Supreme Court of WA|2002-12-09|Before: Barker J

"B" & Ors v State of Western Australia & Anor [2002] WASC 298 (9 December 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : "B" & ORS -v- STATE OF WESTERN AUSTRALIA & ANOR [2002] WASC 298

Director of Public Prosecutions for Western Australia against "A"

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Criminal property confiscation - Objection proceedings in respect of Freezing Order - Application for discovery against Director of Prosecutions for Western Australia - Examinations of objectors pending - Whether discovery available under Supreme Court Rules O 26 in objection proceedings - Whether discovery should be required

First Respondent : State Director of Public Prosecutions

Second Respondent : State Director of Public Prosecutions

1 BARKER J: Before me is an application by certain objectors in objection proceedings instituted under s 79 of the Criminal Property Confiscation Act 2000 (WA) (the Act), for an order for discovery against the Director of Public Prosecutions for Western Australia (DPP).

2 At the commencement of the hearing of the discovery application, having regard to the secrecy provisions set out in s 70 of the Act, especially s 70(1)(e) and (f), I made an order that the application be heard in closed court. It follows that an order restricting publication of the proceedings, including these reasons, should also be made. I tentatively take the view, subject to hearing further from the parties, that so long as the reasons provided by me do not disclose the substance of matters the subject of the examination orders already made or the persons affected by them, it is appropriate that the reasons I give for determining the application in the way I do should otherwise be publicly available. It does not serve the public interest that such reasons pertaining to the proper administration of the Criminal Property Confiscation Act should remain beyond the public gaze.

3 In order to determine this application, it is necessary to provide some background. On 12 July 2002, a Judge of this Court, on the application of the DPP, made a "freezing order" pursuant to s 43(3)(c) of the Act in respect of the property of one "A". On 18 July 2002, a copy of the freezing order was served on one "B". By s 50(1) of the Act, a person must not deal with frozen property in any way.

4 By s 79(1) of the Act, a person may file an objection to the confiscation of frozen property. If a copy of the freezing order was served on the objector, the objection must be filed within 28 days after the day on which the copy of the order was served or within any further time allowed by the Court: s 79(2). By reason of the definition of "court" in par (c) of the Glossary to the Act (which is applied by s 3), the objection must be filed in the court which made the freezing order.

5 By notice of objection dated 14 August 2002 and filed in this Court on the same day, B as well as "C" and "D" took objection to the freezing order. By "Chamber summons for order of objection" also dated and filed in this Court on 14 August 2002, B, C and D (the objectors), applied for orders to the following effect:

(1) Objection be formally taken by the first, second and third objectors to the confiscation of the property the subject of the freezing order made 12 July 2002.

(2) The freezing order be set aside in relation to property owned by the objectors.

(3) Property owned by the objectors, or moneys equalling the value of such be returned to them forthwith.

I will refer to this application as the "objection proceedings".

6 In making this application the objectors rely on the power of the Court under s 81(1) of the Act, on hearing an objection to the confiscation of frozen property, to set aside a freezing order to the extent permitted under ss 82, 83 or 84.

7 By s 80 of the Act, the State is a party to the objection proceedings. In these proceedings, however, only the DPP, as applicant for the freezing order, is referred to in the chamber summons. I apprehend that it is accepted by all concerned that the DPP appears on behalf of the State. I consider the State is, nonetheless, properly to be considered a party to the objection proceedings by force of the Act and should formally be added as a party in the title to the objection proceedings.

8 Insofar as the power of the Court to set aside a freezing order under s 81 is concerned, it is not necessary presently to consider the extent to which the Court's power is affected by ss 82, 83 or 84. At this stage of the objection proceedings, the application has been adjourned and no date has been set for its hearing.

