Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : DIRECTOR OF PUBLIC PROSECUTIONS (CTH) -v- COURTENAY INVESTMENTS LIMITED [2011] WADC 52

Practice and procedure - Abuse of process - Proceeds of Crime Act 2002 (Cth) - Multiple proceedings in relation to the same property and based upon identical primary facts - Earlier proceedings not finally determined on the merits - Current proceedings based on a cause of action materially different from the cause of action on which the earlier proceedings were based - Whether current proceedings unjustifiably oppressive to the defendants or otherwise an abuse of process

Crimes Legislation Amendment (Serious Organised Crime) Act 2010 (Cth)

Proceeds of Crime Act 2002 (Cth), s 17, s 19, s 38, s 39, s 45, s 48, s 49, s 51, s 52, s 60

First Respondent : Ms W J Abraham QC & Mr E W L Greaves

First Respondent : Director of Public Prosecutions (Cth)

Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256

Connelly v Director of Public Prosecutions [1964] AC 1254

Director of Public Prosecutions (Cth) v Courtenay Investments Ltd [2011] WADC 52

Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529

Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328

Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23

Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75

Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117

PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384

Reichel v Magrath (1889) 14 App Cas 665

Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19

Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251

Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

Willoughby v Clayton Utz [No 2] [2009] WASCA 29; (2009) 40 WAR 98

2 BUSS JA: On 1 April 2011, Braddock DCJ (the primary judge) ordered, relevantly, that the appellants' chamber summons filed on 21 October 2010 in the District Court (as amended on 25 October 2010), be dismissed. She published written reasons for decision. See Director of Public Prosecutions (Cth) v Courtenay Investments Ltd [2011] WADC 52.

3 In the chamber summons (as amended), the appellants had sought various orders including an order that the originating summons filed by the first respondent (DPP) in the District Court on 23 April 2010, be struck out.

4 In the originating summons, the DPP had claimed, amongst other things, a restraining order under s 19 of the Proceeds of Crime Act 2002 (Cth) (the Act) and a forfeiture order under s 49 of the Act.

5 The appellants have applied for leave to appeal to this court against the primary judge's decision to dismiss the chamber summons (as amended).

The trial of the second respondent and Brian Millwood Smith

6 In 2007, the second respondent (Mr Corp) and Brian Millwood Smith were tried in the District Court, before Fenbury DCJ and a jury, on an indictment dated 23 December 2005 (as amended) containing 35 counts alleging breaches of Commonwealth laws. The trial occupied almost nine weeks. Verdicts were returned on 4 October 2007.

7 Mr Smith and Mr Corp were directors of, and substantial shareholders in, two public companies, Welcome Stranger Mining NL (WSM) and Hallmark Gold NL (HLM). Each company was engaged in mining exploration and listed on the Australian Stock Exchange (ASX). Mr Smith was the Chairman and Mr Corp the Chief Executive Officer.

8 Mr Smith and Mr Corp worked together in West Perth at a company which they controlled, called BMS Consultants Pty Ltd (BMS). Each of them was a director of BMS. It provided management services to WSM between 1987 and 1998 and to HLM between 1985 and 1998.

9 The indictment (as amended) included count 32A, which alleged in relation to Mr Corp:

On or about 23 January 1998, at Perth in the State of Western Australia, Stuart Adrian CORP did commit an offence against subsection 1317FA of the Corporations Law (as taken to be included in the Corporations Act 2001 (Cth) by section 1401 of that Act), in that being an officer of Welcome Stranger Mining Company NL, he knowingly contravened subsection 232(2) of the Corporations Law (as taken to be included in the Corporations Act 2001 (Cth) by section 1401 of that Act), in that he intentionally deceived Welcome Stranger Mining Company NL and its members, thereby failing to act honestly in the exercise of his powers and the discharge of his duties of office.

By s 1401 of the Corporations Act 2001 (Cth), this offence was deemed to be an offence against a law of the Commonwealth.

10 The prosecution alleged against Mr Corp that at all material times he had a 'relevant interest' in shares in WSM and HLM which were held by the appellants or their nominees. The prosecution also alleged that Mr Corp had not disclosed this relevant interest as required from time to time under the corporations legislation. Mr Corp denied that he had ever had a relevant interest in any of the shares in WSM and HLM held by the appellants or their nominees.

11 At the trial, the jury returned a verdict of guilty against Mr Corp on count 32A.

12 Mr Smith and Mr Corp appealed to this court against various judgments of conviction entered against them as a result of the jury's verdicts. On 17 June 2008, their appeals were allowed. The conviction against Mr Corp on, relevantly, count 32A was quashed and a retrial was ordered. See Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297.

The general scheme of the Act in relation to restraining orders and the confiscation of property

13 The Act establishes a scheme for the confiscation of property, including the proceeds of offences, instruments of offences, benefits derived from offences, proceeds derived from the commercial exploitation of criminal notoriety, and unexplained wealth.

14 This scheme makes provision for, relevantly, the DPP to apply to a court with jurisdiction under the Act for a restraining order. The courts with jurisdiction include the District Court of Western Australia.

15 A restraining order is made in respect of identified property and prohibits any person from disposing of or otherwise dealing with that property except in accordance with the order. A restraining order preserves the identified property in anticipation of a further application for a forfeiture order or a confiscation order.

Restraining orders under s 17 of the Act and various related provisions

16 Section 17 of the Act is concerned with restraining orders covering property in relation to people who have been convicted of, or have been charged with, an 'indictable offence' (as defined in s 338), or who it is proposed be charged with an indictable offence.

