was passed in 1997 and partially came into operation on 23 December 1997, and the balance on 1 July 1998. The purposes of the Act are set out in s.1 and include providing for the forfeiture of the proceeds of certain criminal offences, the forfeiture of property of persons convicted of certain offences, and restraining orders concerning property. Part 2 deals with restraining orders.

24 It is pursuant to Part 2 that the present application is made. Despite the fact that the Act is dealing with the proceeds of crime, any application under the Act is a civil proceeding unless the Act provides otherwise - see s.133(1). The Rules of this Court regulating the practice and procedure of a civil proceeding do not apply to an application under the Act - see s.133(2). Any question of fact on an application is to be decided on the balance of probabilities - see s.132.

25 The Court has made rules under s.147 of the Act concerning any proceeding under the Act. I have already referred to them, they are the Supreme Court (Criminal Procedure) Rules 1998. The Rules deal with inter alia forms, notice and evidence. The present application is seeking a restraining order. It is defined by s.14(1) as follows:

"(1) A restraining order is an order that no property or interest in property, that is property or an interest to which the order applies, is to be disposed of, or otherwise dealt with by any person except in the manner and circumstances (if any) specified in the order."

26 It is noted that the order is in respect of property, or an interest in the property. It is not an order restraining a person dealing with the property. But of course the effect of an order is to restrain any person from dealing with the property, except as provided by the order itself. The property sought to be restrained is a bank account in the name of Emidio Navarolli at the ANZ Bank in South Yarra.

27 A restraining order may provide for the meeting of living and business expenses "of any person to whose property the order applies" - see s.14(4.) This provision may be made at the time the order is made or later. On the other hand the Court cannot make any provision for payment of legal expenses out of the restrained property - see s.14(5). In making an order the Court has power to require an undertaking to be given as to damages (see s.14(7)) and the Court may make an order subject to conditions - see s.14(6).

28 Section 15(1) makes clear, a restraining order is made to preserve property in order that the property will be available to satisfy one or more purposes. The purposes are set out in s.15(1) and they are:

"(a) To satisfy any forfeiture order that may be made under Division 1 of Part 3:

(b) To satisfy automatic forfeiture of property that may occur under Division 2 of Part 3:

(c) To satisfy any civil forfeiture order that may be made under Part 4:

(d) To satisfy any pecuniary penalty order that may be made under Part 8:

(e) To satisfy any order for restitution or compensation that may be made under the Sentencing Act 1991."

29 An automatic forfeiture of property is draconian and occurs when a person is convicted of a Schedule 2 offence - see Division 2 of Part 3.

30 Section 16 provides for the restraining order application. Section 16(2) empowers, inter alia, the DPP to apply to the Court for the order. The DPP is entitled to apply without notice to any person. The DPP has applied without notice in the present application.

31 Certain prerequisites must be established. In the present application they are -

(i) That Mr Mokbel has been charged with a Schedule 2 offence, and he has an interest in the property, that is Mr Navarolli's bank account - see s.16(2c).

(ii) The application must be supported by an affidavit of a member of the police force, or some authorised person - see s.16(3). The application is supported by an affidavit of Detective Sergeant James Coghlan of the Victoria Police.

(iii) The affidavit must state the deponent believes certain matters, and set out the grounds on which the deponent holds those beliefs.

(iv) The defendant (defined by s.3) namely Mr Mokbel has an interest in the property - see s.16(4d). Section 17 is concerned with procedure. Section 17(3) empowers the Court to hear the application in closed court, to order that only certain persons may be present, and to make an order prohibiting publication.

32 Section 18 is an important section and makes provision for the determination of the application. In respect to an application under s.16(2)(c) the Court is bound to make the order if it is satisfied that Mr Mokbel has been charged with a Schedule 2 offence (s.18(1a)) and 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. In the present application this means that the Court must be satisfied on the balance of probabilities that there are reasonable grounds for making the restraining order, that is, that Mr Mokbel has an interest in the property identified - see s.16(4d).

33 I repeat that the order is made in respect of property. It is not made against a particular person. There is nothing in the Act or Rules of Court requiring that the application should name a person as a party to it. By reason of s.19(1) the applicant must give written notice of the making of the order to any person if it is made "in respect of property of a person." As stated, the present application names Messrs Mokbel and Navarolli as respondents, and in my view that was incorrect.

34 Despite there being no obligation on the applicant to name a person as a party, or give notice to any person, the Court may require the applicant to give notice - see s.17(1). I will return to this provision later.

35 It follows from the above summary that first, there is no requirement to name a person as a party and secondly, the order is made restraining the disposal of, or dealing in, identified property.

36 Section 20 deals with an application for exclusion from the restraining order.

37 Section 20(1) provides -

"(1) If a court makes a restraining order against property under section 18, any person claiming an interest in the property (including the defendant) may apply to that court for an order under section 21, 22 or 24."

38 It is observed that any person claiming an interest in the property includes "the defendant", that is a person charged with an offence. Section 3 is the definition section and it defines defendant as "in relation to an offence means a person who -

(a) has been or will be charged with the offence; or

(b) has been convicted of the offence -

in respect of whom an application is made under this Act."

39 It follows that Mr Mokbel may apply for an exclusion order under, inter alia, s.22.

40 When a person does make an application he becomes the applicant. He must satisfy certain prerequisites. They are -

(i) The application must be made within 30 days after service of the order - see s.20(1a). The Court may extend time - see s.20(1B).

(ii) An applicant must give notice to the person who obtained the restraining order - see s.20(2). He becomes a party. I refer to Rule 6.08(1a) of the Rules of Court and Form 6 - 6C.

