Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Practice and procedure - Restitution orders enforced as a result of conviction - Whether Court of Criminal Appeal has power to annul restitution in quashing of conviction - Whether Court of Criminal Appeal should annul restitution order - Whether Court of Criminal Appeal has power to order repayment of money and interest paid pursuant to restitution order - Whether power to order repayment is discretionary

Criminal Appeals Act 2004 (WA), s 40

Criminal Code (WA), s 687, s 687(3), s 694(1), s 694(2), s 697

Rules of the Supreme Court 1971 (WA), O14 r 3, O 63 r 10(2)

Sentencing Act 1995 (WA), Pt 16, s 110(1), s 140(1)

Supreme Court Act 1935 (WA), s 16, s 58(2)

The Court of Criminal Appeal has a discretionary power to order repayment of moneys paid pursuant to a restitution order

Ardrey v Bartlett [2004] WASCA 256

Battenberg v Union Club [2005] NSWSC 242

BHP Steel (JLA) Pty Ltd v Khan (No 2) [2001] NSWCA 269

Caldwell v Hill [2000] NSWCA 239

Central Electricity Board of Mauritius v Bata Shoe Co (Mauritius) Ltd [1983] 1 AC 105

Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220

Connell v The Queen (No 5) (1993) 10 WAR 424

Cox v Hakes (1890) 15 App Cas 506

DPP v Shirvanian (1998) 44 NSWLR 129

Government Insurance Office of New South Wales v Healy [No 2] (1991) 22 NSWLR 380

Grady v The Commissioner for Railways (NSW) [1935] HCA 44; (1935) 53 CLR 229

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Haig v The Minister Administering the National Parks and Wildlife Act 1974 (No 3) (1996) 90 LGERA 408

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

Heydon v NRMA Ltd (No 2) [2001] NSWCA 445; (2001) 53 NSWLR 600

Hou v The Queen [2003] WASCA 241

Ireland v The Queen, unreported; CCA SCt of WA; Library No 9401656; 6 May 1994

Jackson v Sterling Industries Ltd (1986) 69 ALR 92

Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612

Krishna v Loustos (No 2) [2001] NSWCA 99

Lee v Mallam (1910) 10 SR (NSW) 876

MacIntosh v Lobel (1993) 30 NSWLR 441

Meerkin & Apel v Rossett Pty Ltd (No 2) [1999] VSCA 10; [1999] 2 VR 31

National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] VicRp 31; [1991] 1 VR 386

Nicholson v The Queen, unreported; CCA SCt of WA; Library No 980698; 7 December 1998

Osenton v Johnston [1942] AC 130

Production Spray Painting & Panel Beating Pty Ltd v Newnham [No 2] (1992) 27 NSWLR 659

R v Collins [1970] 1 QB 710

R v Court [2003] WASCA 308

R v Easterday [2003] WASCA 69; (2003) 143 A Crim R 154

R v Grein [1989] WAR 178

R v Jefferies [1969] 1 QB 120

R v Mickelberg (1996) 90 A Crim R 126

R v Palmer [1969] 1 NSWR 484

R v Wilson [1835] EngR 847; (1835) 111 ER 624

Rimanic v Business Licensing Authority [2002] VSCA 64; (2002) 129 A Crim R 356

Rodger v Comptoir D'Escompte de Paris [1871] EngR 3; (1871) LR 3 PC 465

TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; (1999) 48 NSWLR 381

The Commonwealth v McCormack [1984] HCA 57; (1984) 155 CLR 273

Turnbull v The Queen [2003] WASCA 80

White v Tomasel [2004] QCA 89; [2004] 2 Qd R 438

Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13; (1981) 145 CLR 590

Andjelic v Marsland [1996] HCA 55; (1996) 186 CLR 20

Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267

Elspan International Ltd v Eurocopter International Pacific Ltd [1999] NSWSC 555

Hadoplane Pty Ltd v Edward Rushton Pty Ltd [1996] 1 Qd R 156

Henave Pty Ltd v LFOT Pty Ltd [2003] FCA 1154

Heytesbury Holdings Pty Ltd v City of Subiaco (1989) 19 WAR 440

Idemitsu Queensland Pty Ltd v Agipcoal Australia Pty Ltd [1996] 1 Qd R 26

JEL v DDF (No 2) [2001] FamCA 907; (2001) 28 Fam LR 119

Kuwait Oil Tanker Co SAK v Al Bader [2000] EWCA Civ 160; [2000] 2 All ER (Comm) 271

London Chatham & Dover Railway Co v South Eastern Railway Co [1893] AC 429

Lynch v Hargrave [1971] VicRp 11; [1971] VR 99

Menvil's Case [1572] EngR 247; (1584) 77 ER 1430

Mustafa v The Queen [2002] WASCA 357; (2002) 27 WAR 73

Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1997] UKHL 53; [1998] 1 All ER 305

Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221

Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254

R v Ferrari [1997] QCA 73; [1997] 2 Qd R 472

R v Hellier [1851] EngR 535; (1851) 17 QB 229

R v Holton [2004] NSWCCA 214; (2004) 41 MVR 89

R v Jones (1722) 93 ER 643

Re AB (an infant) [1950] VicLawRp 1; [1950] VLR 1

Ronstan International Pty Ltd v Thomson [2002] VSCA 107

Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516

Royal South Australian Yacht Squadron v Attorney­General [1938] SASR 430

SCI Operations Pty Ltd v Commonwealth of Australia (1996) 69 FCR 346

State Bank of New South Wales Ltd v Federal Commissioner of Taxation (1995) 62 FCR 371

Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520

Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1994] 4 All ER 890

Winterton Constructions Pty Ltd v Hambros Australia Ltd [1991] FCA 171; (1991) 101 ALR 363

Wright, Danci & Currie (1992) 77 A Crim R 67

1 STEYTLER J: Each of the applicants was convicted, in 1993, of one count of conspiracy to defraud and 10 counts of false pretences. Following their convictions the applicants were ordered by the trial Judge, on 30 July 1993, to make restitution of specified assets (primarily money) obtained by them as a result of their commission of the offences. The restitution so ordered was in favour of a company, Norilya Minerals Pty Ltd ("Norilya"). Money paid by that company was said to have been the source of the assets obtained by the three applicants.

2 The restitution orders (later amended on 20 August 1993) were made pursuant to s 717 of the Criminal Code (WA), as that section then stood (it was repealed in 1995 upon the enactment of the Sentencing Act 1995 (WA) which, by Pt 16, makes provision for compensation and restitution orders). The section read, so far as is relevant, as follows:

717 (1) Where a person is convicted of an offence, and it appears to the sentencing court that there is in the possession of the offender or any other person -

(a) any property to which the offence relates; or

(b) any other property derived from any sale or disposition of any property to which the offence relates,

the court may, at any time, whether or not any punishment is imposed on the offender for the offence, order -

(c) that the offender, or any person in possession of the property to which the offence relates, transfer or deliver that property to the aggrieved person; or

(d) where that property has been sold or disposed of and it is inexpedient that it be transferred or delivered to the aggrieved person, that the offender or any person transfer or deliver to the aggrieved person any other property derived from the sale or disposition.

(2) An order under subsection (1) may be made by the court of its own motion or upon the application of the prosecutor or a person who appears to the court to have an interest in the making of the order.

...

(7) In this section -

'aggrieved person' means the person who appears to the court to be entitled to the benefit of an order under this section;

...".

3 The applicants appealed against their convictions. Enforcement of the restitution orders was stayed, pending the appeal. However, the appeal was dismissed (Ireland v The Queen, unreported; CCA SCt of WA; Library No 9401656; 6 May 1994). The restitution orders were thereafter enforced and restitution was made by the applicants.

4 Some years later the applicants lodged a petition for the exercise of the Royal Prerogative of Mercy. The petition was referred to the Court of Criminal Appeal pursuant to s 140(1) of the Sentencing Act (it is important to mention that that section has the effect that the petition is "to be heard and determined as if it were an appeal ... against the conviction[s]"). On 28 March 2003, that Court quashed the convictions of each of the applicants: R v Easterday [2003] WASCA 69; (2003) 143 A Crim R 154. The applicants have since applied for orders "annulling" the restitution orders and ordering the payment to the applicants of a sum of money equal to the value of the restitution made by them to Norilya and interest. They have also applied to join a company, Noranda Inc, as a respondent to the application. That company is said by the applicants to have been related to Norilya during and after 1993 and ultimately to have benefited from the restitution made to Norilya.

5 By order made on 1 September 2003, four issues were ordered to be determined on a preliminary basis. As they came to be argued, they are, in effect:

(1) whether the Court of Criminal Appeal has power to annul the restitution orders and, if so, whether it should annul them;

(2) if the orders are annulled, whether the Court of Criminal Appeal has power to order the repayment to the applicants of a sum of money equal to the value of the restitution made by them to Norilya and interest;

(3) if the Court of Criminal Appeal has the power to make the order in (2) above, whether that power is discretionary;

(4) whether Noranda Inc should be joined as a respondent to the application.

6 Immediately prior to the hearing of the preliminary issues the applicants informed the Court, by way of a written submission in reply to the respondent's submissions, that they were not proceeding with their application to join Noranda Inc (perhaps because of the difficulty of obtaining restitution, in this context, from someone other than a party to the judgment: D M Gordon QC: "Effect of reversal of judgments and acts done between pronouncement and reversal" (1958) 74 LQR 517 at 523). That application was subsequently dismissed by consent. Issue (4) consequently fell away. I will deal with the other issues in turn.