9 Prior to the commencement of the objection proceedings on 14 August 2002, the solicitor for the objectors, on 30 July 2002, met with representatives of the DPP. The purpose of the meeting, according to the affidavit of the solicitor for the objectors dated 5 September 2002 which is before me, was to discuss the objectors' respective interests in certain items of property the subject of the freezing order. It appears that, on 24 July, B made a statutory declaration pursuant to s 106 of the Evidence Act 1906 (WA) concerning that property, in which he identified the objectors C and D, and another person, "E", as persons who "may have an interest" in such property.

10 It appears, according to the affidavit of the solicitor for the objectors, that the statutory declaration was "filed", although I am not sure whether it is said it was filed in this Court. There is no requirement under the Act for a statutory declaration of this or any other sort be filed in relation to the objection proceedings. I assume, although it is not important to the determination of this application, that the statutory declaration or a copy of the statutory declaration was provided to the DPP.

11 An issue, from the objectors' point of view, and a matter apparently discussed at the meeting between the solicitor and the representatives of the DPP on 30 July, was whether an assertion that B, as well as C, D and E had an interest in property or funds standing to the credit of or under the control of a certain company, which may be called "Company F" referred to in the freezing order. In a letter from a representative of the DPP to the solicitors for the objectors dated 6 August 2002, the DPP stated that the DPP had been informed there was not considered to be any evidence that certain funds had been transferred by B or D to Company F, or that A, the person the subject of the freezing order, had conducted himself in a certain manner as alleged on behalf of the objectors.

12 By letter dated 12 August 2002, the solicitors for the objectors wrote to the DPP asserting that they were in possession of financial documents verifying the transfer of moneys to Company F, or to A, on behalf of each of the objectors. It appears some documents were enclosed with that letter in support of that assertion.

13 When, after that letter was sent and the solicitors for the objectors did not receive a response from the DPP, the objection proceedings were commenced.

14 Following the commencement of the objection proceedings, by letter dated 21 August 2002 the solicitors for the objectors gave notice to the DPP that, pursuant to O 26 r 1 of the Supreme Court Rules, the objectors required discovery of "all documents relating to the above proceedings which are, or have been, in your possession custody or power". The "above proceedings", in the context of the letter, were identified as:

"Re: [B] and Ors

DPP v [A] (CIV 1977 of 2002)"

15 By a further letter from the solicitors for the objectors to one "G", apparently an accountant to B and C, dated 21 August 2002, the solicitors advised G that they were acting on behalf of "the above", namely, B and C. The letter stated that the solicitors understood that the DPP held documents on behalf of B and C and that the solicitors "require these documents to verify our clients [sic] claim". The solicitors further stated that they understood that some or all of these documents had been seized by the National Crime Authority (NCA). The solicitors advised G that they would appreciate it if G could make a request "to the DPP/NCA" for copies of documents relating to B and seized from G to be provided to G. I understand that G duly made such a request, either of the DPP or the NCA.

16 In a further letter to the DPP dated 22 August 2002, the solicitors for B and C requested the following:

"1. We be provided with copies of any and all statements made by [A] in relation to this matter;

2. We be provided with copies of any and all documents received from [A];

3. Your office provide us with contact details for [A]."

17 By letter dated 27 August 2002, the DPP wrote to the solicitors for the relevant objectors acknowledging receipt of the letters dated 21 and 22 August 2002, and advising, as indeed was the case, that on 22 August a Judge of this Court had issued an examination order under s 58 of the Act in respect of three persons, including B and D. In response to the request for provision of documentation and other information contained in the letters dated 21 and 22 August 2002, the DPP advised the solicitors in that letter that:

"In our view, in light of the above, it is inappropriate to supply copies of any statements made by [A] in relation to this matter, documents seized from him or to give discovery generally and we will not do so.

In relation to your request for contact details for [A] it is not appropriate for this office to disclose contact details. We will however arrange for [A] to be advised that you wish to contact him."

The availability of discovery in objection proceedings

18 The objectors, by their solicitors, then filed the chamber summons for discovery that is before me now. The substance of the order requested by the application is that the DPP provide discovery of "all documents relating to any matter in question in these proceedings" and that discovery on oath be given within seven days of the making of the order.

