The history of the application
10 It appears that prior to the filing of the motion, but after the filing of the summons and granting of the restraining order, on 25 August 2000, by letter sent on behalf of the Director of Public Prosecutions to the solicitor for the applicant, notice was given both of the effect of Della Patrona v. Commonwealth Director of Public Prosecutions (No. 2) (1995) 38 NSWLR 257 and to the construction of ss.30 and 30A contended for, now before me, by the Director of Public Prosecutions. In particular, the Director asserted that an application under s.48(4) (I interpolate, being an application for the variation of the effect of the restraining order) must be heard and determined by the court before forfeiture occurs under s.30, ie. before the expiration of the six month period following conviction. The letter continued:-
"I also draw your attention to s.30A of the Act which provides, inter alia, that a person seeking a s.48 application (defined as an application under ss.48(2), (3) or (4) of the Act) may apply to the court for an extension of the period under s.30 governing the forfeiture of property, for any time up to a maximum of nine months commencing at the expiration of six months from the date of conviction (this six month period is termed 'the waiting period') s.30A(8). An application for an extension of the waiting period must be made and determined before the end of the waiting period concerned (see s.30A(3))."
11 Subsequently, the motion was filed initially returnable at 9.00 am on 9 October 2000.
12 The motion was stood over by consent on 9 October 2000, when it came before Kirby, J. on terms that the plaintiff was to notify what orders sought in the motion he might agree to.
13 The motion came before Hidden, J. on 26 October 2000. It was stood over by consent on the application of the defendant to 23 November 2000 upon terms that the defendant was to serve affidavits in support of the motion by 22 November 2000. There was some correspondence between the parties. On 23 November 2000 affidavits were filed in court. On that day, by consent and on the plaintiff's application, the defendant being ready to proceed, so the court was informed, the matter was by O'Keefe, J., by consent, stood over to 7 December 2000.
14 On 7 December 2000, there was an attendance on behalf of both the Director and the applicant. Sully, J., was informed the application was for legal expenses to enable counsel to be briefed to appear before the Court of Criminal Appeal and that the first return date of the appeal was Monday 11 December 2000. It was noted that the defendant/applicant had filed the material it sought to rely on, that the application was ready to proceed and an early hearing date was sought. His Honour expressed the view that the matter should stand over to 1 February 2001, that being the next day in which the matter could proceed. His Honour referred to a timetable. There was no suggestion put before his Honour as recorded on the transcript that the immediacy of any time bar arising under the legislation had to be considered.
15 Following the appearance before Sully, J. the motion was stood over to 1 February 2001. His Honour had directed that the parties file and serve not later than 4.00 pm on Friday, 15 December 2000, any affidavit or other material upon which they would wish to rely when the matter was next listed and his Honour listed the matter for mention on the adjourned date.
16 There was subsequent correspondence between the solicitors. The letter of 9 January 2001 on behalf of the Director made no reference to the expiry of the time limit under the Act. It did refer to the necessity to file and serve evidence as directed by his Honour. An affidavit was forwarded. There was some problem about the annexures. That led to a further letter from the Director drawing attention to that matter, seeking assistance as to the provision of financial documents and seeking the date by which they would be provided.
17 On 1 February 2001 the matter came before James, J. On that day there were appearances on behalf of the Director and by his solicitor on behalf of the applicant. His Honour was informed by the representative of the Director that the matter was in the list for directions and that there had been a direction for the filing of evidence prior to that date; that although there had been discussion as to information being provided voluntarily, that had not occurred and production orders had been issued returnable the following week, that is, during the week during which, on the Director's submissions, the six month period provided by s.30 of the Act for the making of any relevant order would expire. The representative of the Director sought an adjournment "to give us time".
18 On behalf of the applicant/defendant, the solicitor said:-
"We need to have this matter to be heard as soon as possible. My client is in another matter in the Court of Criminal Appeal. He has no money and needs money that is frozen to pay counsel's fees for the other matter."
19 His Honour was informed that the Director was willing to consent to some exclusion of property but that it would be necessary to prepare orders to be made by consent and "ratified" by the court. Those orders would be made in respect of the matters referred to in the motion as the orders sought numbers 1, 2, 3 and 4. The legal representative of the defendant said, "That should be okay ... I think it should be okay".
20 On behalf of the Director there was an offer made to write to the defendant's solicitors setting that out. His Honour indicated he would make the order and that should be attended to today. His Honour was apparently referring to making the proposed variation, as consented to, urgently. Ms. Sloane for the Director of Public Prosecutions said:-
"The six month waiting period is going to expire this month. The defendant seeks to move and make his application for the extension of that restraining order."
21 The solicitor for the defendant/applicant said, "I have no instruction on that". His Honour stood the matter over for a fortnight to 15 February. On behalf of the Director, Ms. Sloane, said:-
"Might there be an order for the parties to apply on 48 hours notice in view of that expiry date?"