Issues (1) and (2) - The power to annul restitution orders and the question whether repayment can be ordered

7 It is convenient to deal with issues (1) and (2) together.

8 The Court of Criminal Appeal, being a creature of statute (having been established pursuant to s 687 of the Code), has no powers beyond those conferred by Parliament: R v Jefferies [1969] 1 QB 120; R v Collins [1970] 1 QB 710; R v Palmer [1969] 1 NSWR 484; and Connell v The Queen (No 5) (1993) 10 WAR 424 at 445.

9 There is nothing in the Code which, in so many words, expressly confers upon the Court of Criminal Appeal the power, upon quashing a conviction, to annul a restitution order which depended upon the conviction or to order the repayment of money paid, or the return of property transferred, pursuant to that restitution order. Counsel for the applicants contends that these powers nonetheless exist as part of what he described as the Court's "inherent supervisory power" imported by one or both of s 694(2) and s 697 of the Code, as those sections read at the time of the hearing of this application. Section 694(2) (repealed in May 2005) read as follows:

"The Court of Criminal Appeal may by order annul or vary any order made on a trial for the restitution of any property to any person, although the conviction is not quashed; and the order, if annulled, shall not take effect, and if varied shall take effect as so varied."

10 Section 697, until its repeal and re-enactment (in a somewhat different form) in s 40 of the Criminal Appeals Act 2004 (which took effect in May 2005) read, so far as it is relevant, as follows:

"For the purposes of this chapter [ch LXIX], the Court of Criminal Appeal [later amended to refer to the Court of Appeal] may, if they think it necessary or expedient in the interests of justice -

... [there are then set out a number of specific powers which may be exercised]

and exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals in civil matters ...".

11 The Director of Public Prosecutions accepts that there is a power to annul a restitution order which depended upon a conviction which has since been overturned (indeed, he submitted that the annulment is an automatic consequence of overturning the conviction), but disputes that there is any power to order repayment of moneys paid pursuant to a restitution order. He submits that there is nothing in s 694(2) which can be read as conveying the latter power, as that section confers a power to modify or annul a restitution order only if a conviction is not quashed. As to s 697, he contends that its purpose is that of conferring upon the Court of Criminal Appeal ancillary powers for the purposes of ch LXIX of the Code, being the hearing and determining of appeals to the Court of Criminal Appeal. He submits that nothing in that section either expressly or impliedly confers on the Court of Criminal Appeal a power to make orders compelling non-parties to a criminal appeal to hand over funds to successful appellants.

12 Counsel for Norilya accepted, in his written submissions, that the Court has power, "in its inherent supervisory jurisdiction", to set aside the restitution orders and also to make consequential orders concerning the property transferred by the applicants pursuant to those orders. He said that these powers are imported by s 697 of the Code (but not by s 694(2)). However he contended that the latter power is restitutionary in nature, with the "supervisory power" to grant consequential relief resting upon the doctrine of unjust enrichment, and that it is for the applicants to establish that Norilya has been unjustly enriched before any such relief is afforded them. When he came to make his oral submissions, he suggested that s 697 may not, in fact, have any application because the powers conferred by that section were conferred "For the purposes of ... chapter [LXIX]" and s 717 was not part of that chapter. He also contended that it was open to the Court of Criminal Appeal to exercise a discretion to decline to enter upon the question, leaving it to a first-instance court, exercising civil jurisdiction, to deal with the issue.

13 It is important, when considering questions of the kind which have arisen in this case, to distinguish between jurisdiction and power, and also between inherent and implied jurisdiction or power.

14 As to the first of those distinctions, while the words "jurisdiction" and "power" are often used interchangeably, they are conceptually different in the sense pointed out by Toohey J in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 136. His Honour there said that:

"The distinction between jurisdiction and power is often blurred, particularly in the context of 'inherent jurisdiction'. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and 'such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred': Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235, at p 241 ...".

15 As to the second distinction, Bowen CJ, in Jackson v Sterling Industries Ltd (1986) 69 ALR 92 at 97, said, in a passage approved on the appeal to the High Court (Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612) by Deane J (with whom Mason CJ and Wilson and Dawson JJ were in agreement) at 623 - 624:

"In relation to a statutory court ... it is wise to avoid the use of the words 'inherent jurisdiction'. Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power."

16 Similarly, in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 16 - 17, Dawson J said:

"However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise ... Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is ... fundamental."

17 See also DPP v Shirvanian (1998) 44 NSWLR 129 at 132 - 133, per Mason P (with whom Beazley JA was in agreement).

18 That brings me to the question whether there is, in the Code, an express or implied power to make either of the orders sought.