A court with * proceeds jurisdiction must order that:

(a) property must not be disposed of or otherwise dealt with by any person; or

(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

if:

(c) the * [DPP] applies for the order; and

(d) a person has been convicted of, or has been charged with, an * indictable offence, or it is proposed that he or she be charged with an indictable offence; and

(e) any affidavit requirements in subsection (3) for the application have been met; and

(f) (unless there are no such requirements) the court is satisfied that the * authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.

The application for the order must be supported by an affidavit of an * authorised officer stating:

(a) if the * suspect has not been convicted of an indictable offence - that the authorised officer suspects that the suspect committed the offence; and

(b) if the application is to restrain property of a person other than the suspect but not to restrain * bankruptcy property of the suspect - that the authorised officer suspects that:

(i) the property is subject to the * effective control of the suspect; or

(ii) the property is * proceeds of the offence or an * instrument of the offence.

The affidavit must include the grounds on which the * authorised officer holds those suspicions.

19 A restraining order can be made under s 17 against property, in relation to an indictable offence, on grounds that relate to possible forfeiture or confiscation orders relating to that offence.

20 By s 39(1) of the Act, the court that made a restraining order, or any other court that could have made the restraining order, may make any ancillary orders that the court considers appropriate. Section 39(1) then identifies various specific orders that the court may make. By s 39(2), the court may make an ancillary order on the application of, amongst other persons, the DPP.

21 Section 48(2) of the Act is concerned with the making of a forfeiture order, forfeiting property to the Commonwealth, if, relevantly, a person has been convicted of one or more indictable offences, and a court, with 'proceeds jurisdiction' (within the meaning given by s 335), is satisfied that the property to be specified in the order is an 'instrument' (within the meaning given by s 329 and s 330) of one or more of the offences. The power conferred on the court by s 48(2) is discretionary.

A court with * proceeds jurisdiction may make an order that property specified in the order is forfeited to the Commonwealth if:

(a) the * [DPP] applies for the order; and

(b) a person has been convicted of one or more * indictable offences; and

(c) subsection (1) does not apply; and

(d) the court is satisfied that the property to be specified in the order is an * instrument of one or more of the offences.

23 Section 48(3) states that, in considering whether it is appropriate to make an order under s 48(2) in respect of particular property, the court may have regard to:

(a) any hardship that may reasonably be expected to be caused to any person by the operation of the order;

(b) the use that is ordinarily made, or was intended to be made, of the property to be specified in the order; and

(c) the gravity of the offence or offences concerned.

24 Proceedings on an application for a restraining order or a confiscation order are civil, not criminal, proceedings. See s 315 of the Act. Subject to s 52 and s 118 (which are not relevant to this appeal), any question of fact to be decided by a court on an application under the Act is to be decided on the balance of probabilities. See s 317(2) of the Act.

25 In s 338 of the Act, 'indictable offence' is defined to mean, relevantly, an offence against a law of the Commonwealth that may be dealt with as an indictable offence (even if it may also be dealt with as a summary offence in some circumstances).

26 At all material times, the offence alleged against Mr Corp in count 32A has been an 'indictable offence', as defined in s 338.

27 At all material times, the District Court has been a court with 'proceeds jurisdiction', within the meaning given by s 335 of the Act.

28 Section 17 and s 48 of the Act form, in essence, the basis of a conviction-based confiscation scheme.

Proceedings under the Act before Mr Corp's conviction in the District Court

29 On 2 January 2004, the DPP filed an originating motion in the District Court (CIVO 1 of 2004). The DPP was the applicant and Mr Corp was the respondent.

30 In the originating motion the DPP sought orders that:

1. Pursuant to section 17 of the Proceeds of Crime Act 2002:

(a) the amount of $659,790.58 and any interest earned on that amount as at the date of this order, being monies held on trust for Happle Limited, Davenrite Limited and Courtenay Investments Limited in Westpac Bank account number ... in the name of Australian Securities and Investments Commission Welcome Stranger Mining Company (NL Trust A/C)

must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in this Order.

1. Pursuant to section 38 of the Proceeds of Crime Act 2002, the Official Trustee in Bankruptcy shall take custody and control of the property referred to in paragraph 1(a) above.

31 Section 38 of the Act empowers the court to order the Official Trustee in Bankruptcy to take custody and control of property, or specified property, covered by a restraining order if the court is satisfied that this is required.

32 The DPP relied on an affidavit of Bradley Dean Drinkwater sworn 24 December 2003 and an affidavit of Wendy Lorraine Quinn sworn 29 January 2004 in connection with the application for a restraining order under s 17 of the Act.

33 In these reasons, I will refer to the amount of $659,790.58 and interest earned on that amount from time to time as 'the Subject Amount'.

34 At all material times, the DPP has alleged that the Subject Amount is an 'instrument' (within the meaning given by s 329 and s 330 of the Act) of the offence alleged in count 32A in that:

(a) the Subject Amount was derived from the disposal of certain shares in WSM;

(b) the shares in question were held by the appellants or their nominees in various proportions; and

(c) Mr Corp failed to declare the nature and extent of his interest in the shares in question and he improperly used the voting rights attached to them.

35 On 5 January 2004, Blaxell DCJ made the orders sought in paragraphs 1(a) and 2 of the originating motion.

Proceedings under the Act after Mr Corp's conviction in the District Court

36 On 5 October 2007 (being the day after Mr Corp's conviction in the District Court), the DPP filed an application in the District Court for an order that the Subject Amount be forfeited to the Commonwealth pursuant to s 48(2) of the Act.

