Burnett v DPP [2007] NTCA 7

Burnett v DPP [2007] NTCA 7 | Case summary | Zoe

[19]

[1] Questions of law arising out of the operation of the Criminal Property Forfeiture Act ("the Act") have been referred to this Court.

[2] On 28 March 2006 the Director of Public Prosecutions ("the Director") filed in the Supreme Court two applications under the Act. In proceedings number 36 of 2006 the Director sought ex parte orders restraining identified real and personal property of a number of related persons and entities ("the plaintiffs"). The grounds advanced in support of the application were that all the property constituted unexplained wealth of the plaintiffs and that specified property was either crime-used or crime-derived property. Other incidental orders were sought including an order that six of the affidavits filed in support of the application not be provided to the plaintiffs on the grounds of public interest immunity and that disclosure might prejudice an ongoing investigation.

[3] In proceedings number 37 of 2006 the Director sought a declaration that the plaintiff, Martin John Burnett, was at all times after 1 January 1999 taken to be involved in criminal activities. Declarations were sought that property identified in the application was crime-derived and crime-used property and constituted unexplained wealth for the purposes of the Act. Associated declarations were sought that none of the wealth was lawfully acquired. In substance a declaration was sought as to the amount of unexplained wealth together with either payment of the amount or forfeiture of the property.

[4] On 29 March 2006 the Director filed an ex parte application seeking consolidation of the two proceedings.

[5] All applications proceeded without notice to the plaintiffs. On 29 March 2006 a Judge of the Supreme Court ordered that the two sets of proceedings be consolidated. On 30 March 2006 his Honour made orders restraining all of the property identified in the application. The order specified that restraint was made on the grounds that some of the property was crime-derived property and all of the property constituted unexplained wealth of the plaintiffs.

[6] On 30 March 2006 the learned Judge also ordered that information contained in six affidavits filed in support of the application for restraining orders not be provided to the plaintiffs ("confidential affidavits"). The formal order identifies that it was made on the grounds "of public interest immunity and that the Court is satisfied that the release of information contained in the ... affidavits may materially prejudice an ongoing investigation ...". No written reasons were delivered.

[7] A formal order was not made in respect of the applications for declarations. Consideration of those applications appears to have been adjourned.

[8] The Judge ordered that the court be closed during the hearings. No transcript has been made available to the plaintiffs. His Honour did not give reasons for his decisions. A subsequent application by some of the plaintiffs for access to the confidential affidavits was refused. Brief oral extempore reasons were given.

[9] In proceedings number 135 of 2006, the plaintiffs sought a declaration that the conduct of the proceedings before the judge constituted "a denial of procedural fairness" and were invalid. Further, and in the alternative, the plaintiffs sought a declaration that the failure of the Judge to give reasons constituted a denial of procedural fairness.

[10] In proceedings number 153 of 2006, the plaintiffs sought declarations that sections 46(2), 49(4) and 154(1)(a) of the Act are invalid. In essence, the plaintiffs submitted that these provisions substantially impair the institutional integrity of the Supreme Court of the Northern Territory and amount to an impermissible direction to the Court as to the manner and/or outcome of the exercise of the Court's jurisdiction under the Act.

[11] A different Judge reserved for the consideration of the Full Court a number of questions arising from both sets of proceedings. Those questions are set out in paragraphs [19] and [20] of these reasons.

[12] During submissions in this Court, no issue was taken as to the validity of either set of proceedings which have found their way to this Court through references of questions of law. In particular, in proceedings number 135 of 2006 the plaintiffs effectively sought a declaration from a Judge of the Supreme Court that proceedings before another Judge of the same Court constituted a denial of procedural fairness and were invalid. Neither party raised the question as to the power of a single Judge in the exercise of the Court's original jurisdiction to issue prerogative relief against another Judge.

[13] After this Court reserved its decision, the Court sought written submissions on this issue. In proceedings number 153 of 2006, both the Director and the Attorney-General who intervened in those proceedings submitted that as declarations were sought that various provisions of the Act were invalid and prerogative relief was not sought in respect of orders made by another Judge of the Court, the plaintiffs had standing and a Judge had jurisdiction to entertain the proceedings and power to make the orders sought.

[14] In respect of proceedings number 135 of 2006, however, the Director submitted that there is considerable doubt that a single Judge had jurisdiction to entertain the proceedings because a declaration was sought that the conduct of another Judge of the Court constituted a denial of procedural fairness and, therefore, the orders of the Judge were invalid. The Director suggested that as the issues had been fully argued, rather than dismiss the proceedings, sitting as the Court of Appeal the Court should dispense with compliance with the Supreme Court Rules and treat the proceedings as an application for leave to appeal, grant leave to appeal and proceed on the basis that proceedings number 135 of 2006 constitute an appeal to the Court of Appeal. The plaintiffs did not object to that course.

[15] In my opinion, it is unnecessary to canvass the submissions or authorities with respect to these questions. Proceedings number 153 of 2006 were valid and it is unnecessary to determine the validity of proceedings number 135 of 2006. Rather, in proceedings number 135 of 2006, sitting as the Court of Appeal the Court should dispense with compliance with the Rules, grant leave to appeal and treat the matter as having been heard as an appeal.

[16] For ease of reference, these reasons proceed on the basis of the references of questions of law in both sets of proceedings. As will appear later in these reasons, however, in my view in proceedings number 135 of 2006 the appeal should be allowed.

[28]

(iii) Residential property known as 30 Orchard Road, Coconut Grove, Northern Territory being all that land comprised in Certificate of Title Vol 689 Fol 492 being Lot 9164 Town of Nightcliff from Plan LTO 85/065 the registered proprietor of which is Executive Business Strategies Pty Ltd as trustee of the Burnett Family Trust;

(iv) Residential property known as 35 Flinders Drive, Stuart Park, Northern Territory being all that land comprised in Certificate of Title Vol 689 Fol 492 being Lot 4785 Town of Darwin from Plan OP 001415, the registered proprietor of which is Executive Business Strategies Pty Ltd as trustee of the Burnett Family Trust;

(v) Commercial property known as 110 Mitchell Street, Darwin, Northern Territory being all that land comprised in Certificate of Title Vol 689 Fol 492 being Lot 2443 Town of Darwin from Plan DIA 000388, the registered proprietor of which is Executive Business Strategies Pty Ltd as trustee of the Burnett Family Trust;

(vi) The net proceeds of the sale of the property known as 72 Archer Street, Woodford, Queensland 4514, the registered proprietor of which was Spicecane Pty Ltd.

(b) Personal property

(i) BMW 318i Sedan NT 662 589 owned by Spicecane Pty Ltd;

(ii) Holden Commodore SS VT Sedan NT 532 907 owned by Spicecane Pty Ltd;

(iii) Mazda B2600 4 x 2 Std Cab NT 429 603 owned by Spicecane Pty Ltd;

(iv) Ford Fairmont NT 647 197 owned by Martin John Burnett;

(v) Toyota Hilux NT 699 863 owned by James Mick Burnett.

(c) Accounts

(i) ANZ - Spicecane Pty Ltd - BSB 015 901 Acc No 1099-78264;

(ii) ANZ - Executive Business Strategies as Trustee of the Burnett Family Trust - BSB 015 901 Acc No 4967-14145;

(iii) CBA - Monsoon Homes Pty Ltd - Acc No 590310440725.

(d) Solicitors Trust Account - Priestleys Lawyers Pty Ltd Trust Account - monies held on behalf of Spicecane Pty Ltd or Martin John Burnett;

(e) Solicitors Trust Account - Smith & Stanton, Solicitors, 607 Robinson Road, Apsley, Queensland, 4034 - monies held on behalf of Spicecane Pty Ltd or Martin John Burnett.

[30]

(7) The defendant did not direct Riley J's attention to restraining less property than that restrained so that the plaintiffs could meet legal expenses in defending proceedings number 36 and 37 of 2006.

(8) Riley J did not inquire whether he should restrain less property than that sought to be restrained.

(9) An application was made ex parte on 29 March 2006 to consolidate proceeding number 37 of 2006 with proceeding number 36 of 2006.

(10) No notice of the ex parte application for consolidation of proceeding number 37 of 2006 with proceeding number 36 of 2006 was given to any of the plaintiffs, their servants or agents.

(11) On 30 March 2006 the defendant made further submissions ex parte in respect of seeking the restraining orders sought in proceedings number 36 of 2006.

(12) Riley J made orders ex parte on 30 March 2006 restraining all the property sought in the application pursuant to the provisions of the Act.

(13) Other than the formal orders made on 30 March 2006 Riley J did not give any reasons for his decision and/or decisions and orders made on 28, 29 and 30 March 2006.

(14) Riley J did not publish any reasons for his decision and/or decisions and orders made on 28, 29 and 30 March 2006.

(15) No transcript of the ex parte proceedings on 28, 29 and 30 March 2006 has been made available to the plaintiffs, their servants or agents.

(16) Some of the plaintiffs sought access to the confidential affidavits in or around May 2006.

(17) Riley J denied the plaintiffs access to the confidential affidavits referred to in the application made ex parte on 28 March 2006. His Honour did not give formal reasons for his refusal but they can be gleaned from a transcript dated 26 May 2006 provided to the plaintiffs on 7 October 2006.

(18) The plaintiffs' interests in their property, livelihood and reputation were affected by the orders made on 28, 29 and 30 March 2006."

[18] Additional facts placed before the Court during the hearing are set out in the reasons of Mildren J in paras [196] and [198].

[231]

[30] The plaintiffs submitted that when regard is had to the potential impact of restraining orders on persons adversely affected and to the consequences of such orders, the Act is draconian in its effects and it is particularly important that procedural fairness be afforded on an application for a restraining order. In the context of that proposition, it is appropriate to highlight a number of features of significance that emerge from the restraining and objection provisions. They may be summarised as follows:

An application to the Supreme Court for a restraining order under Division 2 may be made ex parte. The Court retains a discretion whether to grant such an application: s 41.

Power is conferred to close the Court and to make orders ensuring the confidentiality of the proceedings: s 42.

A restraining order may be made in relation to specified property if the Court is of the view that there are reasonable grounds for suspecting that the property is "crime-used or crime-derived" or is the subject of an examination order or is funds held in an account that is the subject of a monitoring or suspension order: s 43.

A restraining order may be made in relation to property of a named person in a number of circumstances set out in s 44(1). Those circumstances include the fact that an application has been made, or it is intended that an application will be made within 21 days, for an unexplained wealth or criminal benefit declaration in relation to the named person.

As to the content of the restraining order, "in a restraining order" the Court may make a number of specified orders, including making provision "for meeting the reasonable living and business expenses of the owner of the property": s 46(1).

Although there is no definition of "reasonable living and business expenses", s 46(2) provides that such expenses do not include "legal expenses referred to in s 154": s 46(2). Section 154 concerns legal expenses in relation to proceedings under the Act or criminal proceedings and is discussed in paragraphs [31] - [34] of these reasons.

In contrast to the express power found s 14(3)(b) of the repealed Crimes (Forfeiture of Proceeds) Act, when making a restraining order there is no express power conferred to make provision for the legal expenses of the affected person.

Unlike the Victorian Confiscation Act 1997, there is no express prohibition against the Court providing for legal expenses when making a restraining order: Sypott v The Queen [2003] VSC 41.

While a restraining order is in place, the property cannot be dealt with. Income derived from the property is taken to be part of the property and is also subject to the restraining order.