19 At the commencement of the hearing of the discovery application, counsel for the objectors provided me with a copy of a letter dated 10 October 2002 from the solicitors for the objectors to the DPP, a copy of which had apparently been faxed to the DPP on 10 October 2002. Counsel for the objectors indicated that, notwithstanding the much wider terms in which discovery had been sought in the application, the objectors now proceeded on the basis that discovery was only required in respect of the documents particularised in that letter, as follows:

"(1) All documents seized from [G, the accountant] relating to:

(b) [another company, which may be called "Company H"];

(2) Documents seized from [A], which show, or tend to show, that he received money from [B], [C], [Company H] or [D].

(3) Records of any shares bought or held on behalf of [A] or any company or trust controlled or operated by [A] or his nominees.

(4) Copies of any bank records or trust statements held in the name of, or for the benefit of:

(b) [Another company, which may be called "Company J"].

(d) [Another company, which may be called "Company K"].

(e) [Another company, which may be called "Company L"].

(f) [Another company, which may be called "Company M"]."

20 This letter also indicated that G's request for the provision of copies of all documents seized from him was in the process of being satisfied (presumably by the DPP).

21 On the hearing of the discovery application, counsel for the objectors contended that it was proper that an order to be made in the wide terms proposed in the letter of 10 October 2002.

22 Counsel submitted that this Court has a broad jurisdiction to grant discovery in any cause or matter pursuant to the Supreme Court Rules O 26 rr 1 and 7. Section 4 of the Supreme Court Act 1935 defines "cause" to include "any action, suit or other original proceeding between a plaintiff and a defendant ... " and a "matter" to include "every proceeding in the court not in a cause". Thus, the objection proceedings, which are "civil proceedings" by reason of s 102(1) of the Act, constitute a "cause" for the purposes of the Supreme Court Act and Rules.

23 Counsel for the DPP, without conceding that the Supreme Court Rules apply to, or that the Court has the power to order discovery in, objection proceedings, did not seek to argue those grounds in the circumstances of this application. Rather, the DPP submitted that, assuming discovery can be ordered, in this instance it should not be ordered owing to the prematurity of the application and the prejudice that might be caused to ongoing investigations - namely, the examination of B and D under the Act - if an order for discovery were made at this stage of the examination proceedings. Additionally, the DPP argued that if discovery were to be granted, it should be limited in its scope.

24 While the Criminal Property Confiscation Act 2000 is novel legislation in this State, with counterparts in other jurisdictions in Australia, the designation of proceedings under the Act as civil proceedings seems to me, in principle, to permit the usual powers of the Supreme Court under the Supreme Court Act and under the Supreme Court Rules in respect of civil proceedings to be exercised in such proceedings. That said, O 26 of the Rules, relied on by the objectors, may be thought not to have been drafted with such proceedings in mind.

25 Order 26 r 1 of the Supreme Court Rules provides for discovery, without order, of all documents which are or have been in the possession, custody or power of another party in a cause or matter relating to any matter in question therein. Rule 1(2) provides that where the cause or matter has been entered for trial a notice requesting discovery shall not be given without the leave of the court. This subrule suggests that the discovery Order has been framed for ordinary civil proceedings in the court, and not the type of civil proceedings facilitated by the Criminal Property Confiscation Act. Proceedings under the Act are not "entered for trial". Rules 6 and 7 empower the Court to make an order for discovery at any time.

26 However, as Seaman Civil Procedure Western Australia at par [26.7.1] says, O 26 does not limit the sorts of civil proceedings in which discovery may be ordered. Indeed, it is said if issues of fact arise in proceedings commenced by originating summons, for example, discovery should be ordered unless good cause is shown to the contrary: Bell Resources Ltd v Turnbridge Pty Ltd, unreported; SCt of WA (Nicholson J); Library No 718.2; 1 July 1988.