Proceedings under the Act after this court allowed Mr Corp's appeal, quashed the conviction on count 32A and ordered a retrial

37 On 10 July 2008 (being 23 days after this court allowed Mr Corp's appeal and, relevantly, quashed the conviction on count 32A and ordered a retrial), the DPP filed an originating motion (CIVO 82 of 2008) in the District Court. The DPP was the applicant and Mr Corp was the respondent. The application sought orders that:

(1) pursuant to s 17 of the Act, the Subject Amount not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order; and

(2) pursuant to s 38 of the Act, the Official Trustee in Bankruptcy retain custody and control of the Subject Amount.

38 The DPP relied on an affidavit of Steven Craig Perrot sworn 10 July 2008, which annexed the earlier affidavits of Mr Drinkwater and Ms Quinn, in support of the further application for a restraining order under s 17 of the Act.

39 The DPP made the further application because the DPP believed there was a 'sound argument' that, by s 45(1)(c) of the Act, the restraining order made by Blaxell DCJ (in CIVO 1 of 2004) on 5 January 2004 in relation to the Subject Amount would cease to be in force on 15 July 2008, being 28 days after the date on which this court quashed Mr Corp's conviction. See par 15 of Mr Perrot's affidavit.

40 On 11 July 2008, Wisbey DCJ made the orders sought by the DPP.

41 Between 11 July 2008 and 22 August 2008, the DPP decided not to proceed with the retrial of Mr Corp.

42 On 22 August 2008, the DPP filed a notice of discontinuance of count 32A (and other counts) in the District Court.

43 On 18 September 2008 (and as a result of the DPP having decided not to proceed with the retrial of Mr Corp and having filed the notice of discontinuance), the DPP filed a chamber summons in the District Court in which it sought:

(1) a declaration, pursuant to s 39(1)(e)(ii) of the Act, that the Subject Amount is the property of:

(a) pursuant to s 39(1)(e)(i) of the Act, the Official Trustee in Bankruptcy pay the Subject Amount to the entities identified in paragraph (1)(a), (b) and (c); and

(b) the action (that is, CIVO 82 of 2008) be otherwise dismissed.

44 On 3 October 2008, Sweeney DCJ made the declaration and the orders sought by the DPP.

The deregistration of the appellants and the reinstatement of their registration

45 Courtenay Investments Ltd and Davenrite Ltd were incorporated in the British Virgin Islands, and Happle Ltd was incorporated in Gibraltar. In 2008 each of them was deregistered.

46 The Subject Amount has never been paid by the Official Trustee in Bankruptcy in accordance with the orders made by Sweeney DCJ on 3 October 2008. Payment was not made because the appellants had been deregistered.

47 On 31 January 2011, an affidavit was filed in the District Court confirming that the registration of the appellants had been reinstated.

The Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth)

48 The Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (the 2010 Amendment Act) commenced, relevantly, on 19 February 2010. It made extensive and significant amendments to the Act.

49 Before the commencement of the 2010 Amendment Act, s 19 of the Act read:

1. Restraining orders - people suspected of committing indictable offences etc.

(1) A court with *proceeds jurisdiction must order that:

(a) property must not be disposed of or otherwise dealt with by any person; or

(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

(c) the *DPP applies for the order; and

(d) there are reasonable grounds to suspect that the property is:

(i) the *proceeds of a *terrorism offence or any other *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or

and, if the offence is not a terrorism offence, that the offence was committed within the 6 years preceding the application, or since the application was made; and

(e) the application for the order is supported by an affidavit of an *authorised officer stating that the authorised officer suspects that:

(i) in any case - the property is proceeds of the offence; or

(ii) if the offence to which the order relates is a terrorism offence - the property is an *instrument of the offence;

and including the grounds on which the authorised officer holds the suspicion; and

(f) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.

(2) The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is:

(a) in any case - *proceeds of the offence; or

(b) if the offence to which the order relates is a *terrorism offence - an *instrument of the offence.

(3) Despite subsection (1), the court may refuse to make a *restraining order in relation to an *indictable offence that is not a *serious offence if the court is satisfied that it is not in the public interest to make the order.

Note: A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.

Restraining order need not be based on commission of a particular offence

(4) The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular *indictable offence.

(5) The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.

50 By items 39, 40 and 41 in pt 3 of sch 2 to the 2010 Amending Act, the word 'terrorism' appearing in s 19(1)(d)(ii), s 19(1)(e)(ii) and s 19(2)(b) was omitted and replaced with the word 'serious'.

51 By item 42 in pt 3 of sch 2 to the 2010 Amendment Act, the amendments made to s 19 of the Act 'apply in relation to applications made on or after the commencement of the amendments for a restraining order, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement'.

52 Before the commencement of the 2010 Amendment Act, s 49 of the Act read:

1. Forfeiture orders - conduct constituting indictable offences etc.

(1) A court with * proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:

(a) the DPP applies for the order; and

(b) the property to be specified in the order is covered by a * restraining order under section 19 that has been in force for at least 6 months; and

(c) the court is satisfied that one or more of the following applies:

(i) the property is * proceeds of one or more * indictable offences;

(ii) the property is proceeds of one or more * foreign indictable offences;

(iii) the property is proceeds of one or more * indictable offences of Commonwealth concern;

(iv) the property is an instrument of one or more * terrorism offences; and

(d) the court is satisfied that each such offence that is not a terrorism offence was committed within the 6 years preceding the application for the restraining order, or since that application was made; and

(e) the court is satisfied that the DPP has taken reasonable steps to identify and notify persons with an * interest in the property.