A restraining order has effect for a period, not exceeding three months, set by the Court when the order is made. On application the Court may extend the duration of the order for a further period not exceeding three months and orders of extension may be made on as many occasions as the Court sees fit.

There is no provision for the making of an ex parte application to extend the duration of the order.

Upon an application for a restraining order, the Court is directed by s 45 to consider each matter advanced by the applicant.

If an order is made, the Court must set out in the order each ground that the Court finds is a ground on which the order may be made: s 45(1)(b).

As soon as practicable after an order has been made, the applicant must arrange for service of the order on affected persons together with a notice summarising the effect of the order and the period for which it applies: s 47(1).

As to confidentiality of information provided to the Court by the applicant, if the Court is "satisfied" that the release of information contained in an affidavit in support of the application "may materially prejudice an ongoing investigation", the Court may order that the information is not to be provided when a copy of the restraining order is served on any person: s 45(2).

Restrained property may be released from the restraining order "to meet reasonable living and business expenses" of the owner of the property: s 49(3). However, for those purposes, "reasonable living and business expenses" do not include "legal expenses referred to in s 154": s 49(4).

The only other provisions that allow for setting aside a restraining order on an application by an affected person are those found in Part 5 relating to objections to restraint of property.

An objection must be filed within 28 days after service of a copy of the order on the objector or, where service has not been effected, within 28 days after the day on which the objector becomes aware, or could reasonably be expected to have become aware, that the property has been restrained: s 60(1)(a) and (2)(a). The time for lodging an objection may be extended by the court.

Upon objection to restraint of property, the burden of proof rests upon the objector to establish a ground of objection specified in relevant sections: ss 63 - 65.

If property is restrained on the grounds that the property is "crime-used", the matters to be established are set out in s 63(1). If the restraint is on the basis that the property is "crime-derived", the facts to be proven are set out in s 64(1).

Other property is dealt with in s 65. In particular, if the order of restraint was made on the basis that an application had been made for an unexplained wealth declaration, the Court may set aside the order if it finds that it is "more likely than not" that the respondent to the unexplained wealth declaration does not own or effectively control the property and has not at any time given it away.

Provision is made in s 66 for objection by an "innocent party" in relation to crime-used and crime-derived property.

The Act is silent as to the use of confidential material in objection proceedings or in subsequent proceedings under the Act.

[248]

[35] As to the operation of the legislative scheme after property has been restrained, the substantive question of forfeiture is dealt with in Parts 6 and 7.

[36] Part 6 of the Act concerns proceedings for declarations. The Director may apply to the Supreme Court for an unexplained wealth declaration, a criminal benefit declaration and crime-used property substitution declaration. If the Court is of the view that it is more like than not that the respondent's total wealth as assessed in accordance with the Act is greater than the lawfully acquired wealth, the Court must declare that the respondent has unexplained wealth. In that situation, the Court must assess the unexplained wealth and specify the assessed value of that wealth. In effect, the affected person must pay the amount assessed to the Territory or forfeit property to that value that is the subject of a restraining order.

[37] Similar procedures are provided in the case of applications for other forms of declarations which, if successful, result in forfeiture of property or a debt to the Territory which may be paid or satisfied through forfeiture of property that is the subject of a restraining order.

[38] Part 7 deals with satisfaction of liability to the Territory and contains provisions for applications by the Director for forfeiture of restrained property. The power to order forfeiture of restrained property is conferred in a number of circumstances, including determinations that the property is owned or controlled by a person declared under the Act to be a drug trafficker or that the property is crime-used or crime-derived.

[39] As mentioned, once an order of restraint is made the burden shifts to the affected person to establish the grounds upon which the order should be set aside. However, in subsequent substantive proceedings relating to declarations and forfeiture, the restraint orders and findings of the Judge who made the restraint orders have no impact upon the burden of proof and are irrelevant to the merits of the substantive applications. In the substantive proceedings for declarations and forfeiture and for release of forfeited property, independently of the existence of a restraining order, in a number of respects presumptions are made adverse to the affected person and the burden of proof shifts to that person: ss 71(2), 75(2), 76(2), 83(1), 83(2), 92(2) and 121(1).

[40] This brief overview of the legislative scheme and its consequences is sufficient to demonstrate that the Act is complex and far-reaching in its impacts. In a number of circumstances, presumptions adverse to affected persons are made and the onus of proof is reversed. Similar legislation in Western Australia has been described as "draconian in its operation": Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; (2006) 226 CLR 486 at [24] and [50]. This is the context in which the issues raised by the plaintiffs are to be considered.

[276]

"The statute or the measures taken pursuant to the statute must be examined in order to determine, first, whether the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government. If the function is not closely connected with the Legislature or the Executive Government, no constitutional incompatibility appears. Next, an answer must be given to the question whether the function is required to be performed independently of any instruction, advice or wish of the Legislature or the Executive Government, other than a law or an instrument made under a law (hereafter 'any non-judicial instruction, advice or wish'). If an affirmative answer does not appear, it is clear that the separation has been breached. The breach is not capable of repair by the Ch III judge on whom the function is purportedly conferred, for the breach invalidates the conferral of the function. If the function is one which must be performed independently of any non-judicial instruction, advice or wish, a further question arises: Is any discretion purportedly possessed by the Ch III judge to be exercised on political grounds - that is, on grounds that are not confined by factors expressly or impliedly prescribed by law? In considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests. An obligation to observe the requirements of procedural fairness is not necessarily indicative of compatibility with the holding of judicial office under Ch III, for many persons at various levels in the executive branch of government are obliged to observe those requirements. But, conversely, if a judicial manner of performance is not required, it is unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion." (footnote omitted)

[277]

[56] In Gypsy Jokers, Steytler P noted that the majority in Kable did not apply the three question test postulated by the joint judgment in Wilson and observed that subsequent authorities reveal that "any suggestion arising from what was said in Kable that loss of public confidence might be a distinct and separately sufficient consideration for the operation of the Kable principle has since been eschewed" [82]. However, as will appear later in these reasons, even if those questions were applied to the challenged sections of the Act, in my opinion the challenge to validity fails.

[57] As part of their proposition that the institutional integrity of the court is compromised by the challenged sections, the plaintiffs contended that the combined effect of those sections is to "impose a rigid rule unconnected with the merits of the particular case and direct the Court as to the manner in which a judicial discretion is to be exercised". In this context, the plaintiffs placed reliance upon the decisions of the High Court in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 and Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173. It is appropriate, therefore, to consider those authorities and the relevant observations and principles emerging from them.

[58] In Lim, the Court was concerned with provisions of the Migration Act 1958 (Cth). Section 54L directed that a "designated" person "must be kept in custody" unless the person was removed from Australia under another section of the Act or was given an entry permit. Section 54R was also a direction. It provided that a "Court is not to order the release from custody of a designated person". The court held that s 54R was invalid.

[59] In a joint judgment, Brennan, Deane and Dawson JJ observed that circumstances could exist in which a "designated person" was unlawfully held in custody and, notwithstanding such unlawful custody, the courts, including the High Court, were directed by s 54R not to order release from custody. Discussing Ch III of the Constitution and the grants of legislative power contained in s 51 of the Constitution, their Honours said (27):

[294]

[70] The effect of the challenged sections is to be considered in the context of the legislative scheme in its entirety and, in particular, in the context of the provisions specifically dealing with the restraining orders and their consequences. The significant features of the restraining order provisions are summarised earlier in these reasons at [30]. Of note from the plaintiffs' point of view is the fact that restraining orders may be made ex parte and may be based upon evidence or assertions that are not disclosed to the affected person. There is no requirement that the Director prove facts in the manner usually applicable to criminal trials. The exercise of the powers conferred by the Act could reach to all real and personal property owned by or effectively controlled by the affected person thereby seriously interfering with their right to enjoy their property and depriving them of the capacity to fund legal representation.

[71] On the other hand, even if it is assumed that in making a restraining order and after a restraining order is made the court is prohibited from making allowance for legal expenses, in my opinion such a restraint on the powers of the court in exercising the jurisdiction under the Act does not compromise the institutional integrity of the court. The following matters are of significance in reaching that view.

[72] First, the court is concerned with the restraint of property in anticipation of subsequent substantive proceedings concerning declarations and forfeiture of the property. While restraining orders interfere with important rights and they have significant consequences adverse to the affected person, in a practical sense they are in the nature of interlocutory proceedings and do not involve a determination of guilt or innocence of criminal charges or a determination of the ultimate issues in the substantive proceedings between the parties.

[73] Secondly, the legislation does not direct the court as to the manner or outcome of the exercise of the jurisdiction. The court is required to receive and assess evidence, make findings of fact and apply the law to the facts. If an application is made to proceed ex parte, the court is given an unfettered discretion in determining whether to accede to the application. Unlike the circumstances in Gypsy Jokers, the discretion with respect to confidentiality is unfettered. The powers contained in ss 42-46 concerning the making of restraining orders and their contents are also unfettered. As to whether restrained property should be released to meet reasonable living and business expenses, again the discretion is unfettered.

[74] The legislative prescription that living and business expenses do not include legal expenses as defined by s 154 does not direct the court as to the manner or outcome of an application for release of restrained property to provide for meeting living and business expenses. The effect of the challenged sections is to confer a jurisdiction that is confined or limited in a particular aspect by excluding identified legal expenses from the ambit of living and business expenses and by providing that the jurisdiction does not extend to releasing restrained property for the purpose of meeting legal expenses in relation to identified proceedings.

[75] Thirdly, in the context of the entire statutory scheme, the function which the court is required to perform is not alien to the judicial function and must be performed judicially. It is not a function that could reasonably be seen as confined in the way Wheeler JA in her dissenting judgment in Gypsy Jokers described the role of the court under the Western Australian legislation, namely, as merely "a step in a process, initial and final stages of which involve the exercise of purely executive power" leaving the court's function "confined to the consideration of one very narrowly framed question" [147].

[76] Fourthly, turning to specific "defining characteristics" of a court, on any reasonable interpretation the challenged provisions do not undermine the independence and impartiality, or appearance of independence and impartiality, of the court. Nothing in the provisions is capable of undermining the confidence of the public that the court will "administer justice according to the law". The functions conferred on the court are not "an integral part of" or "closely connected with" the functions of the Legislature or the Executive Government. It cannot reasonably be said that the court is "a mere instrument of government policy". There is no basis for an inference that the function of the court is required to be performed other than "independently of any instruction, advice or wish of the Legislature or Executive Government" or that the court is to exercise the discretion on "political grounds". There is nothing in the challenged provisions requiring or authorising the court to ignore the rules of natural justice. Whether in the particular circumstances there was a breach of those rules is a separate issue discussed later in these reasons.

[77] Regardless of whether the obligation to give reasons is regarded as an aspect of procedural fairness or a separate requirement as an incident of the judicial process, the Act does not relieve the court of that obligation. The nature and extent of that obligation within the statutory scheme is a different question also discussed later in these reasons.

[295]

[78] One of the significant effects which the plaintiffs asserted necessarily flows from the challenged provisions is the undermining of the ability of the court to ensure equality before the law. In their written submissions cited earlier in these reasons the plaintiffs asserted that "the combination of challenged subsections require and authorise the Court to proceed in a manner that does not ensure equality before the law ...".