19 As to the first of the sections relied upon by counsel for the applicants, s 694(2), I am unable to accept that that section imports either power. Section 694(1) provides that the operation of any order for the restitution of any property to any person made on a conviction on indictment shall (unless the primary Court directs otherwise in a case in which title to the property is not in dispute) be suspended until the determination of an appeal instituted within 10 days of the conviction and that, if the conviction is quashed, the order shall not take effect. There was consequently no need, in the case of an appeal of the kind described, to provide for a power to annul the order where the conviction is quashed. However, it was presumably thought necessary to give to the Court the power, on an appeal, to annul or vary the order even though the conviction is not quashed and that is all that s 694(2) is directed towards. It consequently seems to me that there is nothing in that section which can be read as providing for inherent powers of the Court, whether supervisory or otherwise, of the kind contended for in this case.

20 As to s 697 of the Code, it will be apparent from what I have earlier said that that section provides for the conferral of supplemental powers on the Court of Criminal Appeal (now the Court of Appeal), including powers which may be exercised by the Supreme Court on appeals in civil matters. The section has been considered by the Court of Criminal Appeal on a number of occasions. In R v Mickelberg (1996) 90 A Crim R 126, Malcolm CJ (with whom I agreed) said, at 129, that the section was "sufficient to bring into play" all of the powers of the Full Court in civil appeals and that it also brought "into play the residual powers of the court in its inherent jurisdiction: Muto v Faul [1980] VicRp 3; [1980] VR 26 at 27 and 31; Lewandowski v Lovell (1994) 11 WAR 124 at 137 and Hughes v Gales (1995) 14 WAR 434 ...". Those views were agreed with by Kennedy J (with whom White and Scott JJ were in agreement) in Nicholson v The Queen, unreported; CCA SCt of WA; Library No 980698; 7 December 1998 and in Turnbull v The Queen [2003] WASCA 80 Murray J, with whom Scott and Wheeler JJ agreed, said that they were "undoubtedly correct". (See also Hou v The Queen [2003] WASCA 241 at [20], per Malcolm CJ, Steytler and Parker JJ and R v Court [2003] WASCA 308 at [93], per Miller and McKechnie JJ.) It may consequently be accepted that the section imports a very wide range of powers for use in appropriate circumstances.

21 That said, I do not consider that recourse to those powers is needed in order to enable the Court of Criminal Appeal to annul a restitution order upon quashing a conviction. In my opinion, that power is necessarily to be implied as ancillary to the power to quash a conviction.

22 The case most often cited as regards the effect of quashing a conviction is Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220. The respondent in that case was an officer employed by the Commissioner for Railways. He was summarily convicted of larceny under s 501 of the Crimes Act 1900 (NSW). Under s 80 of the Government Railways Act 1912 (NSW) an officer convicted of a felony was deemed to have vacated his office. Because the Commissioner formed the opinion that the conviction was of a felony, the respondent was paid no salary from the date of his conviction. However, the conviction was set aside on an appeal. The respondent consequently sued the Commissioner for salary between the date of his conviction and the date upon which it was set aside, on which date he was reinstated in his employment. The Commissioner relied, in answer, upon the provisions of s 80 of the Government Railways Act 1912. The issue which ultimately arose in the High Court was that of whether the respondent was entitled to recover the unpaid salary. In answering that question in favour of the respondent the Court dealt, amongst other things, with the effect of the quashing of a conviction. Rich, Dixon, Evatt and McTiernan JJ said, at 225:

"The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio. 'The judgment reversed is the same as no judgment' (per Coleridge J, R v Drury (1849) 3 Car & K, at p 189; 175 ER at p 520)."

23 Their Honours went on, at 225, to quote, with approval, the following passage from Archbold's Criminal Pleading, Evidence and Practice, 21st ed (1893), pp 226, 227:

"... upon the reversal of a judgment against any person convicted of any offence, the judgment, execution and all former proceedings become thereby absolutely null and void. If living, he (or if dead, his heir or personal representative, as the case may be) will be entitled to be restored to all things which he may have lost by such erroneous judgment and proceedings, and shall stand in every respect as if he had never been charged with the offence in respect of which judgment was pronounced against him".

"It is true that anyone who acts in execution of a judgment may justify under it, notwithstanding its removal, reversal or annulment, for it was good when given (Alleyne v The Queen [1855] EngR 606; (1855) 5 E & B 399; 119 ER 529; Smallcombe v Olivier [1844] EngR 646; (1844) 13 M & W 77; 153 ER 32). But the consequence of the reversal of a judgment or conviction is that it is annulled and held for nothing, and the party is restored to all things which by reason of the judgment he has lost (see Archbold's Criminal Pleading, Evidence and Practice, 22nd ed (1900), p 261; R v Drury (1849) 3 Car & K 193; 175 ER 517; R v O'Keefe (1894) 15 LR (NSW) 1; 10 WN (NSW) 194; R v Lee (1895) 16 LR (NSW) 6; 11 WN (NSW) 121). The allegation in the plea that Cavanough's appeal was upheld and his conviction set aside is in substance an allegation, when the relevant statute (Justices Act 1902) is examined, that the conviction was reversed and quashed. The consequence was that his conviction was obliterated, and, to use the language of the old forms, 'altogether held for nothing'."