(2) A finding of the court for the purposes of paragraph (1)(c):

(a) need not be based on a finding that a particular person committed any offence; and

(b) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in paragraph (1)(c) was committed.

(3) Paragraph (1)(c) does not apply if the court is satisfied that:

(a) no application has been made under Division 3 of Part 2-1 for the property to be excluded from the * restraining order; or

(b) any such application that has been made has been withdrawn.

53 By item 51 in pt 3 of sch 2 to the 2010 Amendment Act, the word 'terrorism' appearing in s 49(1)(c)(iv) was omitted and replaced with the word 'serious'.

54 By item 52 in pt 3 of sch 2 to the 2010 Amendment Act, the amendment made to s 49(1)(c)(iv) of the Act 'applies in relation to applications made on or after the commencement of the amendment for a forfeiture order, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement'.

55 By item 53 in pt 3 of sch 2 to the 2010 Amendment Act, a new subsection (4) was added to s 49 of the Act. The new s 49(4) provides:

Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:

(a) is an * instrument of a * serious offence other than a * terrorism offence; and

(b) is not * proceeds of an offence;

if the court is satisfied that it is not in the public interest to make the order.

56 By item 54 in pt 3 of sch 2 to the 2010 Amendment Act, s 49(4) 'applies in relation to the making of an order on or after the commencement of that subsection, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement'.

57 The significance, for the present case, of the amendments made to s 19 and s 49 of the Act is that:

(a) the offence alleged against Mr Corp in count 32A of the indictment (as amended) was not a 'terrorism offence' (as defined in s 338 of the Act), but is a 'serious offence' (as defined in s 338); and

(b) the amendments apply in relation to applications and orders made on or after the commencement of the amendments, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

Restraining orders under s 19 of the Act (as amended by the 2010 Amendment Act) and various related provisions

58 A restraining order can be made under s 19 against property, in relation to a 'serious offence' (as defined in s 338), on grounds that relate to possible forfeiture or confiscation orders relating to that offence.

59 Section 49(1) of the Act is concerned with the making of a forfeiture order, forfeiting property to the Commonwealth, if, relevantly, a court with proceeds jurisdiction is satisfied that the property to be specified in the order is an instrument of one or more serious offences.

60 Section 49(2) of the Act provides that a finding of the court for the purposes of s 49(1)(c):

(a) need not be based on a finding that a particular person committed any offence; and

(b) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in s 49(1)(c) was committed.

61 Section 49(4) of the Act confers a discretion on the court to refuse to make a forfeiture order under s 49(1) if the court is satisfied that the property in question is an instrument of a serious offence (other than a terrorism offence) and is not proceeds of an offence, and the court is also satisfied that it is not in the public interest to make the order.

62 By s 51 of the Act, the fact that a person has been acquitted of an offence with which the person has been charged does not affect the court's power to make a forfeiture order under s 49 in relation to the offence.

63 Part 2-2 of the Act is headed, 'Forfeiture orders'. Division 1 of pt 2-2 is headed, 'Making forfeiture orders'. Division 1 comprises s 47 - s 53.

64 Section 60 of the Act is concerned with additional applications for a forfeiture order. It provides:

(1) The [DPP] cannot, unless the court gives leave, apply for a * forfeiture order under a section of Division 1 in relation to an offence if:

(i) under this Division for an order under the same section of Division 1; or

(ii) under another law of the Commonwealth (other than Division 1); or

(iii) under a law of a * non-governing Territory;

for the forfeiture or condemnation of the property in relation to the offence; and

(b) the application has been finally determined on the merits.

(2) The court must not give leave unless it is satisfied that:

(a) the property to which the new application relates was identified only after the first application was determined; or

(b) necessary evidence became available only after the first application was determined; or

(c) it is in the interests of justice to grant the leave.

(a) the * [DPP] may apply for a * forfeiture order under a section of Division 1 against property in relation to an offence even though an application has previously been made under a different section of Division 1 for forfeiture of that property in relation to that offence; and

(b) the [DPP] may apply for a forfeiture order against property in relation to an offence even though an application has previously been made for a * pecuniary penalty order or a * literary proceeds order in relation to that offence.

65 The offence alleged against Mr Corp in count 32A is a 'serious offence', as defined in s 338 (other than a 'terrorism offence', as defined in s 338).

66 The Subject Amount is not 'proceeds' of an offence, within the meaning given by s 329 and s 330 of the Act. It is allegedly an 'instrument' of an offence, within the meaning given by s 329 and s 330.

67 Section 19 and s 49 of the Act form, in essence, the basis of a non-conviction-based confiscation scheme.

The DPP's originating summons filed on 23 April 2010

68 As I have mentioned, on 23 April 2010, the DPP filed an originating summons (POC 2 of 2010) in the District Court. The DPP was the applicant. Also, as I have mentioned, in the originating summons the DPP sought, relevantly, a restraining order under s 19 of the Act and a forfeiture order under s 49 of the Act. The restraining order and the forfeiture order related to the Subject Amount.