27 A similar approach has been taken in recent years to the question of discovery in prerogative writ and judicial review proceedings. In R v Corporation of the City of Tea Tree Gully; Ex parte Concrete Systems Pty Ltd & Ors (1986) 43 SASR 241, the Full Court of the Supreme Court of South Australia held that, under the rules of that court, the court has power in proceedings for certiorari to make an order for discovery of documents by a party to such proceedings. Olsson J, in the course of his judgment, with which Jacobs and Legoe JJ expressed agreement, examined the older English and Australian practice in respect of discovery in prerogative writ proceedings. That practice was that discovery rarely was granted. But, as Olsson J observed at 248, "It seems apparent that the English approach to this question arose solely from historical practice". At 250, Olsson J explained that he had dwelt at some length on evolutionary processes in the English setting "because the review which I have attempted amply demonstrates the creation of self imposed fetters which do not appear to have had any expressed parallel in this State". Having regard to the broad definition of such words as "proceeding", and "cause or matter" in the South Australian Supreme Court Act and rules - similar to the interpretations of those words to be found in the Supreme Court Act and rules in Western Australia - Olsson J could see no reason in principle why discovery might not be ordered in prerogative proceedings. At 251, Olsson J stated:

"Against that background, it immediately becomes apparent that not only do the Rules, as they now stand indicate, in an unambiguous and unqualified manner, that there is power to order discovery in all types of proceedings before the Court, but also that it may, in proper cases, further be ordered in anticipation of the launching of any proceeding."

28 In the Tea Tree Gully case, the Master of the court had ordered discovery in circumstances where an order nisi for certiorari had been granted and the matters in issue, pertaining to the validity of a planning consent, were clearly defined. In those circumstances, as Legoe J observed at 243:

"I cannot see any reason in principle why an appropriate order for discovery of documents should not be made. Indeed in matters such as planning disputes it seems to me that discovery should be the general rule. Today any right or duty exercised by or through some authority (such as a council) is extensively documented. The age of the computer and all its stored material is here (for better or worse), and court proceedings should be adaptable to such present day practices ... "

29 The Tea Tree Gully decision has been referred to favourably in this Court: see Owen J in Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108 The same principle has also been adopted under the Federal Court Act and Rules in relation to the giving of discovery in both prerogative writ proceedings and judicial review proceedings: see, for example, WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175; Re Federal Commissioner of Taxation; Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247; Australian Securities Commission v Somerville (1994) 51 FCR 38.

30 In Ex parte Swiss Aluminium Australia Ltd at 248 - 249, Beaumont J dealt with an application by the taxpayer during proceedings for an application for mandamus for particular discovery of certain documents alleged to be held by the Commissioner of Taxation. He stated:

"The relevant rules of court and the authorities dealing with the availability of discovery in prerogative writ proceedings are summarised in R v DCT (WA); Ex parte Briggs (1987) 71 ALR 86 at 88 - 9. It appears that, earlier, the view was taken that since the right of discovery existed only in aid of civil proceedings, discovery should not be ordered except where the prerogative relief was to enforce a civil right: see Bray's Principles and Practice of Discovery p 3. The modern view is that discovery can be ordered in proceedings for judicial review: see R v Secretary of State of the Home Department; Ex parte Herbage (No 2) [1987] 2 WLR 226. Although the court's function in such proceedings is supervisory, it may well involve some investigation of the facts (per May LJ in Herbage at 235). Once a fact-finding role is assumed by the court, it must follow that the power to order discovery exists even if, as May LJ pointed out (at 236), it should not be often that the power need be exercised."

31 Beaumont J went on to find in this case that where the subject matter of a proceeding is complex, it is preferable that the party against whom discovery is sought be ordered to make general discovery rather than particular discovery. In those circumstances, the party will be obliged to form an informed judgment on a matter well within his knowledge. If his attempt to give general discovery is perceived by another party to be inadequate, the other party may pursue an application for further and better discovery or particular discovery if so advised. This approach was approved by the Full Court of the Federal Court in Australian Securities Commission v Somerville (supra).