[79] As I understand the plaintiffs' contention, because a court is denied the opportunity of making allowance for legal expenses thereby potentially depriving the affected person of the capacity to fund legal representation, the ability of the court to ensure equality is undermined. The plaintiffs combine this effect with the prescription that living and business expenses do not include legal expenses, and that property the subject of a restraining order is not to be released to meet legal expenses, to support the proposition that the combination of challenged provisions "predicates an outcome and the effect of the proscription is to deny a person affected an important right, namely, the right to use his or her property as a fund to defend himself or herself and the ability to have a lawyer of their choice represent them." In this way the plaintiffs assert that given the serious nature and effect of restraining orders, the "combined prohibitions and directions in the challenged subsections ... clearly compromises the impartiality and the reputation of the Court as a place where justice is administered."

[80] It is readily apparent that an ex parte application for a restraining order, particularly when confidential material is relied upon by the Judge, places the affected person at a significant disadvantage in connection with restraint of property and objections to restraint. That disadvantage continues in subsequent objection proceedings by reason of the reversals of onus of proof. Similarly, there is an obvious disadvantage if an affected person is unable to fund their own legal representation. In my opinion, however, the possibility that these effects will ensue does not attract the reasoning that the court is required or authorised to sanction relevant inequality before the law.

[81] The plaintiffs relied upon the observations of Gaudron J in Nicholas cited earlier in these reasons in which her Honour identified that the essential character of a court "necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law ... ." However, there is nothing in the challenged sections that authorises the Court to deny an affected person relevant equality before the law. Nor do those provisions cause relevant inequality.

[82] The following remarks in the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in Baker are of relevance to the suggestion of a constitutional restriction in this regard upon State legislative power:

[299]

[84] In my opinion, leaving aside the reservations expressed in the joint judgment in Baker, and applying the observations of Deane and Toohey JJ, there is nothing in the challenged provisions or their effect which undermines the capacity of the court to treat the affected person "fairly and impartially" as an "equal before the law" to the Director or another affected person. As I have said, the consequence of a restraining order might be to place the affected person at a disadvantage, but the existence of that disadvantage does not undermine the capacity of the court to comply with its duty "to extend to the parties before it equal justice" as that expression is properly understood. The court retains all its inherent powers necessary to ensure that the parties are treated "fairly and impartially as equals before the law".

[85] In these circumstances, and bearing in mind the features to which I have referred in paras [72] - [77], in my opinion the existence of the possibility that in a particular case the effect of a restraining order might be to restrain all the property of an affected person and deprive that person of the capacity to privately fund legal representation does not compromise the institutional integrity of the court. I have reached this view notwithstanding that the ultimate effect might be to deprive the affected person of legal representation in connection with proceedings under the Act or criminal charges relevant to proceedings under the Act. The fundamental defining characteristics of the court are present and what might be seen to be undesirable features of the procedures set out in the legislation or the consequences of a restraining order do not undermine the institutional integrity of the court. If the effect of an order is to deprive an affected person of legal counsel because of a lack of capacity and a refusal of publicly funded legal assistance, and if the consequence of a lack of representation would be to deprive the affected person of a fair trial or to create injustice or oppression, the ultimate remedy lies in the hands of the court by way of a stay of proceedings.

[86] As mentioned, in arriving at this view I have assumed in favour of the plaintiffs' case that in determining whether to restrain property and, if so, how much property to restrain, the court is precluded from making allowance for legal expenses. If, however, the court possesses a power to decline to restrain property in order to make allowance for legal expenses, the entire foundation of the plaintiffs' case crumbles. I turn to that question.

[306]

[91] The passage I have cited from Electric Light was applied by the High Court in Mansfield to the Criminal Property Confiscation Act 2000 (WA). The Western Australian legislation is a scheme similar to the Territory legislation under consideration and provides for confiscation of property acquired as a result of criminal activity or used for criminal activity. Jurisdiction is conferred upon the Western Australian Supreme Court and the legislation provides that the proceedings are to be "taken to be civil proceedings for all purposes". Provision is made for freezing orders in terms similar to restraint under the Territory Act, including a provision that an application for a freezing order can be made ex parte.

[92] Section 45 of the Western Australian legislation is similar to s 46 of the Territory Act. It states that "in a freezing order" the court may "provide for meeting the reasonable living and business expenses of the owner of the property".

[93] The Western Australian legislation makes no mention of legal expenses. Reliance was placed on the absence of specific mention in view of previous legislation which had specifically provided that a freezing order "may provide for meeting the reasonable living and business expenses of the person whose property the order applies to, and the reasonable costs and expenses of the person defending any criminal charge." In addition, reference was made to the Second Reading Speech introducing the new scheme under consideration by the High Court. The Parliamentary Secretary had said that under the Bill no frozen property could be released for the payment of legal expenses, which statement accorded with explanatory notes accompanying the Bill asserting that there was "no power" in the Act for a court to release money for payment of legal expenses.

[94] In that context, the High Court in Mansfield was called upon to determine whether the Western Australian Supreme Court had the power to require the DPP to give an undertaking as to damages and whether it was permissible for the court to leave property aside from a restraining order for the purposes of use in meeting legal expenses. The reasoning of the court is instructive.

[95] In a joint judgment of five Justices, after applying the reasoning in Electric Light, consideration was given to "the scope of the power when making a freezing order to attach conditions or require the provision of undertakings so as to diminish the possibility of oppression and injustice" [10]. The following remarks of Gaudron J in Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 at 205 were held to apply:

[322]

[106] As is apparent from these reasons, I am of the view that even if the court does not possess a power when making a restraining order to decline to make an order over property for the purpose of allowing for legal expenses, the plaintiffs' case as to invalidity is not made out. In order to reach that view I did not find it necessary to determine the nature of the "right" to legal representation. More particularly, I did not need to determine whether the right asserted by the plaintiffs to use their property to secure the services of a lawyer of their choice to represent them exists. However, as this asserted "right" was the subject of submissions, I will indicate my view.

[107] The plaintiffs submitted that the "right" for which they contended is so important or fundamental that a conferral of power to restrain property and thereby to deprive the plaintiffs of their capacity to fund legal representation privately compromises the institutional integrity of the court. At the heart of this proposition is the existence and nature of the "right" for which the plaintiffs contended.

[108] In the context of a criminal trial, the question of a right to a fair trial and to legal representation was considered by the High Court in McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575 and Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. In my opinion, neither of those authorities establish the fundamental premise upon which the plaintiffs' case is based.

[109] In McInnis the appellant had been denied legal aid and sought an adjournment of his trial for the purpose of approaching the legal aid authority for reconsideration of his application. The adjournment was refused and the trial proceeded with the appellant representing himself. Following conviction the appellant's appeal to the Court of Criminal Appeal was dismissed. An application for special leave to appeal was refused.

[110] Barwick CJ observed that the question before the Court of Criminal Appeal was not whether an adjournment should have been granted, but whether, on the assumption that the adjournment should have been granted, the refusal resulted in a miscarriage of justice. His Honour continued (579):

[361]

"Whilst, however, the stay of proceedings granted by Else-Mitchell J cannot be justified upon the ground that the action itself is vexatious (see Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 at 720), nevertheless, we agree, with respect, with Else-Mitchell J when he said that the inherent power of the court to stay an action is not, to use his own words, 'confined to closed categories of cases of which vexatious suits is one illustration. It is a power which is exercisable in any situation where the requirement of justice demands it'. There are a number of grounds, both statutory and otherwise, upon which a stay of proceedings may be granted. Some of these are referred to in Chitty's Archbold's QB Practice, 12th ed, vol 2, pp 1374 et seq_; Halsbury's Laws of England_, 3rd ed, vol 30, pars 767, 768, and the notes to Order XIV, r 27, at pp 205-209 of Walker, Supreme Court Practice (NSW), 4th ed (1958). Order XIV, r 27, applies to an application for a stay of proceedings if made before the commencement of the trial of an action and here the trial had commenced in the sense that appearances had been announced and the jury had been empanelled. But, quite apart from the procedure prescribed by the rule, there can be no doubt that this Court has an inherent jurisdiction to endeavour to ensure that the pursuit of its ordinary procedures by litigants does not lead to injustice and for this purpose to grant in the exercise of its discretion a stay of proceedings, whether permanent or temporary, upon such conditions or terms (if any) as may seem appropriate in the particular circumstances and that this is a jurisdiction which may be exercised at any stage of the proceedings where it appears to be demanded by the justice of the case. However, it must always be borne in mind that a stay of proceedings should not be lightly granted. The question always remains whether in any particular case the jurisdiction should be exercised and whether it should be exercised before the trial or during the conduct of the trial by the trial judge. ..." (my emphasis)

[376]

[138] The joint judgment in Batistatos observed that some of the considerations applicable in criminal matters do not exist with the same force in civil litigation "where the moving party is not the State enforcing the criminal law". In proceedings under the Act, however, while designated civil proceedings, the State is the moving party and the proceedings are closely linked to matters of a criminal nature. In these circumstances, it might be said that many of the matters applicable in criminal proceedings are of significance to proceedings under the Act.

[139] The inherent power to prevent unfairness or injustice may be exercised at any stage of proceedings before the court. For example, on an application for a restraining order the court may determine that material relied upon by the court should not be disclosed to the affected person. However, I see no impediment to the court endeavouring to minimise the disadvantage necessarily flowing to the affected person in such circumstances by permitting disclosure of the confidential material either to counsel independent of the parties appointed to assist the court, or to counsel acting for the affected person, having received an undertaking from such counsel that the confidential information will not be disclosed to any person. In this way, subject to the obvious disadvantage flowing from the fact that the affected person is not given access to the confidential material, the unfairness that might otherwise be caused by the fact of confidentiality is ameliorated and legal counsel, with knowledge of the confidential material, is able to represent the interests of the affected person.

[140] As to the possible result that restraint of property deprives an affected person of the capacity to fund legal representation and legal aid is refused, if the court is of the view that proceedings under the Act or a criminal prosecution against the affected person will be unfair by reason of lack of representation, the court will possess the discretion to stay the proceedings. The State, through the Director, having chosen to seek restraint of all property, or at least so much of an affected person's property as to deprive that person of the capacity to fund legal representation, and the court having stayed the proceedings, it will be in the hands of the State to ensure that the affected person is able to secure legal representation and, thereby, fairness in the proceedings. If appropriate, in conjunction with a stay of proceedings or subsequently, the court could revoke all or part of the restraining orders or refuse to extend all or part of the orders pursuant to s 51.

[141] In my opinion, the existence of the inherent power identified in the authorities to which I have referred provides a final answer to any contention that the institutional integrity of the court is compromised by the conferral of a power to restrain property to the extent that restraint might deprive the affected person of the capacity to fund representation. The underlying propositions that depriving the plaintiffs of the capacity to fund representation will necessarily result in both a failure to provide equal justice before the law and in proceedings that are unfair to the plaintiffs, cannot be sustained. The court possesses the independence, impartiality and power to prevent such consequences occurring. The institutional integrity of the court is not compromised.

[377]

[142] The agreed facts are set out in para [17] of these reasons and additional facts are noted in paras [196] and [198] of the reasons of Mildren J. The essential facts upon which the plaintiffs' base their case that they were denied procedural fairness are as follows:

The plaintiffs were not given any notice of the applications.

The plaintiffs were not given any opportunity to be heard in respect of the application for restraint of property.

The Judge relied upon information contained in six confidential affidavits that has not been made available to the plaintiffs.