69 The originating summons was supported by an affidavit of Wayne John Eacott sworn 23 April 2010. Mr Eacott is a federal agent and a member of the Australian Federal Police. He said, in par 3 of his affidavit, that he suspected that an amount of $885,003.47 (being the then total of the Subject Amount) held by the Official Trustee in Bankruptcy, was an instrument of a serious offence.

70 On 10 June 2010, Acting Chief Judge Martino, upon the application of the DPP in POC 2 of 2010:

(a) made a restraining order in relation to the Subject Amount pursuant to s 19 of the Act; and

(b) stayed, until further order, the order made by Sweeney DCJ on 3 October 2008 to the effect that the Official Trustee in Bankruptcy pay the Subject Amount as specified in paragraph (1)(a), (b) and (c) of Sweeney DCJ's order.

The appellants' chamber summons filed on 21 October 2010

71 As I have mentioned, on 21 October 2010, the appellants filed a chamber summons in the District Court. The chamber summons (as amended) sought various orders including an order that the DPP's originating summons be struck out 'pursuant to the inherent jurisdiction of the court'.

72 The grounds relied on by the appellants in the chamber summons (as amended) for their contention that the originating summons should be struck out were that:

(b) it failed to disclose a reasonable cause of action; and

73 The primary judge recorded in her reasons that at the hearing of the chamber summons (as amended) the appellants sought relief based on the following:

1. that [Acting Chief Judge Martino] had no jurisdiction to stay a 'final order' of [Sweeney DCJ];
2. that the proceedings for a restraining order involve the same cause of Action as was previously dismissed in CIVO 82/2008, founded upon the same facts and evidence, and in those circumstances, are an abuse of process, by reason of:

(i) res judicata;

(ii) issue estoppel;

(iii) 'Anshun' estoppel (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589).

1. that due to the discontinuance of the prosecution against Mr Corp and the absence of any fresh evidence deposed to since that time the evidence in support of the application for the restraining order was fundamentally flawed;
2. that the new proceedings are a collateral attack on an earlier judgment;
3. that it is oppressive and vexatious to litigate in new proceedings a matter that has been previously disposed in earlier proceedings [19].

74 The primary judge noted that the appellants sought to invoke 'the inherent jurisdiction of the court to intervene to prevent an abuse of process of the court and to forestall the revisitation of matters previously adjudicated' [39].

75 After recording the history of the several proceedings involving the appellants and the DPP, and the arguments of the parties in relation to abuse of process, her Honour referred to the decision of the High Court in PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384.

76 The primary judge noted that 'oppression was alleged although not argued in any detail' [47]. She added that 'no specific facts or matters were referred to or relied upon, save the implied prejudice of having to deal with the proceedings now brought' [47].

77 Her Honour mentioned the DPP's submission that a heavy onus rests upon those who assert an abuse of process, and that the power to strike out for abuse is exercised only in exceptional circumstances [53]. Her Honour also mentioned that the DPP had cited Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 and Willoughby v Clayton Utz [No 2] [2009] WASCA 29; (2009) 40 WAR 98.

78 Later, her Honour referred to the DPP's argument that 'no actual prejudice has been pointed to by [the appellants] in support of any oppression for the purposes of the allegation of abuse of process' [57].

79 The primary judge held that there was no merit in the appellants' argument based on res judicata. Her Honour's reasoning was as follows:

Although the subject matter of the proceedings is common throughout the history of this matter, (save for the fact that originally the shares were restrained), and the interim holding mechanism adopted is the same method, the statutory grounds upon which the DPP makes the application currently are distinct from those that applied earlier, although seeking the same remedy. The initial proceedings for restraint were under s 17 of the Act, a conviction based mechanism, giving rise to an application by s 48(2) for forfeiture, which fell away upon Mr Corp's appeal. The current application is under s 19, for the restraint, and s 49, for the forfeiture of the [Subject Amount]. No application for forfeiture had been made in connexion with the restraining order of July 2008.

In my opinion, considering those matters, it is clear that there has been no determination of any application for forfeiture on the merits, or at all, in the course of these proceedings, under any section of the Act. The issue has never been argued, on any basis, and its progress has been governed by the provisions of the Act, in conjunction with the criminal indictment against Mr Corp. Following the decision not to retry Mr Corp, there was no mechanism under the Act for proceedings to be taken in relation to the Funds in 2008.

This demonstrates clearly differences between the earlier proceedings and these proceedings. It makes apparent the fact that there was no action to be taken until the passage of the amending legislation in February 2010. In my view, this is a fresh action under the Act, for the making of both restraining order and a forfeiture order under s 19 and s 49. The argument that the principles of res judicata could be applied in these circumstances fails [63] - [65].

80 Her Honour said that the orders made by Sweeney DCJ on 3 October 2008 did not raise an issue estoppel in that the 'restraining order proceedings were not determined by the parties, or the court, but fell away due to the provisions of s 45 of the Act' [66].

81 The primary judge decided that there was 'no room ... for any argument based upon an "Anshun" estoppel as the applications under s 19 and s 49 could not have been raised in relation to the [Subject Amount] before the Act was amended' [67].

82 Her Honour held that Sweeney DCJ's order directing the Official Trustee in Bankruptcy as to how to distribute the Subject Amount was not a 'final order' in any action [70]. This order was 'on the face of [it] and in practical terms, [merely] ancillary pursuant to s 39 [of the Act]' [70].

83 The primary judge was not persuaded that the appellants had established that the originating summons was an abuse of the court's process, nor that the pursuit of the relief sought in that summons was oppressive 'such as to justify striking out the originating summons' [71].