32 That the circumstances should be ripe for the grant of an order for general or particular discovery in prerogative writ proceedings or judicial review proceedings is emphasised by what the Full Court of the Federal Court (Bowen CJ, Brennan and Lockhart JJ) said in WA Pines Pty Ltd v Bannerman (supra) at 181 - 182:

"Though the power to require discovery be acknowledged, how should it be exercised? It depends upon the nature of the case and the stage of the proceedings at which the discovery is sought. In the present case, discovery is sought before there is a tittle of evidence to suggest that the Chairman did not have the requisite cause to believe which par 6 of the statement of claim would put in issue. Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim: cases such as Ross v Blakes Motors Ltd [1951] 2 All ER 689, but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. This is not such a case. This is a case where a bare allegation is made by par 6 of the statement of claim and, the paragraph being denied, the plaintiff seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing. As Smithers J said in Melbourne Home of Ford Pty Ltd v Trade Practices Commission [1979] FCA 15; (1979) 36 FLR 450 at 460:

'In the absence of such evidence, the proceeding is essentially speculative in nature. In such circumstances for the court to assist the applicants by making available to them processes of interrogatories and discovery would be to assist them in an essentially fishing exercise and from this the court on established principles should refrain.'"

33 In my view, the same considerations should govern the exercise of the power of the court under O 26 to order discovery in a case such as the present. Such an approach is consistent with what is said in Seaman, Civil Procedure Western Australia at par [26.1.1A]. It is also consistent with an unreported decision of Murray J in closed court made on 27 March 2002: I refer to this decision as Re an Application for Discovery in Examination Proceedings made under the Criminal Property Confiscation Act 2000, unreported; extempore reasons of Murray J; SCt of WA, 27 March 2002. In this decision, which counsel for the DPP properly brought to the attention of the Court and counsel for the objectors, Murray J did not doubt the power of the court to order discovery in examination proceedings under the Act, but declined to do so in the particular circumstances of the case before him.

34 The general rule that discovery should not be ordered to permit fishing is qualified by O 26A; that is, where discovery from non-parties and potential parties is sought. However, O 26A is not relevant to the present application.

35 In my view, there is no reason in principle why discovery cannot be ordered in proceedings commenced by objectors under s 79 of the Criminal Property Confiscation Act. However, and subject to other relevant considerations, discovery should only be given in such proceedings where the matters in issue have become appropriately defined so that discovery does not facilitate a fishing expedition.

Objection proceedings and the workings of the Act

36 At first glance, it may be commented that an unusual feature of the Act is that there may, strictly speaking, be a number of separate proceedings at any one time relating to a particular person or entity. However, when one has regard to the evident purpose and operation of the Act, such an occurrence should not be considered surprising. The primary purpose of the Act, as described in its short title, is to provide for the confiscation in certain circumstances of property acquired as a result of criminal activity and property used for criminal activity. In order to assist in the confiscation of such property, the Act provides a number of means of preventing dealings in "confiscable property". Part 4, Div 1 provides for seizure of "crime-used" and "crime-derived" property. Part 4, Div 2 provides for freezing notices for crime-used and crime-derived property. Part 4, Div 3 provides for freezing orders for confiscable property. Part 4, Div 4 governs dealings with seized or frozen property.

37 Part 5 of the Act generally provides powers in respect of investigation and search. Under Pt 5, Div 2, applications for orders for examination of persons may be made. By s 58(1), a Court (which includes the Supreme Court) may order a person to submit to an examination about any or all of the aspects of certain types of property which are there enumerated. A person who may be the subject of an examination order will not necessarily be the same person said to be entitled to the possession or beneficial use of property the subject of confiscation action under the Act. By Pt 5, Div 3, applications may be made to the Court for "production orders" whereby a person may be required to produce "property-tracking documents". Under Pt 5, Div 6, particularly by s 73(1), a police officer may at any time stop and detain a person if there are reasonable grounds for suspecting that the person has confiscable property, or property-tracking documents, in his or her possession.