22 His Honour acceded to her application.
23 At this point I note some matters. They are that although Ms. Sloane might have been in error in failing to define with greater precision the expiry date of the waiting period to which she referred as being in the coming week rather than merely during the month, she had taken almost every action she could take, except directing the court's attention to the possibility of the making of an interim order or to the making immediately of an extension order, that she could. His Honour showed an appreciation of the urgency. It appears that the legal representative who attended on behalf of the defendant on that day had simply been ignorant of the imminent expiry of the period and the possible effect of a failure to have the extension order made by the end of the six months.
24 Subsequent to that mention there was correspondence which led to a letter being sent by the defendant's solicitors dated 6 February in respect of a controversy concerning the subject matter of the consent orders by which the defendant's solicitor gave notice of his proposing to have the motion re-listed for further consideration before the duty judge on the Friday immediately following. It is common ground that the date of such proposed listing was 9 February 2001. No mention was made in that letter of any suggestion that an extension would be sought, much less that it needed to be granted that day and it cannot be contemplated that the defendant's solicitor had turned her attention to that matter at all. The six months waiting period from conviction as referred to in the notice of motion under the heading "Notes" and as referred to in the contention of the Director of Public Prosecutions as noted in the letter of 25 August 2000 was due to expire that weekend.
25 By letter faxed on 7 February 2001, Ms. Sloane for the Director referred to the terms of the dispute concerning the matters that it had been expected would be the subject of consent orders and enclosed draft short minutes of order providing for an order for the release of one of the properties in question. She discussed the obtaining of the sought financial documents and an asserted failure that they be supplied. In those circumstances she expressed the view that she was unaware of the basis for the proposed listing of the matter on 9 February and that in the absence of further details of the application to be made on that day, of which she indicated she expected to be told at least 48 hours before any approach to the duty judge, suggested that any further application could wait until the matter was next before the court on 15 February 2001. In both parties' submissions before me it has been accepted that that letter should not be construed as though the writer were at the time of writing the letter conscious of the imminent expiry of the waiting period.
26 On 15 February the matter came before Grove, J. At that point counsel for the defendant for the first time raised the matter which has now led to the question to be decided by me, that is, that the statutory forfeiture of the defendant's property may have occurred at midnight on 10 February whilst the application for extension of time was pending and that therefore no extension could be granted. Ms. Sloane on behalf of the Director so submitted. Counsel appearing for the defendants contended that submission should not be accepted and raised issues including whether or not an effective consent had been given to the variation of the order so as to exclude the property to which I have referred. Counsel referred to the draft short minutes of order provided by Ms. Sloane to the defendant's solicitor. He submitted that the time should run from the date of sentencing of the accused rather than the date which, in accordance with Della Patrona (supra), was the date of conviction which, as I have referred to, was the date of remand for sentence and further set out what had occurred in the efforts of the defendant's solicitor to have the matters dealt with by various judges.
27 It was contended that the defendants had been informed when they sought to have the matter listed "last week" that there was "no time". This is apparently a reference by the defendant's counsel to the attempt to list the matter for hearing on Friday 9 February, but it is apparent when one examines the letters from the solicitors, each to the other, that whatever it was sought to do on that occasion, it had not been then envisaged that the extension of time application would proceed on that occasion.
28 Counsel sought an adjournment "to be able to present a constructive argument based upon evidence and also with legal authority to be able to overcome the position of the Commonwealth". He expressed the view the matter needed to be determined as a matter of urgency. Grove, J. expressed the view, entirely understandably, that if forfeiture had occurred the matter was not a matter of urgency.
29 His Honour granted the adjournment sought by counsel standing the matter out of the list for that day to 1 March. The matter was listed before James, J., on that day. The correspondence between the solicitors thereafter indicated a point of view on behalf of the defendant's solicitor that the orders sough in the motion had to be dealt with as quickly as possible.
30 On 20 February, the original summons initiating the proceedings in which the motion was filed came before James, J. who stood it over to 23 February.
31 In correspondence the Commonwealth Director of Public Prosecutions was notified by the defendant's solicitor that the grounds of appeal, and presumably the written submissions from counsel in respect of the criminal appeal, were required by the court by 16 March 2001. It appears that the urgency to which the defendant's solicitor had referred arose from the lack of other funds to brief counsel on the appeal; from the imminence of that appeal and the dates by which essential steps were required to be taken in order to prosecute the appeal and because even if an extension was granted, as appears from s.30A of the Act, a maximum of a further nine months beyond the expiry of the six months is all that the Act provides by way of extension of time within which to vary the restraining order.
32 On 23 February, James, J. stood the matter before him over for mention on Tuesday, 6 March, reserving the matter of costs. On 1 March, Hulme, J. married the progress of the summons and the motion by standing the matter before him over to 6 March so that the motion and the proceedings on the summons for the restraining order were now before the court simultaneously. On 6 March, James, J. referred the whole matter to the duty judge and it came before me on that day sitting in that capacity. Since it appeared, on one side's contention at least, that it required urgent decision, I arranged for its hearing before me on the following Monday when there was time available to hear it.