84 The appellants' case, filed on 15 April 2011, contains five grounds of appeal. They read:

1. The learned Trial Judge erred at law in confining the appellants' argument that the conduct of the [DPP] constituted an abuse of process to a consideration of [the] doctrine of res judicata.
2. The learned Trial Judge should have held the doctrine of abuse of process:

2.1 was raised by the appellants in argument before Her Honour;

2.2 was argued to arise in circumstances outside the cases applying the doctrine of res judicata;

2.3 applies in the circumstances identified by Her Honour [59] where the use of Court processes would be unjustifiably oppressive to a party or bring the administration of justice into disrepute; and

2.4 on the facts of this case.

1. Further, the learned Trial Judge should have held in the circumstances on the facts of this case the new proceedings commenced by the [DPP] infringed the rule against collateral attack on an earlier judgment of the Court and constituted an act by the [DPP] inconsistent with the judgment.
2. The learned Trial Judge erred in law [70] in holding that the orders of Her Honour Justice [sic] Sweeney were ancillary orders pursuant to section 39 of the Proceeds of Crime Act, 2002 (Cth) and failing to find that the order of the then Acting Chief Judge of the District court, His Honour Justice [sic] Martino, made on 6 May 2010 was beyond jurisdiction.
3. The learned Trial Judge should have held that the order of the Honourable [sic] Justice [sic] Martino should be set aside, the [DPP] having consented to the orders made by Her Honour Justice [sic] Sweeney and having failed:

5.1 to apply to re-open the matter;

5.2 to appeal the orders of Her Honour.

85 On 9 May 2011, Newnes JA ordered that the application for leave to appeal be referred to the hearing of the appeal.

The abandonment of some of the grounds of appeal

86 At the hearing of the appeal, counsel for the appellants abandoned some of the grounds of appeal.

(a) he did not rely on the doctrine of res judicata, issue estoppel or Anshun estoppel (appeal ts 4, 6); and

(b) he disclaimed any assertion that the orders made by Sweeney DCJ on 3 October 2008 were not ancillary orders pursuant to s 39 of the Act, and he also disclaimed any assertion that the order made by Acting Chief Judge Martino on 10 June 2010 was not within power (appeal ts 6 - 7).

88 Counsel for the appellants said that he was relying solely on 'the central argument of abuse', and nothing else (appeal ts 7).

89 Counsel for the appellants submitted that the primary judge failed to consider, by reference to 'the broad category of abuse of process', whether the DPP's conduct was, in all the circumstances, 'unjustifiably ... oppressive or would otherwise bring the administration [of justice] into disrepute'.

90 Counsel also submitted that, in any event, her Honour erred in deciding that the originating summons was not an abuse of process and that the DPP's pursuit of the relief sought in the summons was not oppressive.

91 It was emphasised that the affidavit of Mr Eacott sworn 23 April 2010, which was relied on by the DPP in support of the restraining order sought under s 19 of the Act, annexed Mr Perrot's affidavit which, in turn, annexed Mr Drinkwater's and Ms Quinn's affidavits. Mr Eacott suspected that Mr Corp had committed the offence the subject of count 32A in the indictment (as amended). His suspicion was based on the material in the annexed affidavits, all of which had been relied on in support of the DPP's applications for restraining orders under s 17 of the Act. Further, Mr Eacott failed to rely on or identify any fresh evidence that was not available to the DPP on 17 June 2008, when this court allowed Mr Corp's appeal and, relevantly, quashed the conviction on count 32A and ordered a retrial.

92 Counsel for the appellants summarised their argument, based on abuse of process, as follows:

(a) The DPP made a conscious decision to discontinue the prosecution of count 32A in the knowledge that, as a result, the restraining order under s 17 of the Act would lapse.

(b) The DPP 'facilitated' the making of the orders by Sweeney DCJ.

(c) Although the 2010 Amendment Act commenced only about two months before the third application for a restraining order was made, this application relied on 'identical factual material' to that relied on by the DPP in the first and second applications. According to counsel, '[as] such, the new proceedings infringe the rule against collateral attack of an earlier judgment'. Counsel added that the DPP had 'sought an order inconsistent with the judgment which may, on any view, tarnish the judgment'.

(d) There is no distinction in principle between a restraining order under s 17 and a restraining order under s 19. The restraining order under s 17 was 'a precursor to the ultimate relief sought, being forfeiture upon obtaining conviction'.

(e) In these circumstances, the third application was an abuse of process.

The appellants' case on abuse of process: the applicable legal principles

93 Every court has inherent or implied power to prevent its procedures being abused. See Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529, 536 (Lord Diplock); Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 286 (McHugh J).

94 What will constitute an abuse of process is incapable of being described exhaustively. See Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 [9] - [15] (Gleeson CJ, Gummow, Hayne & Crennan JJ); PNJ [3] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).

95 The High Court has stated, however, that at least one of three characteristics will be apparent in many cases of abuse of process, namely:

(a) a court's processes being invoked for an illegitimate or collateral purpose;

(b) the use of a court's procedures being unjustifiably oppressive to a party; or

(c) the use of a court's procedures bringing the administration of justice into disrepute.