25 Cavanough has since been cited in many subsequent cases, most often in the context of civil proceedings (see, for example, Grady v The Commissioner for Railways (NSW) [1935] HCA 44; (1935) 53 CLR 229 at 234; Production Spray Painting & Panel Beating Pty Ltd v Newnham [No 2] (1992) 27 NSWLR 659 at 661; White v Tomasel [2004] QCA 89; [2004] 2 Qd R 438 at 450 [55]; Rimanic v Business Licensing Authority [2002] VSCA 64; (2002) 129 A Crim R 356 at 359 - 361 [8], [9] and [14]; MacIntosh v Lobel (1993) 30 NSWLR 441 at 459 - 460; and Battenberg v Union Club [2005] NSWSC 242 at [41]) and its authority is not in doubt.

26 When the powers of the Court of Criminal Appeal are looked at against this background, it seems to me that, in giving the Court the power to quash a conviction, the legislature must have intended that it should also have the power to annul orders made by it which depended solely upon the fact of the conviction.

27 Once it is accepted that the power exists, it seems to me inevitably to follow (as was accepted by counsel for all parties) that, given what was said in Cavanough and in the cases which have since relied upon it, the restitution orders made by the trial Judge in this case should be declared to be null and void, having been dependent upon, and having fallen with, the conviction.

28 That brings me to the question whether the Court has, through the operation of s 697 of the Code or otherwise, the second of the two powers to which I have referred, being the power, upon quashing a conviction and nullifying a restitution order, to order repayment of what was paid pursuant to the restitution order.

29 A restitution order of the kind contemplated by s 717, while provided for in the Code, is essentially a summary remedy and not a penalty. As is apparent from the terms of s 717, it may be made "whether or not any punishment is imposed on the offender for the offence" (see, now, s 110(1) of the Sentencing Act which expressly provides that a reparation order - which can be either a compensation order or a restitution order - "is in addition to and not part of the sentence imposed on an offender"). The nature of the restitution and compensation provisions of the Code was discussed by Malcolm CJ in R v Grein [1989] WAR 178 at 188, where his Honour said:

"The obvious purpose of ss 717 and 719 of the Code is to provide a simple and summary procedure to assist in the recovery of property by way of restitution, or by way of compensation for loss suffered by the victims of crime. The amendments made to these provisions in 1985 were proclaimed on 1 September 1986. The amendments appear to have been intended to enlarge the scope for the use of the summary remedy of restitution and also to provide a supplementary and statutory right of the victims of crime to obtain compensation."

30 Consequently, the making of a restitution order under s 717 is, for any practical purpose, very similar to an award of judgment in civil proceedings in which the judgment relies upon the fact of a conviction. There is no doubt that in this last category of case a civil court, upon overturning the civil judgment (perhaps because the conviction has been quashed), is entitled to order restitution of what was paid pursuant to the judgment.

31 There is a good deal of authority in civil jurisdictions establishing that, once a judgment is set aside on appeal, the successful appellant is entitled, in principle, to recover all moneys paid under the judgment that has been set aside and that the Court can make an order accordingly: The Commonwealth v McCormack [1984] HCA 57; (1984) 155 CLR 273; National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] VicRp 31; [1991] 1 VR 386 at 591 - 592, per Brooking J; TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; (1999) 48 NSWLR 381 at 382, per Handley, Beazley and Stein JJA; Meerkin & Apel v Rossett Pty Ltd (No 2) [1999] VSCA 10; [1999] 2 VR 31 at 32, per Callaway JA (with whom Charles and Batt JJA were in agreement); and Heydon v NRMA Ltd (No 2) [2001] NSWCA 445; (2001) 53 NSWLR 600 at 603, per Mason P (with whom Beazley JA and Ipp AJA were in agreement) and see also Mason and Carter: Restitution Law in Australia (1995) at [706]. There is also authority for the proposition that an order for recovery should be sought in the appeal itself: Osenton v Johnston [1942] AC 130; Central Electricity Board of Mauritius v Bata Shoe Co (Mauritius) Ltd [1983] 1 AC 105 and Production Spray Painting at 661, although it has been held that it can subsequently be granted upon motion in the appeal itself (Government Insurance Office of New South Wales v Healy [No 2] (1991) 22 NSWLR 380) and that it may be applied for in subsequent proceedings at first instance, if the respondent to a successful appeal has declined to repay what was received under the original order: Lee v Mallam (1910) 10 SR (NSW) 876 and see, generally, Mason and Carter, above, at [711] and White v Tomasel at [67].