38 It follows that, upon the making of a freezing order, as in this case, persons who claim to have an interest in property the subject of a freezing order are not themselves, by reason of the making of the freezing order, "parties" to any "proceedings" under the Act. For example, they are not, as a result of the making of the freezing order, required to attend for examination. Only if an examination order is made under the Act in respect of a particular person, will a person have an obligation to attend an examination. If a person who claims an interest in property the subject of a freezing order wishes to object to the confiscation of the frozen property, then an objection to confiscation must be lodged, as it has been here, pursuant to s 79 of the Act. Upon the making of that application, there is a particular "proceeding" and that is the proceeding which might be called an "objection proceeding", as the heading to s 80 of the Act suggests.

39 As it transpires, in this particular instance each of the objectors B and D has been made the subject of an examination order made under the Act. The usual examination order, and each order in this case, provides that the person to be examined should attend before the court on a date and time to be fixed and submit to an examination about the matters in question. In this case no date and time has yet been set for the examination of either B or D. When held, an examination must be held in camera, that is to say, in closed court: s 60(1); and it is the subject of secrecy provisions: s 70.

40 Often, following the commencement of objection proceedings, the application of the objectors is adjourned pending the outcome of a criminal trial. Otherwise, the application of the objectors is adjourned for a period so that programming orders can be made requiring the filing of affidavits by objectors and other pre-trial requirements prior to the listing of the application for hearing.

Whether discovery is appropriate in this case

41 As explained above, while, in principle, there seems to be no reason why discovery may not be ordered in objection proceedings under the Act, and subject to other relevant considerations, discovery should only be ordered in respect of a matter in question which has become appropriately defined.

42 It might be contended on behalf of the objectors here that the matter in question is whether or not they respectively have an interest in certain property the subject of the freezing order against A. However, in the context of the freezing order, that is to say very little.

43 So far as it appears to be relevant to the interests claimed on behalf of the three objectors, the property in question is that identified in the freezing order par 1(h), (i), (j), (k), (l), (m) and (n). It would appear by inference from the affidavit materials placed before me and the submissions made - although it is far from express - that at least B and possibly C claim some indirect interest in property referred to in those subparagraphs of the freezing order and said to be held by Company F, Company H, I, Company J, Company K, Company L and Company M. But exactly how this entitlement is put on behalf of B, and possibly C, is not at all clear.

44 Some of the documents that appear to have been attached to annexure 4 of the affidavit of the solicitor for the objectors suggest, for example, that C transferred certain funds to a particular beneficiary's bank. Another document suggests that a certain sum was withdrawn in favour of Company F from an account operated by one of the other companies. It may be that each of the objectors B, C and D individually has a right of action against A in respect of moneys paid by them or on their behalf to A or entities controlled by A, or in respect of other property held by A or entities controlled by A, but just how those causes of action would be framed is not yet apparent to me and they have not been clearly outlined before me by counsel on behalf of the objectors on the hearing of this application. That is not to say that such claims cannot be formulated in an acceptable and recognisable way. But whether or not they would result in B, C or D having a claim to the property identified, rather than a personal action against A, is also not clear. At present, the matters likely to be in question at the hearing of the objection application have not been defined in any appropriate fashion.

45 As I have said, before discovery will be ordered in objection proceedings, the matters in issue must be carefully defined so that discovery of documents relevant to the matters in issue can be effective. The reason for this is the reason that underlies the consideration of applications for discovery generally in civil proceedings. Discovery is not intended to be a fishing expedition. This principle is particularly highlighted in relation to the types of civil proceedings that are likely to arise under the Criminal Property Confiscation Act. Where Parliament has seen fit to give the DPP what are, in the end, quite extraordinary powers in relation to the confiscation of certain property under the Act, it should not be thought that discovery of documents in proceedings under the Act will be granted in the ordinary course. However, that is not to say that there may not be appropriate occasions for the making of an order for discovery of documents in such proceedings.