See Rogers (286) (McHugh J); Batistatos [15]; PNJ [3]; Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117 [10] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

96 Several propositions as to the nature of abuse of process, and what can constitute abuse of process, may be discerned from the reasons of French CJ, Gummow, Hayne and Crennan JJ in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 [27] - [28]. First, a court has inherent or implied power to prevent misuse of its procedures in a manner which, although not inconsistent with the literal application of its procedural rules, would nevertheless be 'manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people' (Hunter (536) (Lord Diplock), adopted by the majority (Mason CJ, Deane & Dawson JJ) in Walton (393)). Secondly, abuse of process extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment' (Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 74 - 75 (Gaudron J), approved in Batistatos [14] (Gleeson CJ, Gummow, Hayne & Crennan JJ)). Thirdly, the categories of abuse of process are not closed, and a court may exercise its power in relation to an abuse of process 'as and when the administration of justice demands' (Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 74 (Gaudron J), approved in Walton (394) (Mason CJ, Deane & Dawson JJ)). Fourthly, the categories of conduct which have attracted the intervention of the courts on the ground of abuse of process have included successive proceedings which cause or are likely to cause 'improper vexation or oppression' (Jacob IH, 'The Inherent Jurisdiction of the Court' (1970) 23 Current Legal Problems 23, 43).

97 In Walton, Mason CJ, Deane and Dawson JJ said that the powers of a court in relation to proceedings that are an abuse of process extend to 'all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness' (393). One of the examples given by their Honours of such an abuse of process is where an estoppel cannot be established, but the proceedings in question are unjustifiably oppressive in that it is sought to litigate an issue which has already been disposed of by earlier proceedings. See Reichel v Magrath (1889) 14 App Cas 665, 668 (Lord Halsbury LC, Lord Watson); Connelly v Director of Public Prosecutions [1964] AC 1254, 1361 - 1362 (Lord Pearce); Rogers (286 - 287). See also Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328 [31] - [32] (Gleeson CJ, Heydon & Crennan JJ).

The merits of the appeal: the primary judge's alleged failure to consider the appellants' case by reference to 'the broad category of abuse of process'

98 Counsel for the appellants complained that the primary judge had failed to consider, by reference to 'the broad category of abuse of process', whether the DPP's conduct was, in all the circumstances, unjustifiably oppressive or would otherwise bring the administration of justice into disrepute.

99 The appellants' chamber summons (as amended) sought an order, amongst others, that the originating summons be struck out, 'pursuant to the inherent jurisdiction of the court', on the ground that it was 'an abuse of process'.

100 At the hearing before her Honour, counsel for the appellants cited Walton (393) and Rogers (275, 286) (ts 50 - 52). Counsel also read passages from those cases, and made the following submission:

These are funds that have been frozen since 2004. We're in 2011. In 2010 a late application is made, in the face of an order made by this court directing the return of those funds to my clients, to restrain them again, and we say that falls squarely within the principles that are enunciated in Walton's case as an abuse of process (ts 51).

101 As I have mentioned, the primary judge referred to 'abuse of process' and 'oppression' in her reasons. Her Honour noted that 'oppression was alleged although not argued in any detail' and that 'no specific facts or matters were referred to or relied upon, save the implied prejudice of having to deal with the proceedings now brought' [47]. Her Honour also noted counsel for the DPP's reference to 'the heavy onus upon those who assert an abuse of process' and that the powers of the court 'are only to be exercised in exceptional circumstances' [53]. Finally, her Honour concluded that she was not persuaded that the appellants had established that the originating summons was an abuse of process, nor that the pursuit of the relief sought in the originating summons was oppressive 'such as to justify striking out the originating summons' [71].

102 It is apparent from the transcript of the hearing before her Honour that counsel for the appellants focussed primarily upon res judicata, issue estoppel and Anshun estoppel in the context of his argument that Sweeney DCJ's orders made on 3 October 2008 were final, and not ancillary.

103 My impression, upon reading the transcript of the hearing and her reasons, is that the primary judge may not have appreciated the scope of the appellants' case based on abuse of process. But any lack of appreciation by her Honour was, in my view, attributable to the manner in which counsel for the appellants presented their argument at the hearing. Oppression was raised but barely pressed.

104 However this may be, I will consider and determine the appellants' case, as presented to this court, by reference to 'the broad category of abuse of process'. This court has no disadvantage, compared to the primary judge, in deciding this issue.

The merits of the appeal: the appellants' case by reference to 'the broad category of abuse of process'

105 I am satisfied that the primary judge was correct in deciding to dismiss the appellants' chamber summons (as amended). The originating summons was not an abuse of process. The DPP's conduct in filing the originating summons and pursuing the proceedings was not, in all the circumstances, unjustifiably oppressive, and would not bring the administration of justice into disrepute. The proceedings are not seriously and unfairly burdensome, prejudicial or damaging, and they are not productive of serious and unjustified trouble and harassment. My reasons are as follows.

106 First, although the first, second and third restraining orders relate to the Subject Amount and the primary facts are identical, the cause of action on which the third restraining order is based is materially different from the cause of action on which the first and second restraining orders were based. As I have mentioned, s 17 and s 48 of the Act form, in essence, the framework of a conviction-based confiscation scheme, whereas s 19 and s 49 of the Act form, in essence, the framework of a non-conviction-based confiscation scheme. Section 17 and s 48 on the one hand, and s 19 and s 49 on the other, require proof of some materially different matters. The statutory grounds for the third application are separate and distinct from the statutory grounds for the first and second applications. The current proceedings (unlike the previous proceedings) will require proof that Mr Corp committed the offence alleged in count 32A as distinct from proof of a prior conviction for that offence.