32 The history of orders of this kind was explored at some length by Brooking J in Bond Brewing, at 593 ff. Prior to the Judicature Acts the principal means of correcting erroneous judgments was by way of a writ of error. Brooking J points out (at 593) that, where the judgment below was reversed, the plaintiff in error could have a writ of restitution (see, for example, R v Wilson [1835] EngR 847; (1835) 111 ER 624) in order that he or she might be restored to all that was lost by the judgment - that writ was available when a judgment was reversed or when it was merely set aside. In time, the writ came rarely to be used, with the successful party instead obtaining from the Court an order which was directed to the opposing party. Brooking J points out (at 594) that, in more modern statements of the power to do what is necessary to achieve justice when a decision is reversed on appeal, the notion of "restitution" or restoration remains: see, for example, Rodger v Comptoir D'Escompte de Paris [1871] EngR 3; (1871) LR 3 PC 465 at 473; Cox v Hakes (1890) 15 App Cas 506 at 547, where Lord Field (in dissent) said, in the course of an observation which was later cited with approval by the High Court in McCormack, at 276, that restitutio in integrum was the right of every successful appellant; Production Spray Painting at 661, 663; White v Tomasel at [68]; and see, generally, the article by Mr D M Gordon QC, referred to above. In Rodger, at 475, Lord Cairns observed that "... one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors". That observation has been repeated many times in this context: see, for example, McCormack at 276; and Bond Brewing at 588, 591.

33 There is no doubt, when regard is had to the cases to which I have referred, that the power to order restitution in the sense which I have described is one which, within the limits of that power (as to which see Bond Brewing at 591 - 592 and 597 - 598, per Brooking J and the article by Mr D M Gordon QC, above, at 522), may be exercised by the Supreme Court on appeals in civil matters (see ss 16 and 58(2) of the Supreme Court Act 1935 (WA) and O 63 r 10(2) of the Rules of the Supreme Court 1971 (WA) which provides for a power in the Full Court "to make such ... order as the case may require"; see also Ardrey v Bartlett [2004] WASCA 256 at [28] to [30], per Murray ACJ).

34 That being so, and given that the rationale for the existence of the power in civil proceedings is equally applicable to a case in which a restitution order has been made by a criminal Court (and executed) on the strength of a conviction which is subsequently quashed, the power, in such a case, to order repayment of what was transferred pursuant to the restitution order is, in my opinion, one of those imported by s 697. In a civil case the Full Court is doing no more than restoring what was lost by an erroneous judgment. That is precisely what a Court of Criminal Appeal might be expected to be called upon to do when quashing both a conviction and an executed restitution order which depended upon the conviction. As was said by Callaway JA (with whom Winneke P and Vincent JA were in agreement) in Rimanic at 361:

"The common law principle in Cavanough's case is fundamental to a fair system of criminal justice. A wrong has been done to the person whose conviction is quashed or set aside and that person must be restored, so far as may be, to his or her former position. ... That principle gives effect to a basic human right ...".

35 There is accordingly good reason for the power to be included amongst those imported by s 697 for use by the Court of Criminal Appeal for exercise in relation to proceedings before it where that use is considered to be "necessary or expedient in the interests of justice".

36 I should add that in my opinion there is no substance to the contention advanced by the Director of Public Prosecutions, and by counsel for Norilya in his oral submissions, that, because the powers conferred by s 697 are for the purposes of ch LXIX, and because s 717 was not in that chapter, those powers could have no bearing on orders made under that section. The power to which I have referred is plainly one which bears upon the consequences of a successful appeal against conviction. Appeals against conviction, of course, fall squarely within ch LXIX, the very purpose of which was to provide for the existence and functions of the Court of Criminal Appeal. It is important to notice, in this respect, that s 687(3) of the Code, also in ch LXIX (current at the time of the appeal), gives to the Court jurisdiction (it uses the word "power"), for the purposes of and subject to the provisions of ch LXIX, "to determine ... any questions necessary to be determined for the purpose of doing justice in the case before the Court".

37 That brings me to the question whether the Court has a discretion to exercise the power.

38 Restitution, in this context, is sometimes described as "the right" of the successful appellant (see Lord Field in Cox v Hakes at 547, McCormack at 276, Rimanic at 361 [14] and Mason and Carter at [706]) or as his or her entitlement: see Rimanic at 360 [10] and Production Spray Painting at 663 (where the Court said at 662 that, in a case of the kind there under consideration an order for restitution followed "as of course" from the quashing of the orders made at first instance). In Haig v The Minister Administering the National Parks and Wildlife Act 1974 (No 3) (1996) 90 LGERA 408, Handley JA (with whom Priestley and Clarke JJA agreed) spoke of the successful appellant in a case such as that (a successful cross-appeal against the amount of compensation assessed by the Land and Environment Court and paid by the cross-appellant) as being "entitled as of right" to restitution of any amounts overpaid pursuant to the judgment reversed. The unsuccessful party had submitted arguments on discretionary grounds why a refund should not be ordered, but the Court held that it had "no general discretion to exercise in a case such as this". In BHP Steel (JLA) Pty Ltd v Khan (No 2) [2001] NSWCA 269 at [5] Giles and Hodgson JJA said that a successful appellant "is entitled to recover all monies paid under the judgment that has been set aside" and that the "entitlement is as of right, not as a matter of discretion". Similarly in Krishna v Loustos (No 2) [2001] NSWCA 99 at [4] Spigelman CJ, Mason P and Handley JA said that the claimant was "entitled to restitution as of right following the reversal of the judgments against him".