46 In circumstances such as the present, where two of the objectors, B and D, are the subject of examination orders, there is an additional reason why discovery should not be granted in relation to the objection proceedings. The entitlement of the DPP to conduct an examination of relevant persons is an important tool that may enable the DPP to identify property to which the Act relates and which may be confiscated in the public interest. If there were an entitlement at the suit of an objector to discovery of documents in the ordinary course of objection proceedings, in circumstances where the objector is also the subject of an examination order, and discovery was required to be given prior to the conduct of the examination, the evident purposes of the Act in making provision for examination of persons might well be frustrated. This provides a relevant reason why discovery should also be considered premature at this stage of the objection proceedings.

47 As Murray J observed in Re an Application for Discovery in Examination Proceedings made under the Criminal Property Confiscation Act 2000, unreported; extempore reasons of Murray J; SCt of WA, 27 March 2002 (supra), an examination under the Act has a particular function and "may ground the progressing of other proceedings" under the Act.

48 It is to be expected that persons may be required to attend for examination and to answer questions to the very best of their ability and without having prepared for examination by reference to documents held by the DPP. The answers provided may well assist the DPP in making further inquiries in order to meet the public purposes that the Act provides for. In that sense, as Murray J also found, there is no relevant "unfairness" to a person being examined without the benefit of having earlier received and perused copies of documents that the DPP possesses and believes might be important at the examination, at some time prior to the examination.

49 Yet, if an order for discovery were generally available at this stage of objection proceedings, as envisaged by the objectors on this application, materials might have to be supplied by the DPP to persons to be examined that potentially would prejudice the subsequent examination of that person from the DDP's viewpoint and the grounding of other proceedings under the Act in the proper pursuit of the objects of the Act.

50 In my view, it is no answer to that difficulty to say that there are separate proceedings on foot under the Act; for example, in this case, for examination and for objection. As I have already indicated, it can be expected that, in many circumstances, there will be some commonality of such proceedings and that persons who are objectors in one proceeding may be required to submit to examination in another proceeding. The operation of the Act comprehends that likelihood.

51 So far as the application for discovery formulated in the letter of the solicitors for the objectors dated 10 October 2002 is concerned, I would therefore not be prepared to order discovery for the reasons set out above.

52 In any event, it appears the documents referred to in par 1 of that letter are the subject of arrangements whereby copies thereof are to be provided to G. In those circumstances, as a matter of discretion, I would not order discovery of those documents.

53 As to the class of documents specified in par 2 of that letter, there may be a point at which documents which show that A received moneys from the objectors and certain companies associated with them may be relevant in the objection proceedings. However, at the present time, given the lack of particularisation of the basis upon which the interests in such property are claimed, I am not prepared to order such discovery. Additionally, for the reasons set out above, I consider that such discovery is premature by reason of the pending examinations of B and D.

54 As to the classes of documents specified in pars 3 and 4 of that letter, they are in extremely broad terms and constitute fishing. For this reason, in addition to those set out above, I would not require discovery of such documents.

55 If discovery were to become relevant at some point in objection proceedings, it would seem to me most appropriate that general, and not particular, discovery should be ordered, at least in the ordinary case. There will, in any event, at certain material times, be an obligation on the DPP, in conformity with its responsibility as representative of the State of Western Australia in these proceedings, to disclose, if not to the objectors, then to the Court in the hearing of the objection application, any documents that are relevant to the matters in issue.

56 Counsel for the DPP further submits that, in the event the Court were minded to make an order for discovery at this stage of the objection proceedings, such an order must take into account the provisions of Pt 5, Div 5 of the Act, as well as the provisions of s 51 of the National Crime Authority Act 1981 (Cth) read with s 70 and s 79 of the Crimes Act 1914 (Cth). He also submitted that, where access is sought to documents that have been taken from A, it is appropriate to give A the opportunity to be heard on the application for an order for discovery of such documents. While I do not propose to order discovery on this application, it is appropriate to record my observations on those submissions.