The Director did not direct the attention of the Judge to the possibility of restraining less property than that restrained for the purpose of enabling the plaintiffs to use unrestrained property to meet legal expenses in connection with proceedings under the Act.

The Judge did not enquire whether he should restrain less property than that sought to be restrained in order to make allowance for legal expenses.

Other than the formal orders identifying that the property was restrained on the grounds that it is crime-derived property and constitutes unexplained wealth, the Judge did not give any oral or written reasons for his decision to restrain the property.

No transcript of the proceedings before the Judge has been made available to the plaintiffs.

"The plaintiffs do not have any other real property, bank accounts or motor vehicles" and their "interests in their property, livelihood and reputation were affected by the orders" of the Judge.

[143] In their written submissions, although the plaintiffs accepted that s 41(3) expressly authorises the making of an ex parte application and "to that extent the audi alteram partem rule has been expressly or by necessary implication modified", nevertheless they submitted that the accumulation of the factors I have identified constituted a denial of procedural fairness. As a consequence, argued the plaintiffs, the orders are invalid by reason of jurisdictional error.

[144] The plaintiffs' written submissions identified two matters as at the "heart" of their case. First, that "the ex parte application made before his Honour and the defendant's use of confidential affidavits ... precluded the plaintiffs from arguing why orders should not be made or, at least that orders should not be made in respect of all their property so that they could use some of that property to pay legal expenses" in connection with proceedings under the Act. Secondly, the failure of the Judge to give reasons which the plaintiffs contended were "essential in order to inform the plaintiffs as to the basis for the decision and the material facts his Honour relied upon".

[145] In Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, the coroner had declined to permit parents of a boy whose death the coroner was investigating to make a closing address concerning the evidence. The joint judgment of Mason CJ, Deane and McHugh JJ identified the critical question as being whether the Act under which the coroner was conducting the inquiry displayed "... a legislative intention to exclude the rules of natural justice and in particular the common law right of the appellants to be heard in opposition to any potential finding which would prejudice their interests." (598 - 599). The judgment identified the principle of construction in the following passage (598):

[383]

[149] In the particular statutory context to which I have referred, the requirements of procedural fairness at the time of an application for a restraining order are different from those requirements that apply at the time of a substantive proceeding for forfeiture of restrained property. In substance, the Judge was dealing with an interlocutory application and was not determining the final issue between the parties. While the consequences adverse to the plaintiffs brought about by a restraining order must be borne in mind, including the reversals of the onus of proof in objection proceedings, nevertheless at the interlocutory stage of restraint which has as its object the preservation of property and involves findings of no relevance to a determination of the ultimate issue between the parties relating to forfeiture, it is not surprising that the Legislature might specifically take measures which would ordinarily be frowned upon as constituting a denial of procedural fairness. At the interlocutory stage the Legislature has struck a balance in favour of preservation of property and confidentiality of information that might materially prejudice an ongoing investigation. By way of contrast, in the subsequent substantive proceedings relating to forfeiture, there is no specific provision authorising an ex parte application or conferring a discretion to rely upon material not disclosed to the plaintiffs.

[150] In connection with preservation of relevant property, the Act specifically provides that an application for a restraining order may be made ex parte. In this way the statute has governed the content of the requirements of procedural fairness in the context of applications for restraining orders by expressly providing that the Court has a discretion to hear and determine such applications without notice being given to the affected person and without hearing from the affected person or from anyone on behalf of the affected person. While the Judge possessed a discretion to decline to hear the application unless notice was given to the plaintiffs, the course followed was expressly authorised by the Act. In these circumstances the absence of notice to the plaintiffs did not amount to a denial of procedural fairness.

[151] Similarly, the statute expressly confers a discretion to close the court and prohibit publication of any report of the proceedings. Further, if an ongoing investigation exists and the Judge is satisfied that release of information contained in an affidavit in support of the application for a restraining order might materially prejudice such an investigation, s 45(2) confers a discretion not to release the information to the affected person. The Act has expressly modified the feature of procedural fairness that ordinarily requires that a party to proceedings be informed of the material relied upon by a Judge in making an order adverse to the interests of the party.

[152] It is not necessary to determine the precise ambit of s 45(2) as the Judge also possessed and exercised the inherent power to direct that information remain confidential on the ground of public interest immunity. On one view, s 45(2) is worded oddly because it states that the court may order that information contained in an affidavit in support of an application for a restraining order not be provided when a copy of the restraining order is served on any person. Service of a restraining order is required by s 47, but neither s 47 nor any other section in the Act requires that information contained in an affidavit in support of an application be provided to an affected person when serving a copy of the order. On the other hand, s 45(2) may have been enacted with a view to negating the usual requirement that when an order is made on an ex parte application, any affidavit or other material filed in support of the application should be served upon the affected person. The Legislature may also have enacted s 45(2) in anticipation of r 92.06(3) which specifically provides that except as provided by the Act, when notice of an application is served on a party the notice is to be accompanied by a copy of all affidavit evidence in relation to the application.

[153] Whatever view is taken of the wording of s 45(2), it reflects a legislative concern to maintain confidentiality of information that "may materially prejudice an ongoing investigation". It is plain that notwithstanding the usual requirement that a party have knowledge of the material relied upon by a court, the Legislature intended to modify this aspect of procedural fairness by conferring upon the court a discretion to deprive the affected person of knowledge of such material should the court be satisfied that disclosure might "materially prejudice an ongoing investigation".

[154] Returning to the procedures followed by the Judge in granting the restraining order, it follows from these reasons that in my opinion it is plain from the statutory context and express statutory provisions to which I have referred that the procedures followed by the Judge in hearing and determining the application for a restraining order did not involve any breach of the requirements of procedural fairness applicable to the particular proceedings before the Judge. Other avenues such as requiring notice to be given to the plaintiffs and permitting the disclosure of confidential material to independent counsel or counsel retained by the plaintiffs following an undertaking that the material would not be disclosed to the plaintiffs were available to the Judge. However, the failure to adopt those alternative procedures did not involve any breach of the relevant requirements of procedural fairness. The course followed by his Honour was expressly authorised by the statute.

[155] As to the failure of the Director to bring to the attention of the Judge the possibility of restraining less property for the purpose of enabling the plaintiffs to use unrestrained property to meet legal expenses, in my view it cannot be said that such a failure, either in itself or in combination with the other matters relied upon by the plaintiffs, involved a lack of procedural fairness. Similarly, the failure of the Judge to enquire about such a course is not an aspect of procedural fairness. While these features of the proceedings before the Judge might be relevant to other forms of challenge to the orders for restraint of property, such failures cannot be elevated to a denial to afford the plaintiffs relevant procedural fairness.

[394]

[163] The minimum requirements with respect to reasons are found in s 45(1)(b) which provides that if a restraining order is made the court must "set out in the order each ground that the court finds is a ground on which the order may be made". The purpose is obvious. When the order is served as required by s 47 the affected person is given notice of each ground upon which the court found that an order could be made. It must be said, however, that merely identifying each "ground" upon which an order for restraint might be made provides very minimal information to the affected person. I do not construe s 45 as modifying the existence or content of a duty to give reasons that would otherwise exist.

[164] The content of the reasons required may be affected significantly by the course of proceedings before the court. An affected person who has been provided with all the material placed before the court and been given an opportunity to be heard in opposition to an application for restraint is in a significantly different position from the plaintiffs who have no knowledge of either the contents of the confidential affidavits or what was put to the Judge in submissions. The plaintiffs have no knowledge of how the Judge responded to those affidavits and submissions. To make those observations is not to criticise the way in which the proceedings were conducted before the Judge, but to emphasise that if justice is to be seen to be done, and if the plaintiffs against whom the orders were made are to be able to observe that a reasoned and impartial decision was made, the giving of reasons is essential.

[165] It must be acknowledged that as the Judge ordered that a significant amount of material provided to him not be made known to the plaintiffs, the ability of the Judge to identify the material upon which he relied and to explain his reasoning was necessarily constrained. However, confidentiality did not prevent his Honour from stating whether he relied upon the confidential affidavits and, if he did, whether the information was of particular significance. Nor did it prevent his Honour from identifying the significance or otherwise of the material that was made available to the plaintiffs. In addition, his Honour could have identified the legal tests that he applied.

[166] Although the Judge was dealing with an application of an interlocutory nature, the Act provides the plaintiffs with a statutory right to object to the restraining orders. While many of the matters identified in s 63 as providing a basis for setting aside the restraining orders do not require knowledge of the material relied upon by the Judge or the reasons for the decision to restrain, nevertheless the absence of reasons places the objector at a significant disadvantage. In particular, if an objector seeks to establish that the objector is an innocent party for the purposes of s 63(1)(a)(ii), the objector is denied knowledge of material put against the objector and of the earlier reasoning of the Judge.

[167] The availability of the appeal process is also relevant. Although the Act does not specifically provide for a right of appeal, it is common ground that the plaintiffs are entitled to seek leave to appeal against the restraining orders. In the absence of reasons, the plaintiffs are unable to determine whether the Judge fell into error.

[168] There is no single formula for determining whether a duty to give reasons exists and, if it does, the content of the reasons required in order to discharge that duty. Notwithstanding that the Judge was dealing with an application of an interlocutory nature and that his Honour's decision is of no relevance to the merits of the substantive proceedings seeking declarations and forfeiture of property, bearing in mind the significant interference with rights to enjoy property and the principles to which I have referred in the context of rights to object and to seek leave to appeal, in my opinion it was incumbent upon the Judge to give reasons for making the restraining orders. Those reasons would necessarily have been of a restricted nature as a consequence of the orders concerning the confidential affidavits and the closing of the court, but in my view reasons were required. In reaching this view I am applying the principles to the particular circumstances that existed before the Judge. It does not follow that reasons will be required in every case where a Judge makes a restraining order. Each case must be determined according to its particular circumstances.

[169] The failure of the Judge to give reasons for making the restraining orders was an error of law. In addition, it amounted to a denial of procedural fairness.

[170] As to the consolidation of proceedings numbered 36 and 37 of 2006, the order was strictly procedural in nature and had no impact adverse to the plaintiffs. It was typical of an order that does not require the giving of reasons. Notwithstanding some question as to whether the order could be made ex parte, in my view the absence of reasons does not amount to a denial of procedural fairness. As Mildren J has pointed out, if good reason exists for setting the order aside an application can be made to the Judge at any time.

[171] No reasons were given by the Judge for closing the court and making the order concerning the confidential affidavits. It is readily apparent that his Honour considered disclosure of the material contained in the confidential affidavits might materially prejudice an ongoing investigation. In these circumstances it is not surprising that his Honour closed the court and written reasons for that decision were not required. Similarly, in my view, reasons for ordering that the confidential affidavits not be provided to the plaintiffs were not required. The fundamental reason, namely, prejudice to an ongoing investigation, is obvious. The very fact of confidentiality made it impossible for his Honour to elaborate.

[172] On 12 April 2006 some of the plaintiffs filed an application for access to the confidential affidavits. That application was refused on 26 May 2006. No written reasons were given.