107 Secondly, the 2010 Amendment Act did not commence until 19 February 2010. It was not open to the DPP to file initiating process under s 19 and s 49 of the Act until on or after that date. On 23 April 2010, the DPP filed the originating summons claiming relief under s 19 and s 49. There was no material delay in commencing the proceedings. The 2010 Amendment Act expressly states that a restraining order may be made under s 19 and a forfeiture order may be made under s 49 even though the conduct constituting the offence in question occurred before the commencement of the 2010 Amendment Act.

108 Thirdly, no forfeiture application in relation to the Subject Amount has been finally determined on the merits.

109 As to the first restraining order, it is true that on 5 October 2007 (being the day after Mr Corp's conviction in the District Court), the DPP filed an application in the District Court for an order that the Subject Amount be forfeited to the Commonwealth pursuant to s 48(2) of the Act. However, the District Court did not make an order for forfeiture under s 48(2). As I have mentioned, the court's power under s 48(2) is discretionary. (Compare the court's power under s 48(1), which is not discretionary.) In any event, on 17 June 2008 this court allowed Mr Corp's appeal and, relevantly, quashed the conviction on count 32A and ordered a retrial. By virtue of s 45(1), the first restraining order ceased to be in force, at the latest, on 22 August 2008, upon the DPP filing the notice of discontinuance.

110 As to the second restraining order, by virtue of s 45(1), this order ceased to be in force on 22 August 2008, upon the DPP filing the notice of discontinuance.

111 Fourthly, in the circumstances which existed as at 18 September 2008, it was proper for the DPP to file a chamber summons seeking the declaration and the orders made by Sweeney DCJ on 3 October 2008. At that time, the DPP had decided not to proceed with the trial of Mr Corp and had filed the notice of discontinuance. Also, at that time, the 2010 Amendment Act had not been enacted, and it was not open to the DPP to obtain any relief under the Act in relation to the Subject Amount based on the offence which had been alleged in count 32A.

112 Fifthly, the orders made by Sweeney DCJ on 3 October 2008 were stayed by Acting Chief Judge Martino on 10 June 2010. As I have mentioned, at the hearing of the appeal, counsel for the appellants expressly disclaimed any assertion that the orders of Sweeney DCJ were final, as distinct from ancillary, and counsel also expressly disclaimed any assertion that the order made by Acting Chief Judge Martino was not within power.

113 Sixthly, the current proceedings are not to be characterised as an attempt to re-litigate matters determined in the previous proceedings. As I have mentioned:

(a) the cause of action on which the third restraining order is based is materially different from the cause of action on which the first and second restraining orders were based;

(b) no forfeiture application in relation to the Subject Amount has been finally determined on the merits;

(c) pursuant to s 45(1), by 22 August 2008 the first and second restraining orders had ceased to be in force;

(d) the orders made by Sweeney DCJ on 3 October 2008 were made before the enactment of the 2010 Amendment Act, and counsel for the appellants expressly disclaimed any assertion that those orders were final, as distinct from ancillary; and

(e) counsel for the appellant expressly abandoned any reliance on the doctrine of res judicata, issue estoppel or Anshun estoppel.

114 Seventhly, the Act expressly contemplates that multiple applications may be made for a forfeiture order under div 1 of pt 2-2. See s 60(1) which provides that the DPP cannot, unless the court gives leave, apply for a forfeiture order under a section of div 1 in relation to an offence if, in essence, an application has previously been made under div 3 for an order under the same section of div 1, or under certain other specified laws, for the forfeiture or condemnation of the property in relation to the offence, and the application has been finally determined on the merits. So, the prohibition in s 60(1) on the DPP making an application for a forfeiture order under a section of div 1 in relation to an offence (subject to the court's power to give leave) does not apply unless the previous application (or one of the previous applications) was made, relevantly, under div 3 for an order under the same section of div 1. In the present case, the application for forfeiture in connection with the first restraining order was made, and the application for forfeiture in connection with the second restraining order would have been made, under s 48, whereas the application for forfeiture in connection with the third restraining order will be made under s 49.

115 Eighthly, the appellants do not allege that they are suffering or have suffered any actual prejudice or hardship as a result of the DPP's conduct in filing the originating summons and pursuing the proceedings. They rely on implied prejudice. The alleged implied prejudice carries little weight. The Subject Amount is under the custody and control of the Official Trustee in Bankruptcy, and the principal, for the time being, continues to accrue interest. By the orders made by Sweeney DCJ on 3 October 2008, the Official Trustee was required to pay the Subject Amount to the appellants, but was unable to comply with this order because the appellants had been deregistered. Those orders were stayed by Acting Chief Judge Martino on 10 June 2010. When the application for the forfeiture order under s 49 is heard and determined by the court, the court may, by s 49(4), refuse to make the order if, relevantly, the court

is satisfied that it is not in the public interest to make the order. In my opinion, the concept of 'public interest', in this context, is sufficiently broad to include, as factors requiring consideration, any relevant prejudice or hardship.

116 Ninthly, the criminal proceedings against Mr Corp, and the outcome of those proceedings, are not relevant in assessing the alleged abuse of process, and the alleged unjustifiable oppression, as against the appellants. Mr Corp claims to have no relevant interest in the Subject Amount. Also, the appellants claim to have no connection with Mr Corp in relation to the Subject Amount. In any event, s 51 states that the fact that a person has been acquitted of an offence with which the person has been charged does not affect the court's power to make a forfeiture order under s 49 in relation to the offence.

117 I would grant leave to appeal but, for the reasons I have given, the appeal should be dismissed.