(iii) An applicant for the exclusion order must give notice of the grounds on which it is made (s.20(2)) but there is an exception - see s.20(6).

(iv) An applicant must give notice including the grounds to any person he believes has an interest in the property - see s.20(2b).

41 Section 20 provides for the right to attend and be heard and this includes any person to whom notice is given - see s.20(3). If the DPP wishes to contest the application it must give notice of the grounds on which the application is to be contested - see s.20(4).

42 In the present matter the Court has been informed that if a restraining order is made in respect of Mr Navarolli's bank account he will seek an order pursuant to ss.20 and 22 of the Act. Section 22 is concerned with the determination of an exclusion application from an order based on automatic forfeiture. When the Court is considering such an application the Court is not concerned with whether the original restraining order should have been made on the material before it.

43 The Court is considering and determining an application in accordance with requirements of s.22. The hearing is concerned with different issues which are set out in the section. In my opinion the applicant has the burden of proof on the balance of probabilities. Section 22(a) sets of the matters which have to be established. Section 22(b) provides for the situation where the application is made by a person other than a defendant. The issues are different.

44 It can be seen from the foregoing that the Legislature has drawn a distinction between the obtaining of an order, and an application to exclude property from its operation. The procedures are very different and the jurisdictions are different. Obtaining the order does not require the joinder of any party, or the giving of any notice. The Court has to be satisfied on the balance of probabilities that there are reasonable grounds for making the order.

45 On the other hand the application for exclusion of property from the restraining order requires the application to be made within a certain time on notice to the original applicant, and the applicant seeking exclusion to prove a number of specified matters set out in the statute. This leads me back to s.17. The legal team acting for Mr Navarolli have been present in Court throughout the DPP's present application and the earlier skirmishes.

46 The DPP has not given notice to any party and seeks to have the matter heard without notice. Mr Richter on behalf of Mr Navarolli wishes to be heard on this application. His client has no right to be heard, however, he relies upon s.17. Section 17(1) provides -

(1) The court may require an applicant under section 16(1) or (2) to give notice of the application to any person whom the court has reason to believe has an interest in the property that is the subject of the application."

47 The effect of giving notice is found in s.17(2). It provides -

"(2) Any person notified under sub-section (1) is entitled to appear and to give evidence at the hearing of the application but the absence of that person does not prevent the court from making a restraining order."

48 One looks in vain through the Act and Rules for some indication as to the circumstances in which the Court may require notice to be given or what is relevant when the Court considers the question. Of course on such an application the DPP must persuade the Court of the proof of the matters set out in s.18. This involves different issues to those required to be considered if an application is made by some person to have the property excluded from a restraining order under ss.20 and 22. The person claiming the interest under ss.20 and 22 carry the burden of proof.

49 As I observed, if notice is given under s.17(1) any person so notified has a right to appear, but in my view would only have the right to contest the matters relevant to the application. The Legislature has given the power to the DPP to make the application without notice. This is not surprising because often there is a fear that if notice is given the property may be disposed of, or dealt with in a way that puts it beyond the reach of any order.

50 In my opinion the Court should approach the question of giving notice by giving due weight to the DPP's right to make the application without notice. The fact that there are different questions to be decided on an application for exclusion, and the onus is on the applicant seeking exclusion, leads to a conclusion that it would be indeed a rare case for the Court to require notice to be given.

51 Mr Richter has submitted that since Mr Navarolli's legal team is present, the evidence relied upon by the deponent of the affidavit is not admissible against Mr Navarolli, the risk of Mr Navarolli dealing with the account can be avoided by him giving undertakings to the Court, and due to the draconian effect of any order the DPP should be required to give notice to him before the Court determines whether a restraining order should be made.

52 In order for the Court to consider whether notice should be given, it is necessary for the Court to consider the affidavit material in support of the application. The issues on the application, as I see it, are whether Mr Mokbel has an interest in the bank account, and whether the belief expressed by the police deponent that he does, constitute reasonable grounds for his belief, and that in the circumstances the Court is satisfied there are reasonable grounds for making the order.

53 In my view whether the evidence is admissible against Mr Navarolli is not to the point. I am not persuaded that there is any ground for requiring notice to be given to Mr Navarolli before the order is made. He will ultimately be served with a copy of the order, and if he wishes property to be excluded from the effect of the order he will have every opportunity to make an application for exclusion which will involve the Court in determining different issues.

54 The Legislature has given the right to the DPP to make the decision to bring the application without notice to any person. The application is in respect of property. No person may deal with the property if the order is made. The Court decides the question on the material before it and makes an order against property. Any person who may have an interest in the property may not deal with it. The Legislature has provided a procedure, not to attack the merits concerning the original order, but giving the right to any person to exclude property from the order.

55 The Court in those circumstances is concerned with different issues. The onus is on the applicant for the order.

56 Those matters lead to the conclusion in my opinion that s.17(1) notice would rarely be given, and no ground has been advanced to this Court which leads to the conclusion that Mr Navarolli, or indeed any other person, should have notice of the application.

57 In support of the application Detective Sergeant James Coghlan swore an affidavit on 23 September 2005. He exhibited a number of documents and I have read the affidavit and the supporting material. The evidence concerning any interest of Mr Mokbel in the bank account reveals that Mr Mokbel was examined by the Australian Crime Commission on 17 August 2005 before an examiner, Mr M Bolton, and admitted that money derived by him from gambling was paid into the account, and that money in the account was his.

58 On that material the Court is satisfied that the DPP is entitled to a restraining order against the bank account, and I am prepared to make the order.

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Judgment (26 paragraphs)

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