[173] The application for access to the confidential affidavits was supported by written submissions. In essence the plaintiffs submitted that they were unable to file an appeal against the restraining orders unless they were given access to the material upon which the decision to restrain was based. In oral submissions on 11 May 2006 counsel for the plaintiffs advised the Judge that the plaintiffs were seeking access to the affidavits "so that we know the case against us and what we are going to be able to negotiate with the Public Trustee or the Director of Public Prosecutions for the management of these properties". Discussion between the Judge and counsel for the plaintiffs proceeded on the basis that access was required in order to pursue negotiations related to the management of the restrained property. In subsequent submissions counsel agreed with an observation by the Judge that the plaintiffs were not in a position to determine whether they had a ground of appeal because the plaintiffs did not know the basis on which the order was made. Counsel emphasised that the plaintiffs were entitled to know the case against them.

[174] The hearing was adjourned and the parties filed further written submissions. As to the merits of maintaining the order, the plaintiffs submitted that as parties to the proceedings whose rights had been detrimentally affected in a serious and material way they had a right to know the case against them. Other issues of no relevance for present purposes were also addressed.

[175] The hearing resumed on 26 May 2006. Discussion occurred as to whether the power in s 45(2) of the Act was spent and confidentiality could only be maintained through the application of r 92.06(4) which provides that a Judge may "limit the scope of the evidence that is provided to a party if the Judge is satisfied that the protection of an ongoing investigation requires it, or for other good reason." Counsel for the plaintiffs adopted the position that the application was governed by the principles of public interest immunity and r 92.06(4).

[176] After hearing from counsel for the Director as to the operation of the legislative scheme in connection with the issue under consideration, his Honour indicated that he would hear from counsel for the plaintiffs as to why he should not continue the order under r 92.06(4). His Honour added that he would hear the submissions:

[410]

[183] These two matters (No 135 of 2006 and No 153 of 2006) are references to the Full Court pursuant to s 21 of the Supreme Court Act.

[184] The reference in action No 153 of 2006 raises the constitutional validity of s 46(2), s 49(4) and s 154(1) of the Criminal Property Forfeiture Act (the Act). The reference in action No 135 of 2006 raises questions as to whether the plaintiffs were denied procedural fairness in the conduct of proceedings Nos 36 and 37 of 2006 and whether in the context of an ex parte application for the restraint of the plaintiffs' property under the Act, the plaintiffs were entitled to notice of the application or reasons for making the restraining orders which were made in March 2006.

[185] In his reasons at paras [12] - [13], Martin CJ sets out the history of the proceedings after the Court, sitting as the Full Court in both proceedings, had heard submissions. I agree with his Honour that proceedings No 153 of 2006 are valid. Under s 21(2) of the Supreme Court Act, the Full Court has a discretion whether or not to accept the references. I entertain very considerable doubt whether the Full Court should accept the reference in matter No 153 of 2006 because even though the proceedings are valid, arguably they amount to a collateral attack upon orders made by a single Judge in actions No 36 of 2006 and No 37 of 2006 when the plaintiff had a right to seek leave to appeal against the orders so made. However, as I am of the view that the provisions of the Act are constitutionally valid, I think nothing is to be gained by refusing the reference in this matter.

[186] However, as to proceedings No 135 of 2006, I think it is clear that the Full Court should refuse the reference either on the ground that as a general rule a single Judge has no power to declare an order made by another single Judge of this Court is invalid and, therefore, neither has the Full Court, or alternatively on the basis that as a matter of discretion, such a declaration will be refused: see Re Harrod [1978] 1 NSWLR 331; Main Electrical Pty Ltd v Civil & Civic Pty Ltd (1978) 19 SASR 34; In the Estate of Leahy (Dec'd); Earl v Moses & Anor [1975] 1 NSWLR 246 at 252; Barton & Anor v Walker & Anor [1979] 2 NSWLR 740 at 756; In re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374 at 384; Chief Commissioner of Pay-Roll Tax v Group Four Industries Pty Ltd [1984] 1 NSWLR 680 at 684; Giannarelli & Ors v Wraith & Ors [1988] HCA 52; (1988) 165 CLR 543 at 594-595. I agree with the Chief Justice that the Court, sitting as the Court of Appeal, has jurisdiction to dispense with compliance under the Rules, grant leave to appeal in actions No 36 of 2006 and No 37 of 2006, treat the appeal as having been heard by the Court of Appeal and that that is the preferable course to take.

[187] All matters were heard together upon the basis of agreed facts.

[411]

[188] The agreed facts in each case are almost identical and are not relevantly distinguishable. The following is a summary of those facts.

[189] On 28 March 2006 the Director of Public Prosecutions commenced the two actions (No 36 of 2006 and No 37 of 2006) in the Supreme Court for restraining orders under the provisions of the Act in relation to certain property of the plaintiffs on the grounds that certain of the plaintiffs' property was crime used property; that certain of the plaintiffs' property was crime derived property; and that certain other property constituted unexplained wealth. Ex parte applications went before a Judge of this Court on 28, 29 and 30 March 2006. No notice of the applications was given to any of the plaintiffs. The defendant relied upon some nine affidavits, six of which were specified as "confidential affidavits".

[190] The application in proceedings No 36 of 2006 stated in paragraph nine that the "facts, matters and circumstances supporting this application are set out in the affidavits". This reference included the six confidential affidavits.

[191] The property sought to be restrained included four residential properties, a commercial property, the net proceeds of the sale of a property in Queensland, five motor vehicles, the monies held in three bank accounts and certain monies held in two firms of solicitors' trust accounts. It is an agreed fact that the plaintiffs do not have any other real property, bank accounts or motor vehicles.

[192] The application in action No 37 of 2006 also sought to restrain the whole of the issued capital of the plaintiffs' Spicecane Pty Ltd, Executive Business Strategies Pty Ltd and Monsoon Homes Pty Ltd and was also brought against a further party Premier Amusements Pty Ltd which is not a party to the present proceedings.

[193] On 29 March 2006 the Judge on the ex parte application of the defendant consolidated proceeding No 37 of 2006 with proceeding No 36 of 2006. No notice of that application was given to any of the plaintiffs.

[194] The defendant did not direct the Judge's attention to the possibility of restraining less property than that which was sought to be restrained so that the plaintiffs could meet legal expenses in defending proceedings No 36 and 37 of 2006 and his Honour did not enquire whether he should restrain less property than was sought to be restrained.

[195] On 30 March 2006 the Judge made an order ex parte restraining all of the property sought in the applications except for the issued capital of the three companies abovementioned. Other than the formal orders which his Honour made on that date no reasons were published for his decisions. No transcript of the ex parte proceedings has been made available to the plaintiffs. Some of the plaintiffs have sought access to the confidential affidavits in or around May 2006. His Honour denied the plaintiffs access to that material. No formal reasons for his Honour's refusal were given except as may be gleaned from a transcript of the proceedings before his Honour on 26 May 2006. A perusal of the transcript reveals that the reason for refusing access to those affidavits was that his Honour was satisfied that such a course was required because it was necessary for the protection of an ongoing investigation by police and "that public interest immunity, in some respects - which I obviously can't identify at the moment - also requires such a course". It is agreed also that the plaintiffs' interests in their property, livelihood and reputation were affected by the orders which his Honour made.

[196] During the course of the hearings in this Court a further agreed fact was that his Honour closed the Court during the proceedings in actions Nos 36 and 37 of 2006 on 29 and 30 March 2006.

[197] Some further facts were placed before this Court during the course of the hearings. This related to an application for legal aid by Martin Burnett, Dianne Burnett and James Mick Burnett in relation to matters Nos 36 and 37 of 2006. The affidavit discloses that legal aid to these plaintiffs was refused, but it is not clear precisely what the reason for the refusal may have been. Secondly, the letter from the Northern Territory Legal Aid Commission which was attached to the affidavit indicates that legal aid would not be granted to companies. We were told that in any event none of the companies had made an application for legal aid. There was no agreement that the plaintiffs did not have other financial resources which are not the subject of the restraining order made by his Honour to enable them to meet legal costs.

[198] During the course of the hearings in this Court certain other facts were revealed to the Court by counsel without objection. First, it is to be noted that the restraining order was made on the grounds that all of the property was either crime derived property and/or constituted unexplained wealth of the plaintiffs. No order was made on the basis that the property or any of it was crime used property. The total gross value of the property restrained was in excess of $3m. The affidavit from which this information came was prepared by a Mr Wall, a financial investigator/forensic accountant employed by the Northern Territory police. That affidavit has been made available to the plaintiffs. Spicecane Pty Ltd conducts a business as a paving and tiling contractor. Executive Business Strategies Pty Ltd is the trustee of the Burnett Family Trust. The Trust is a discretionary trust, the eligible beneficiaries of which are Dianne Maria Burnett, Martin John Burnett and their children. Until such time as the trustee seeks to vest in the beneficiaries any of the interest or corpus of the fund none of the eligible beneficiaries have any interest in the trust property. Monsoon Homes Pty Ltd is a building company, the sole director and shareholder of which is James Mick Burnett. So far as Monsoon is concerned its bank account has been restrained, but management control of the company has been left with James Mick Burnett. Arrangements have subsequently been put into place for Monsoon Homes Pty Ltd to provide monthly reporting to the Public Trustee. There are presently no criminal proceedings outstanding against any of the plaintiffs. One relatively minor charge under the Misuse of Drugs Act brought against Martin John Burnett has already been disposed of. Until this Court granted leave to appeal in actions No 36 of 2006 and No 37 of 2006 (see para [186] above) no application for leave to appeal had been lodged against any of the orders made and no application has been made to his Honour to provide reasons for any of the orders which he has made, nor for the supply of information on terms designed to protect the confidentiality of the material upon which his Honour has relied.

[415]

[201] Section 6 of the Act defines a "forfeiture offence" to be an offence against the law in force anywhere in Australia that is punishable by imprisonment for two years or more or any other offence that is prescribed for the purposes of that section.

[202] Part 2 of the Act deals with the extent to which the Act applies. In summary the Act applies to property which is crime used, property which is crime derived and the property of persons who are involved in or taken to be involved in criminal activities if the person is declared under s 36A of the Misuse of Drugs Act to be a drug trafficker or if an unexplained wealth declaration or a criminal benefit declaration is made in relation to the person or the person is found guilty of a forfeiture offence.

[203] Part 3 of the Act deals with investigation and search powers. Part 4 is headed "Ensuring property remains available for forfeiture". Section 39 deals with the circumstances under which a member of the police force may seize any property. Division 2 of Part 4 deals with the obtaining of restraining orders in relation to property. The effect of a restraining order in relation to property is that subject to certain permitted dealings the property cannot be dealt with, and empowers the applicant in relation to the restraining order to apply to the Court for an order that all or some of the restrained property be forfeited to the Territory. There is provision in s 49(3) for a person affected by a restraining order to apply to the Court for an order to meet the reasonable living and business expenses of the owner of the property. Section 49(4) provides that "reasonable living and business expenses do not include legal expenses referred to s 154".

[204] Part 5 of the Act deals with objections to restraint of property and enables a person whose property has been affected by a restraining order to apply to the Court to set aside the relevant restraining order. The evident purpose of Part 5 is to protect the innocent.

[205] Part 6 deals with proceedings for unexplained wealth declarations. Section 71(1) provides that the court which is hearing an application under s 67 must declare that the respondent has unexplained wealth if it is more likely than not that the respondent's total wealth is greater than his or her lawfully acquired wealth. Section 71(4) provides that when a court makes an unexplained wealth declaration the court must inter alia order the respondent to pay to the Territory the amount specified in the declaration as the value of his or her unexplained wealth. Part 12 of the Act deals with court jurisdiction and evidentiary matters. Section 135(1) provides that the Supreme Court has jurisdiction in any proceedings under the Act. Section 136(1) provides that proceedings on an application under the Act are taken to be civil proceedings for all purposes.