57 As to the first part of the submission, Pt 5, Div 5 of the Criminal Property Confiscation Act sets out the secrecy requirements to which I have already referred. Section 70 restricts disclosures about certain matters to anyone except as permitted under s 71. In my view, nothing in s 70(1)(a)-(f) bears on the issue whether discovery should be ordered in an appropriate case or granted on limited terms.

58 So far as s 51 of the National Crime Authority Act 1981 is concerned, it provides that a person to whom the section applies, which includes a member of the NCA, a member of the staff of the NCA or a "hearing officer", who either directly or indirectly, except for the purposes of that Act or otherwise in connection with the performance of his or her duties under that Act, and either while he is or she is or after he or she ceases to be a person to whom the section applies, makes a record of any information or divulges or communicates to any person any information, commits an offence. Section 51(3) of that Act further provides that a person to whom the section applies shall not be required to produce in any court any document that has come into his or her custody or control in the course of or by reason of the performance of his or her duties under the Act. I do not see how this particular provision, when read alone or with ss 70 and 79 of the Crimes Act, has any relevance to the question of discovery.

59 If the DPP has documents in its possession, custody or control that are relevant to any matters in issue, the question of their discovery and production arises by reference to the powers of the Supreme Court under the Supreme Court Act and the Supreme Court Rules. Section 51 of the National Crime Authority Act does not govern the situation.

60 There may, however, arise, in some circumstances, a question whether there is a public interest privilege or immunity that would prevent the discovery and production of any particular documents held by the DPP. For example, if the DPP were holding documents that had been provided to it on a certain basis by the NCA, it might possibly be open to argument that the restricted basis upon which such documents had been provided, having regard to the secrecy obligations arising under the Commonwealth law, gives rise to a public interest privilege or immunity that insulates such documents from discovery. However, such a proposition was not advanced before me and I do not give it any further consideration.

61 Similarly, if the DPP has received or taken documents either voluntarily or under compulsion from A for the purposes of its investigations under the Criminal Property Confiscation Act, it does not seem to me that there is any obligation on the Court or any party arising under the Act to notify A that the application for discovery has been made or to provide A with an opportunity to be heard as to whether or not an order for discovery should be made. A presently does not have any relevant interest in the objection proceedings between the objectors and the DPP and the State of Western Australia, at least so far as discovery of documents is concerned. A may well be a relevant witness at any subsequent hearing on the objection proceedings, but A is not presently a party to these proceedings. Having said that, one can envisage circumstances where a person in A's position may wish to be joined as a party to such proceedings to contest a claim to property made by another person.

62 Nor can the present situation involving A be equated with the situation where a third party, not a party to proceedings, is required to produce documents and wishes to take objection to their production. In such a case, the third party has standing to object to the validity of the requirement and to seek to set it aside on well-established grounds. Here, the relevant materials, if they exist, are in the possession, custody or control of the DPP as a result of the things done well prior to the objection proceedings. The rights of a third party are not relevantly affected.

63 Again, if it is thought by the DPP that, in the special circumstances of the administration of the Criminal Property Confiscation Act, a public interest privilege or immunity arises to prevent or limit the discovery of documents that have been received from a person such as A, then that proposition would need to be explicitly contended for. It has not been raised in that way here.

64 For the reasons set out above, I will not order discovery against the DPP or the State. I would dismiss the application of the objectors for discovery.

Property Confiscation Act 2000

Crime Authority Act 1981

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

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (99 paragraphs)

"B" & Ors v State of Western Australia & Anor [2002] WASC 298 (9 December 2002)

The availability of discovery in objection proceedings

Objection proceedings and the workings of the Act

Whether discovery is appropriate in this case

Parties

Legislation Cited (2)

Cases Cited (6)