39 It is consequently plain enough that, in the civil jurisdiction, restitution follows as of course. However, if I am right in my conclusion that the Court of Criminal Appeal is given the power to order restitution by s 697, then it follows, from the opening words of that section, that the power should only be exercised if the Court thinks it "necessary or expedient in the interests of justice". That said, given the weight of authority over many years as regards what is necessary or expedient in the interests of justice in this context, it must be accepted that, at least in the ordinary case, restitution will be ordered. Were the position otherwise, the successful appellant would not be restored to what he or she had lost as a result of the erroneous conviction.

40 I should say, in this regard, that I am unable to accept the contention advanced on behalf of Norilya that it is for the applicants to establish that Norilya has been unjustly enriched before any relief is afforded to them. That contention misunderstands the nature and purpose of the restitutionary right. It is essentially an application of the principle of restitution in integrum in order to avoid an injury which would otherwise be brought about by the Court's own erroneous act (although Mason and Carter suggest, at [701], that "Public policy in encouraging submission to law and the unjust enrichment principle converge in requiring the temporarily successful litigant to disgorge the (ultimately) unjust enrichment of the fruits of a judgment that is later set aside").

41 Also, the fact that Norilya contends that it is entitled, under the civil law, to the money which it has received does not, of itself, make this an unusual case. There have been many such cases. So, for example, in Production Spray Painting the opponents resisted the application for restitution on a number of grounds, including asserted counterclaims for fraud or deceptive conduct. The Court, after saying (at 662) that it had no discretion to withhold relief, went on to say (at 662 - 663):

"The jurisdiction of a court exercising appellate or supervisory jurisdiction to order restitution in favour of the successful litigant is necessarily of a summary nature, and is inherently unsuitable for the determination of disputed questions of fact or the trial of cross-claims. In any event the trial of cross-claims would involve the exercise of original jurisdiction. So much was decided in R v Jones the full report of which reads:

'A conviction of forcible entry was quashed for the old exception of mesuagium sive tenementum; but the restitution was opposed, on an affidavit that the party's title (which was by lease) was expired since the conviction. The Court said, they had no discretionary power in the case, but were bound to award restitution on quashing the conviction.'

This case was followed in R v Wilson (at 838; 632) where the Court of Kings Bench said:

'A writ of re-restitution is prayed, ... On looking into the authorities, we find that the Court has been in the habit of awarding that writ, when it has quashed the conviction for forcible entry; otherwise the whole proceeding here would be nugatory. ...

It has been said that the Court will not do this unless the party unlawfully dispossessed should appear to have title to the premises, - a most inconvenient inquiry upon affidavit ... But in Rex v Jones ... the Court declared, even where the conviction was quashed for a merely technical error, and the lease of the dispossessed person had expired during the litigation, "That they had no discretionary power in the case, but were bound to award restitution on quashing the conviction".'"

42 If this Court was to permit a person to rely upon an erroneously entered judgment as a basis for retaining disputed money which it would not otherwise have held, it would be giving to that person a significant advantage (and giving to the successful appellant a significant disadvantage) which it would not have had were it not for the Court's own error. Also, it should not be overlooked that, as was said in Production Spray Painting at 622 (and also by Mason and Carter at [711]), the power to order repayment of what was mistakenly ordered to be paid is necessarily one in the exercise of a summary jurisdiction, inherently unsuitable for the determination of disputed questions of fact. When the party which is required by an appellate court to repay money upon the quashing of an executed restitution order asserts an entitlement to that money, there is always the opportunity for it afterwards to assert that entitlement in a civil court, by seeking to recover what it must repay. It may also there take such steps as might be thought necessary to protect its position in the interim.