[206] Section 154(1) provides that property which is the subject of a restraining order under the Act is not to be released to meet the legal expenses of the person, whether the expenses are in relation to proceedings under the Act that relate to the forfeiture of the property, or criminal proceedings; and is not to be taken into account for the purposes of an application by the person for legal aid. The Act also contains a number of provisions which reverse the onus of proof or create presumptions which must be rebutted by the defendants in proceedings under the Act. These are set out in s 63, s 64, s 65, s 71(2), s 75(2), s 76(2), s 83(1), s 83(2), s 92(2) and s 121 of the Act.

[417]

[207] It was the plaintiffs' submissions that these subsections individually and collectively are invalid as they impose impermissible limitations on the functions of the Supreme Court and impose statutory procedures which:

compromise the institutional impartiality and appearance of impartiality of the Supreme Court;

are repugnant to the judicial process in a fundamental degree;

inhibit the performance of the judicial function;

impose on the Supreme Court and the performance of the judicial function a rigid or inflexible rule; and

interfere with a judicial discretion.

[208] The plaintiffs' argument is based on the principles to be derived from Kable v Director of Public Prosecutions (NSW). In substance, the plaintiffs' argument is that the subject provisions are invalid because the Legislative Assembly of the Northern Territory has invested this Court with a function which is incompatible with Chapter III of the Constitution and the exercise by this Court of the judicial power of the Commonwealth.

[209] It is not in contention that the Kable principle applies to this Court: see North Australian Aboriginal Legal Aid Service Inc v Bradley (supra) at 163 para [28]-[29].

[210] At the heart of the plaintiffs' submission is the contention that in all proceedings before this Court whether civil or criminal the plaintiff has the right to be represented by counsel. I accept this submission. Section 75 of the Supreme Court Act provides that "subject to any other law in force in the Territory, a party in a proceeding may appear before the Court either personally or by a legal practitioner". There is nothing, however, in the Criminal Property Forfeiture Act which specifically deprives the plaintiffs of their right to counsel. I accept also that generally speaking a party in civil or criminal proceedings has a right to counsel of his or her own choice. However, this is not an absolute right. There are many circumstances where counsel is either not obliged or not permitted to represent a particular party. It is well established that no person has the right to counsel at public expense whether in criminal or civil proceedings: McInnis v The Queen (supra) at 579; Dietrich v The Queen (supra) at 297-298, 302-303, 311, 330, 342 and 364-365.

[211] Nevertheless the right to appear by counsel plays an important and vital role in the administration of justice in an adversary system: Re Criminal Proceeds Confiscation Act 2002 [2003] QCA 249; [2004] 1 Qd R 40 at 47 [9] per Williams JA and at 56-57 [62]-[63] per White J; Mansfield v Director of Public Prosecutions for Western Australia (supra) at 502-503 [49].

[212] It was submitted by counsel for the defendant that s 154 of the Act is designed to assist in the granting of legal aid to a defendant to a restraining order. Subsection 154(1)(b) provides that the restrained property is not to be taken into account for the purposes of an application for legal aid by a person whose property has been restrained. "Person" is not defined; in my opinion it includes a body corporate (s 17 of the Interpretation Act). Section 154(2) enables the Northern Territory Legal Aid Commission to take a charge over any property subsequently released from a restraining order as security for costs paid by the Commission in respect of proceedings under the Act or criminal proceedings. Even if the property is subsequently forfeited, the Commission may apply to the Minister to have the costs reimbursed: s 154(4).

[213] The Northern Territory Legal Aid Commission is established by s 5 of the Legal Aid Act. The function and powers of the Commission are set out in s 7. Subsection 7(1) provides that "the function of the Commission is to provide legal assistance in accordance with this Act". The Act establishes two funds: the Legal Aid Fund (s 43) and the Contingency Legal Aid Fund (s 44). The Legal Aid Fund comprises, essentially, monies paid to or recovered by the Commission under the Legal Aid Act and monies paid to the Fund by the Northern Territory or the Commonwealth. The Contingency Legal Aid Fund consists of monies paid or lent to the Commission by any person, as well as monies paid out of the Legal Aid Fund.

[214] Section 26(1) of the Legal Aid Act provides for legal assistance from the Legal Aid Fund (other than legal assistance from the contingency fund) where the person is in need of assistance and it is reasonable to provide it. The question of need is means tested according to criteria set out in s 26(2). The question of reasonableness depends upon the view of the Commission as to the applicant's ultimate prospects of success in the litigation (s 26(3)(b)).

[215] Subsection 45(2)(a) of the Legal Aid Act provides that monies in the Contingency Legal Aid Fund shall be applied only to provide legal assistance to bring or defend civil proceedings. Subsection 45(1)(c) provides that monies in the Legal Aid Fund "shall be applied... as a loan or payment to the Contingency Legal Aid Fund". It is not clear to me whether or not legal aid to defend civil proceedings brought under the Criminal Property Forfeiture Act can be funded from the Legal Aid Fund or only from the Contingency Legal Aid Fund. The provisions of s 26 of the Legal Aid Act do not apply to legal assistance from the Contingency Legal Aid Fund. The Legal Aid Act does not spell out the criteria which need to be met for determining an application for legal aid from the Contingency Legal Aid Fund. Subsection 12(e) provides that the Commission shall determine guidelines determining the conditions subject to which that fund will be made available for the provision of legal assistance to bring or defend legal proceedings.

[216] Under the Commission's guidelines (Guideline 4) "legal aid may be available for proceedings under the Criminal Property Forfeiture Act... where the value of the property which is the subject of the proceedings exceeds the likely costs of providing assistance". This is subject to the "NT Guidelines for Civil Law Matters". Civil Law guidelines are in Part 4 of the Guidelines. Those guidelines are designed to limit assistance to those cases where the applicant has reasonable prospects of success and is generally subject to means testing which may require the applicant to contribute towards the cost of the assistance and may require the applicant to give security.

[217] It would seem probable that the plaintiffs, if they are unable to raise the funds necessary to employ legal counsel themselves, should be eligible for legal aid. There may, however, be difficulties in satisfying the Legal Aid Commission of their prospects of success, particularly in the case of unexplained wealth declarations as these are likely to be very complex matters and may well require expert legal and accounting assistance. Nevertheless a limited initial grant of legal aid is available under the Civil Law Guidelines, Guideline 1.1, to investigate and report on the merits of a case.

[218] I note also that the refusal of legal aid is subject to review by a review committee set up under Part VI of the Legal Aid Act.

[219] However, there remains the possibility that a case may arise where the Commission has refused legal aid to a person or persons who do have a meritorious defence and who are unable to pay for legal representation from their own resources.

[220] I note that the guidelines provide that legal assistance is not available for proceedings under the Proceeds of Crime Act 1987 (Cth). However that Act has now been superseded by the Proceeds of Crime Act 2002 (Cth).

[221] It would seem to me that in a case where legal aid was refused to a meritorious defendant this Court would have the power to discharge the restraining order or refuse to extend it if the Director of Public Prosecutions or the Northern Territory did not provide legal assistance to the defendant. These are not ordinary civil proceedings. They are proceedings brought by the Director of Public Prosecutions on behalf of the state. Any monies forfeited are forfeited to the Northern Territory. The reason why the Dietrich principle does not apply to civil proceedings is because the plaintiff in civil proceedings has a right to have his, her or its action heard and the plaintiff in such proceedings, by bringing those proceedings will not have prevented the defendant from obtaining legal representation.

[222] The legislature, by conferring jurisdiction on this court to make orders under the Act, must take the Court as it finds it, with all its incidents including the liability to appeal: Electric Light and Power Supply Corp Ltd v Electricity Commission of New South Wales (supra) at 560; Mansfield at 491 [7]. This Court has an inherent power to control and supervise its processes to prevent injustice. Rule 23.01(1)(c) specifically empowers the Court to stay a proceeding generally where the proceeding or a claim in a proceeding is an abuse of the process of the Court. In Walton v Gardiner (supra) at 393-395 Mason CJ and Deane and Dawson JJ approved of the following propositions: (1) a court whose function it is to dispense justice with impartiality and fairness both to the parties and the community possesses the necessary powers to prevent it processes being employed in a manner which gives rise to unfairness; (2) in the exercise of the inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it; (3) it is contrary to the public interest to allow confidence in the Court's ability to administer justice fairly to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice; (4) the power of the Court to control its processes is not confined to defined and closed categories but may be exercised as and when justice demands. In my opinion the power carries with it the power to adopt whatever remedies are appropriate to meet the circumstances of the case: Wentworth v New South Wales Bar Association (supra) at 252; Jago v The District Court of New South Wales and Others (supra) at 25, 56, 71 and 74. Western Australia v Ward [1997] FCA 585; (1997) 76 FCR 492 is in itself an example of how the Court's powers were able to be used to prevent injustice by preventing a female barrister from appearing in a matter involving secret men's business in a native title claim.

[223] We were referred to The State of New South Wales v Canellis & Ors [1994] HCA 51; (1994) 181 CLR 309 at 328 where Mason CJ, Dawson, Toohey and McHugh JJ said that there is no suggestion in the majority judgments in Dietrich v The Queen that a court could exercise a similar jurisdiction in civil proceedings. However their Honours were not there referring to proceedings such as this where the proceedings are brought by the State for forfeiture of property, which are likely to be factually complex and as the High Court observed in Mansfield at 503 [50] "draconian in its operation and complex in various of its provisions".

[224] In Mansfield v Director of Public Prosecutions (WA) (supra) at 120 [100], Pullin JA indicated that the Dietrich principle could apply to confiscation proceedings. I note that s 154(1)(a) of the Act provides that property that is the subject of a restraining order is not be released to meet the legal expenses of the person whether those expenses are in relation to proceedings under the Act which relate to the forfeiture of the property or criminal proceedings.

[225] Alternatively, it was submitted that the Court could mould a restraining order in such a way as to leave some assets, not the subject of the restraining order, so as to ensure that the plaintiffs were able to meet their proper legal expenses. In Mansfield at 504 [53] the majority judgment of the High Court expressly approved the following passage from the judgment of Pullin JA, where his Honour said:

[421]

[227] It was submitted that there was a considerable difference between the Western Australian legislation and the Northern Territory Act in that s 46(2) provides that "reasonable living and business expenses does not include legal expenses referred to in s 154". On the one hand that was the assumption which was made in relation to the Western Australian legislation although there was not specific provision to that effect. On the other hand it was submitted that here the legislature had clearly indicated a contrary intention. The matter is not free from difficulty. There is nothing in the Act which specifically requires the court to make a restraining order if the grounds for the making of such an order are made out. The court has a discretion. The provisions of s 46(1) are identical to the provisions of s 45 of the Western Australian Act considered by the High Court in Mansfield, however, it was submitted that because of s 46(2) of the Act, a negative implication would restrict in this regard the scope of the power conferred upon the Supreme Court with respect to restraining orders.

[228] In my opinion, the submission of Mr Silvester for the Director is correct. The evident purpose of s 46(2) and s 154(1)(a) is to place a restriction on the power of the Court to make an order of the kind suggested by Pullin JA and approved by the High Court in Mansfield. The provisions as a whole persuade me that the legislature had in mind that in cases where the effect of a restraining order was to preclude the defendant to the order from being able to engage solicitors or counsel that a person in such a situation would be eligible for legal aid under the Legal Aid Act. The evident policy of these provisions is to prevent the dissipation of assets by fruitless, or over-expensive, litigation. In Mansfield the majority of the High Court observed at 504 [54] that in exempting some of the property from a freezing order great care was required "by the parties and by the Court in the framing of the condition to ensure, to the maximum possible extent, that exempted funds are not misused, whether by overservicing and overcharging or by other abuse". The effect of the provisions is to place effective control over expenditure on legal costs in the Legal Aid Commission. It may be inferred that the legislature has decided that the Commission is better placed than individual Judges of this Court to ensure that funds are not wasted in this fashion, subject always to the Court's overriding duty to ensure that there is no injustice and that the proceedings are conducted fairly. Furthermore, s 44(3) provides that in certain cases, including applications for an unexplained wealth declaration, the Court must not refuse to make a restraining order "only because the value of the property subject to the restraining order exceeds, or could exceed, the amount that the person could be liable to pay to the Territory if the relevant declaration is made".

[229] The question then arises as to whether the effect of those provisions is unconstitutional because it offends the Kable principle. The relevant principles have been discussed in many cases, most recently reviewed by Steytler P in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (supra). They are dealt with very fully in the Chief Justice's reasons. It is not necessary for me to restate them.

[230] In my opinion, the institutional integrity of the Supreme Court is not compromised if the Court is not able to order or make provision for legal expenses to be met out of the restrained assets even if all of the assets of the defendant are to be restrained. In the making of an order the Court is required to act judicially; it is not the mere instrument of government policy. The Court must be satisfied on the material placed before it that it is proper to make a restraining order. In later proceedings where forfeiture is sought, the Court is again required to act judicially. It must be satisfied that the criteria are met for the warranting of a forfeiture order.

[231] The fact that the Court has no power to make an order providing for legal expenses does not mean that the Court's institutional integrity is compromised. Nor does it mean that the proceedings are necessarily unfair. The Court retains its inherent powers to ensure that the proceedings are conducted fairly. The lack of legal representation may place an additional administrative burden upon the Court because, inter alia, it will have to explain to the unrepresented party matters of procedure relating to how it might go about presenting its case. The defendant in forfeiture proceedings will know in advance the nature of the case which it has to meet because the Rules require that the Director of Public Prosecutions provide affidavit material upon which it intends to rely. The Court also has power to order the Director of Public Prosecutions to give discovery of documents under Rule 92.08. Because the plaintiff in any such proceedings is the Crown represented by the Director of Public Prosecutions, the Court will expect the Director to act as a model litigant. The Court may call upon the Director, as a model litigant, to make enquiries into matters which the defendants are, for want of funds, unable to enquire into themselves.

[232] The fact that the burden of proof has been reversed or that there are presumptions of an evidentiary nature placed in the way of the defendants does not make the proceedings so unfair as to make the Court the instrument of government policy. It does not compel any particular result. The Court is still able to exercise genuine evaluative findings of fact. There is in any event, as I have pointed out, provision for the defendants to seek and obtain legal aid, and, in my opinion, if legal aid is not forthcoming the Court may, inter alia, discharge the restraining order in whole or in part if the circumstances warrant it.

[233] In my opinion, the plaintiffs in these proceedings have not demonstrated that the impugned provisions are unconstitutional. As McHugh J said in Fardon v Attorney-General (Qld) (supra) at 600-601:

[428]

[240] The Act contemplates that an application for a restraining order under Division 2 of Part IV of the Act may be made ex parte (s 41(2)). The reason for such a provision is obvious. If notice were required to be given in all cases, the assets could be dispersed out of the court's jurisdiction.

[241] The fact that an application can be made ex parte does not by itself mean that the proceedings are necessarily unfair even though there are significant consequences once a restraining order is made.

[242] It is to be noted that a restraining order under the Act is different in important respects from an ex parte injunction obtained in the Court's ordinary equitable jurisdiction. Usually an ex parte injunction will only be granted on an interim basis. Upon the return date, the applicant for the injunction must establish his case all over again, after having given notice in the meantime to the defendant. A restraining order made ex parte can be set aside under s 63 and s 64 of the Act in so far as the orders were made on the basis that the property was crime used property or crime derived property. There is no specific provision for setting aside a restraining order made on the basis that an application has been made or is intended to be made for an unexplained wealth direction under s 44(1)(b)(ii). Notwithstanding that, it is my view that a restraining order could be set aside in any case where the application was made mala fides or where there was material non-disclosure or a failure to give an undertaking as to damages, for example.

[243] I do not think that there is anything unfair in the order consolidating the two proceedings. At the time that the order was made the proceedings had not been served. I think it was open to the learned Judge to have made that order and I can see no denial of natural justice to the plaintiffs in making it ex parte on this occasion. If there was some good reason for setting that order aside, an application to the Judge could be made at any time.

[244] Next it is complained that the proceedings were conducted in camera or at least a large part of the proceedings were conducted in camera and without a transcript.

[245] The Court has power under s 42(a) to order that the whole or any part of the proceedings relating to a restraining order is to be heard in closed court. It also has power to make an order prohibiting the publication of a report of the whole or any part of the proceedings or any information derived from the proceedings under s 42(c). It is understandable that the Court may need to use these powers where material is put before the Court in support of the restraining order where the information provided to the Court, if released, might materially prejudice an ongoing investigation. So much is recognised by s 45(2) of the Act.

[246] However in this case, the Court did not provide any reasons for the making of the order. It was submitted that no reasons are necessary because the order was only an interlocutory order, but in my opinion, interlocutory or not, a judge should give reasons when making such an ex parte order based upon material which is not fully disclosed to the parties affected by the order: see Re Criminal Proceeds Confiscation Act 2002 (supra) at 47 [9] per Williams JA and at 56-57 [62]-[63] per White J. That is not to say that reasons are always required when all of the affidavits relied upon are to be served with the order. Much will depend upon the circumstances.

[247] Under the provisions of the Supreme Court Act s 51 and s 53 the plaintiffs in these proceedings have a right to seek leave to appeal to the Court of Appeal from the orders made by the Judge. If reasons are not given the defendants to the restraining order are not in a position to know whether they have a case to exercise their right to apply for leave to appeal. In order to obtain leave, they must demonstrate that the correctness of the judgment of the Court is attended with sufficient doubt to warrant the granting of leave: see Nationwide News Pty Ltd & Ors v Bradshaw & Anor (1986) 41 NTR 1. Without reasons, the defendants will not know whether the Judge applied the correct test or tests in deciding whether to grant the order. For example, in relation to a restraining order on the basis that the property is crime used or crime derived, the Court has to be satisfied that there are reasonable grounds for suspecting that the property is crime used or crime derived. On the other hand an application for a restraining order under s 44(1)(b)(ii) on the basis that an application has been made or is intended to be made for an unexplained wealth declaration, the Judge would have to be satisfied that there is a prima facie case. If the basis upon which a non-disclosure order is made rests upon public interest immunity of a kind going beyond non-disclosure of information which might materially affect an ongoing investigation (assuming that the Court can make an order based on that kind of material which I doubt), the Court should indicate at the least the class of information being protected, what balancing considerations have been taken into account and why it is protected: see for example Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd [1916] 1 KB 822; Australian National Airlines Commission v The Commonwealth of Australia & Anor [1975] HCA 33; (1975) 132 CLR 582; Young v Quin & Ors (1985) 59 ALR 225; as well as any other relevant factors: see generally S D Simpson, D L Bailey and E K Evans, Discovery and Interrogations, 2nd edition, Butterworths, Sydney, 1990, pp 210-221. In a case where the Court has received material which is based upon information which, if released, might materially prejudice an ongoing investigation, the reasons ought to disclose as much as possible consistent with the need to protect the confidential material. The Judge ought to address questions such as what balancing considerations have been taken into account, whether it is sufficient to suppress the names of any informants or the circumstances under which information has come to the attention of the Director of Public Prosecutions or the police, or whether it is necessary to go so far as to decide that the nature of the information is such that release of any of it could result in a significant risk that it would lead to the sources being discovered.

[248] In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (supra) Martin CJ said at para [63] in reference to s 76(2) of the Corruption and Crime Commission Act 2003 (WA) which precluded information from being disclosed to the other party which the Commissioner of Police claimed to be confidential:

[430]

[249] Similarly, in my view, the Court in exercising its powers under s 45(2) should consider whether, for example, a summary of the information contained in the confidential material can be released or alternatively if there is some other course which may be able to be adopted such as releasing the information to the defendant's lawyer upon receiving an appropriate undertaking to the Court not to reveal the information to the defendant. Perhaps in order to achieve this, the Court ought in the first place make only an interim order, and require the proceedings to be served before making a restraining order. I note that the Act provides, in s 40, for the applicant to apply to the Local Court for an interim order. However, I consider that the Supreme Court could also make an interim order, even though there are no specific legislative provisions relating to this Court. Where, by an Act of Parliament, a right or power is created, there must by implication carry with it the power to do everything which is indispensable for the purpose of exercising the right or power, or fairly incidental or consequential to the power itself: Alice Springs Town Council v Mpweteyerre Aboriginal Corporation and Others (1997) 115 NTR 25 at 35.

[250] It is my view that the failure to give reasons in this case is not only an error of law, but it has deprived the defendants of procedural fairness: Re Criminal Proceeds Confiscation Act 2002 (supra); Pettitt v Dunkley [1971] 1 NSWLR 376; Mobasa Pty Ltd v Nikic [1987] NTSC 35; (1987) 47 NTR 48.

[251] Likewise, I consider that his Honour should have provided more expansive reasons for the refusal of the plaintiffs' application for access to the confidential affidavits when that application was subsequently made to his Honour.

[252] It was submitted by Mr Silvester that the plaintiffs have not sought any reasons from his Honour and that had they done so his Honour may have provided them. Although an appeal court may remit a proceeding to a Judge to give reasons (De Iacovo v Lacanale [1957] VicRp 78; [1957] VR 553; Apps & Anor v Pilet (1987) 11 NSWLR 350; Pasha v Edmonds & Anor [1998] VSC 169; (1998) 28 MVR 217), it is now too late to ask his Honour to provide reasons and the matter should be reheard before another judge.

[253] Mr Silvester submitted that although the Judge relied on confidential material to base the orders he made, that related only to the ground that the property was crime derived; that the order was supported in any event upon the basis of unexplained wealth and the affidavit material in respect of that subject matter has been fully disclosed. That may be so, but the order is nevertheless based also upon allegations that the property is crime derived and no reasons have been given for the order.

[254] In my opinion the appeal should be allowed and the restraining order made on 30 March 2006 should be set aside. I agree with the Chief Justice that an interim order should be made until the matter is reheard by a single Judge.

[431]

[255] The Full Court is asked to consider questions of law which were reserved for the Court's consideration by Olsson AJ in proceeding number 135 of 2006 and proceeding number 153 of 2006. The Court is asked to do so under s 21 of the Supreme Court Act.

[256] In proceeding number 135 of 2006 the plaintiffs seek a declaration that the interlocutory orders of a single judge of the Supreme Court restraining the plaintiffs' property specified in the orders (the restraining orders) are invalid. The restraining orders were made ex parte under s 41(2), s 42(2)(a) and (b), s 43(2)(a), s 44(1)(a) and s 44(1)(b)(ii) of the Criminal Property Forfeiture Act (the Act) on the grounds that the property specified in the restraining orders was crime derived property and constitutes unexplained wealth. The plaintiffs argue that they were denied procedural fairness on the grounds that the plaintiffs were not given notice of the application for the restraining orders; the plaintiffs were not given an opportunity to be heard in circumstances where the making of the restraining orders substantively changed their positions; the plaintiffs were refused access to six affidavits on which the Director of Public Prosecutions relied in support of his application for the restraining orders; the court was closed during the hearing of the application for the restraining orders and no transcript of the hearing has been made available to the plaintiffs; and the presiding Judge failed to give reasons for granting the restraining orders and denying the plaintiffs access to six of the affidavits filed by the Director of Public Prosecutions. While the restraining orders remain in place the specified property and any income derived from that property cannot be dealt with by the plaintiffs.

[257] In proceeding number 153 of 2006, the plaintiffs seek a declaration that s 46(2), s 49(4) and s 154(1)(a) of the Act are invalid. The ground of invalidity is that the specified sections of the Act infringe Chapter III of the Constitution. The plaintiffs say that they do so because they confer a function upon the Supreme Court which substantially impairs the institutional integrity of the Supreme Court as a repository of federal jurisdiction: Kable v Director of Public Prosecutions (NSW) (supra); North Australian Aboriginal Legal Aid Service v Bradley & Anor (supra). The provisions of s 46(2), s 49(4) and s 154(1)(a) of the Act are repugnant to the judicial process and they inhibit the performance of the judicial function. The sections prevent a court that has made a restraining order from taking into account the legal expenses that a defendant may incur, thereby effectively denying a defendant the right to counsel and authorising the court to proceed in a manner that does not ensure equality before the law: Nicholas v The Queen (supra) per Gaudron J at 208 - 209. The sections also direct the Supreme Court as to the manner and outcome of the exercise of the court's jurisdiction under the Act.

[258] The questions of law reserved for the Full Court are set out in pars [19] and [20] of the Reasons for Judgment of Martin CJ. The facts which have been agreed by the parties are set out in par [17] of his Honour's Reasons for Judgment. Additional facts which were placed before the Full Court during the hearing are set out in pars [196] to [198] inclusive of the Reasons for Judgment of Mildren J.

[434]

[265] The presiding Judge, who made the restraining orders, erred in law when he failed to give reasons for making the restraining orders: Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 at 260; De Iacovo v Lacanale; Pettitt v Dunkley (supra) per Asprey JA at 383; Soulemezis v Dudley (Holdings) Pty Ltd (supra); Papps v Police [2000] SASC 183; (2000) 77 SASR 210 at 218; R v Keyte [2000] SASC 382; (2000) 78 SASR 68.

[266] A court at first instance is required to give reasons for its decision where a losing party may be effectively deprived of his or her right of appeal if the basis of the decision is not properly articulated: Pettitt v Dunkley (supra) per Moffitt JA at 388; Soulemezis v Dudley (Holdings) Pty Ltd (supra) per McHugh JA at 280; R v Keyte (supra) per Doyle CJ at pp 75 to 79. The obligation to give reasons arises because there is a remedy of appeal against the orders of the court that examines any errors in the reasoning process of the judge at first instance: R v Keyte (supra) per Doyle CJ at pp 75 to 79. Reasons must be adequate. Reasons need to be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them: Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (supra) per Mahoney JA at 386. What is adequate is to be determined by the circumstances of the case and the issues in the case: R v Keyte (supra) per Doyle CJ at p 81. These may include the following: the nature of the application before the presiding Judge; the fact that the proceeding was an ex parte application; the fact that the appellant will not have access to all of the information that was before the presiding Judge; and the obligations of the party making the application before the presiding Judge.

[267] The plaintiffs' rights of appeal in this case have been effectively frustrated by the failure of the presiding Judge to give reasons for making the restraining orders. As a result of the application for the restraining orders being made ex parte and in camera and the nondisclosure of the contents of the six affidavits on which the presiding Judge relied, the plaintiffs do not know the basis of the decision against them and they are unable to determine whether the presiding Judge fell into error. Without the presiding Judge's reasons for decision the plaintiffs in this case are unable to know what was found by the presiding Judge to be the reasonable grounds for suspecting that the property specified in the restraining order was crime derived property; whether the Judge made all necessary findings of fact; and whether the Judge correctly identified and applied the relevant rules of law.

[268] In this case in order to explain the basis of the decision to grant the restraining orders, without divulging the details of the confidential information in such a way that may have prejudiced an ongoing investigation, the presiding Judge should have delivered reasons for decision that: stated the basis on which it was determined that there was a risk that the specified property would not be preserved if the application for the restraining orders did not proceed ex parte; stated the basis for finding that certain documents were confidential because they attracted public interest immunity; identified the class of documents that attracted public interest immunity; stated the factors which were taken into account in determining that the balance lay in favour of non-disclosure and not in favour of the open administration of justice; stated why the fair disposition of the case did not require disclosure of the confidential material; identified the principal issues that arose during the hearing of the ex parte application; stated whether there was any evidence which supported a finding in favour of the plaintiffs; identified the material findings of fact at an appropriate level of generality; stated the reasonable grounds for suspecting that the four residential properties, the commercial property, the net proceeds of the property in Queensland, the five motor vehicles, the monies held in three bank accounts and the monies held in two firms of solicitors' trust accounts was all crime derived property; and identified the rules of law and the relevant tests which were applied in determining the application.

[269] I accept that in the circumstances of this case the obligation to give adequate reasons is an aspect of procedural fairness which is to be accorded to the plaintiffs who are entitled to know why the restraining orders were made: Tran v Claydon (supra) per McLure J at par [36]. However, I do not accept the plaintiffs' submissions that they were otherwise denied procedural fairness which should have been accorded to them (emphasis added). An entitlement to procedural fairness may be modified by statute and while the exercise of the Director of Public Prosecutions' right to make an ex parte application for a restraining order may deprive persons with an interest in specified property of a right to be heard at an interim stage of a proceeding, the provisions of the Act as a whole and the inherent jurisdiction of the court ensure that persons, who have an interest in the property which may be made the subject of a restraining order, have an opportunity to be heard.

[270] A restraining order is an interlocutory order which has effect for no longer than three months. An application for a restraining order should only proceed ex parte and in camera if the court considers such procedures are just in the circumstances of the case, necessary for the preservation of the specified property and necessary to preserve the confidentiality of information that might materially prejudice an ongoing investigation. If the court considers that it would be unjust to hear an ex parte application for restraining orders then under its incidental powers: Harris v Caladine (supra) at 136, the court may grant an interim injunction restraining the specified property and give appropriate directions for the conduct of the hearing of an application under s 41 of the Act including directions as to the confidentiality of affidavits. Under the Act a person, who has an interest in the restrained property, has a right to file and to be heard upon the filing of an objection to a restraining order under s 59 of the Act, and a right to be heard at the substantive hearing of the criminal forfeiture proceeding before the Supreme Court. Under s 51 and s 53 of the Supreme Court Act, a person who has an interest in the property specified in the restraining order may also, with leave of the Court of Appeal, appeal against a restraining order and against any final orders made by the court.

[446]

[274] The plaintiffs argue that the effect of s 49(4) and s 154(1)(a) of the Act is to direct the court not to release property that is the subject of a restraining order for the purposes of legal expenses and to thereby deprive the court of a necessary power to ensure that the parties are equal before the law.

[275] The plaintiffs' argument is unsustainable. The purposes of s 46(2), s 49(4) and s 154(1)(a) of the Act are to prevent the dissipation of property that may be crime used, crime derived or unexplained wealth and to enable the party whose property has been restrained and who may as a result have insufficient resources to pay for legal expenses to obtain legal aid if necessary. The Act does not abrogate the right to counsel in proceedings under the Act and in any event the right to counsel of a party's choice is not an absolute right. Even in this case it has not been established that the plaintiffs do not have resources other than the restrained property which they may use to fund their legal expenses. Parties to legal proceedings, including civil proceedings, often have unequal resources.

[276] It is not unusual for there to be specific rules about the burden of proof for specific classes of case: see for example s 94(2) of the Marriage Act (Cth); Attorney-General (Hong Kong) v Lee Kwong-kut [1993] AC 951 at 969. Nor is it unusual for the burden of proof to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted: Blatch v Archer [1774] EngR 2; (1774) 98 ER 969 at 970; Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 371; Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561. It would ordinarily be expected that the owner of property would be in the best position to explain how the property has been acquired and with what resources it has been acquired.

[277] Parliament has otherwise taken the Supreme Court as it finds it with all of the incidents of doing so: Electric Light and Power Supply Corp Ltd v Electricity Commission of New South (supra) at 560; Mansfield v Director of Public Prosecutions (WA) (supra) at 491. The Supreme Court of the Northern Territory has inherent power to ensure that its processes are not used oppressively and to ensure that the parties to a proceeding receive a fair hearing. The principle enunciated in Dietrich v The Queen (supra), that the courts have power to stay proceedings that will result in an unfair trial and the power extends to a case in which representation by counsel is essential to a fair trial, applies to proceedings under the Act: Director of Public Prosecutions (Cth) v Saxon (1992) 28 NSWLR 263 per Kirby P at 275; Director of Public Prosecutions (SA) v Vella [1993] SASC 4353; (1993) 61 SASR 379 per King CJ at 382; R v Parker (1994) 75 A Crim R 437 at 443 to 446; Mansfield v Director of Public Prosecutions (WA) (supra) per Pullin JA at pars [94] to [101].

[278] While a number of the cases to which I have referred above involved the Court making an order permitting a defendant to access restrained property for the purpose of funding legal proceedings and the Parliament of the Northern Territory has expressly precluded a defendant from accessing restrained property for that purpose, the principle enunciated in Dietrich v The Queen (supra) which is the principle on which the courts relied to grant defendants access to restrained funds has not been abrogated by Parliament. The Supreme Court of the Northern Territory still retains the inherent power to require an undertaking as to damages and to either stay a proceeding under the Act or to refuse to extend a restraining order if a defendant is unrepresented and representation by counsel is essential to a fair hearing of the proceeding. The power extends to staying a proceeding or to refusing to extend a restraining order on the grounds of oppression if the restraining order precluded the defendant from receiving a fair hearing in a criminal proceeding. Alternatively, the criminal proceeding itself could be stayed. That is, the court still retains the capacity to justly administer the proceedings before the court: Forge v Australian Securities and Investment Commission (supra) per Gummow, Hayne and Crennan JJ at 76 par [64]. The courts have recognised that because of the draconian nature of the provisions of criminal property forfeiture legislation there are cases where the proper administration of justice would break down if defendants were not represented by counsel. In such cases it is in the best interests not only of the defendant but also of the administration of justice that a defendant be legally represented.

[279] In my opinion the powers conferred by the Act on the Supreme Court are not antithetical to the judicial process. The court is required to act judicially and it is not a mere instrument of executive policy. The integrity of the court is not substantially impaired by the provisions of the Act. The court still retains those defining characteristics which mark a court apart from other decision making bodies. Not every conferral of power that alters traditional judicial processes compromises the institutional integrity of the Supreme Court: Fardon v Attorney-General (Qld) (supra) per McHugh J at pars [41] to [42].

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