43 Some reliance was placed by counsel for Norilya on the fact that Norilya has a civil judgment in its favour against the applicants. In 1990 Norilya commenced civil proceedings against the applicants. In its statement of claim it alleged that, by a deed dated 1 June 1990, a company, Acarus Pty Ltd ("Acarus"), acquired from the applicants an option (the Acarus option) to purchase mining tenements then held by the applicants for a sum of $6,000,000 and that, by a second deed dated 8 June 1990 made between Norilya and Acarus, Acarus granted to Norilya an option ("the Norilya option") to purchase a 30 per cent interest in the tenements for $6,000,000. Norilya went on to plead that various fraudulent misrepresentations were made by the applicants which, it alleged, were intended to induce it, and did induce it, to enter into the Norilya option and then to exercise, on 9 July 1990, the Acarus option on behalf of Acarus and the Norilya option on its own behalf. It also pleaded that, in satisfaction of its obligations to Acarus under the Norilya option, and of those owed by Acarus to the applicants under the Acarus option, it paid (also on 9 July 1990) the sum of $6,000,000 and interest of $13,808.21 to the applicants. It pleaded that the interest in the tenements so acquired by it was worthless and that, as a result, it had suffered damage in the sum of $6,013,808.21 and consequential loss.

44 The conduct alleged against the applicants in Norilya's statement of claim encompassed that which led to the criminal charges of which they were subsequently convicted. By an amendment made to the statement of claim in August 1993, after the applicants had been convicted, Norilya pleaded the various counts upon which the applicants were convicted as well as the fact of their conviction on those counts. It then applied for summary judgment under the provisions of O 14 r 3 of the Rules of the Supreme Court, upon the basis that the issues in the criminal proceedings were identical to those in the civil action (par 3.7 of its written outline of submissions dated 2 August 1994 in support of its application for summary judgment). It contended also (par 3.12) that the actual amount of its loss and damage had "yet to crystallise" and would "depend on the amount recovered pursuant to the orders for restitution" made on 30 July 1993. The Court accepted Norilya's contentions and, by order dated 18 August 1994, entered judgment against the applicants in favour of Norilya for damages to be assessed.

45 While the judgment in the civil proceedings plainly relied upon the applicants' convictions, nothing has, as yet, been done to set it aside. It is important, in this context, to draw a distinction between what were described by Rich, Dixon, Evatt and McTiernan JJ in Cavanough, at 225, as "collateral acts executory" and "collateral acts executed". Their Honours said:

"Acts done according to the exigency of a judicial order afterwards reversed are protected: they are 'acts done in the execution of justice, which are compulsive' (Dr Drury's Case (1610) 8 Co. Rep., at p. 143 a; 77 E.R., at p. 691). And proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided. For 'collateral acts executory are barred, but not collateral acts executed' (Dr. Drury's Case ...)."

46 Similarly, in MacIntosh v Lobel at 459, Kirby P (as he then was) mentioned that "acts done according to the exigency of a judicial order, afterwards reversed, are protected". He went on to say (at 459 - 460), as regards orders of a superior court, that proceedings which are based upon a judgment, later reversed, and which are brought to completion before its reversal are not thereby avoided. (See also Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13; (1981) 145 CLR 590 at 603 and Battenberg v Union Club, above, at [49] and [52].)

47 Consequently, the judgment which Norilya has obtained in the civil proceedings stands, unless and until it is set aside. However, because the judgment is merely one for damages to be assessed, and no damages have as yet been assessed, it is at least arguable that this, of itself, should not be a bar to the making of a restitution order in this case. A refusal to exercise the power to which I have referred would still have the result that Norilya would have the benefit of payment, as a result of an order which was made in error and which has since been nullified, in circumstances in which it has never proved its entitlement to the amount paid to it in any civil proceedings. In Antoniadis, referred to earlier in these reasons, the fact that a new trial was ordered after an appeal against the judgment given at first instance had succeeded (leaving open the possibility that the same amount of damages might be awarded) did not alter the Court's opinion that it was bound to make orders for restitution (pages 383 and 384). That case was applied in Caldwell v Hill [2000] NSWCA 239 in circumstances in which a new trial was ordered as regards an assessment of damages only. The Court (Mason P and Meagher and Giles JJA) said, at [56], that Antoniadis could not be distinguished merely on this basis. Similarly, in Khan, where an order for a new trial was limited to the issue of damages, the Court (Giles and Hodgson JJA) held that this did not matter, as regards the issue of restitution. Their Honours said (at [7]) that, until an amount was ascertained, the respondent had no existing right to retain the sum of $250,000 originally awarded and paid to him. They went on to say:

"Depending on the amount ascertained, he may never have a right to the full $250,000, but that is beside the point. He does not now have a right to any of the $250,000."

48 Notwithstanding that some submissions were addressed to us on this question whether the Court should, or should not, exercise the discretion, if it existed, that question was not one of those ordered to be answered on a preliminary basis. It consequently seems to me to be necessary to afford to the parties an opportunity to make any further submissions which they might think necessary before any final conclusion is expressed in respect of it.

49 I would accordingly do no more than answer the three extant questions posed to the Court as follows:

(1) The restitution orders made on 30 July 1993 should be declared to be null and void.

(2) The Court has power to order repayment to the applicants of what was paid by them by way of restitution, with interest (there was no dispute as regards the applicants' entitlement to interest, if repayment could be ordered, although the question was left open whether compound interest might be ordered).

(3) The power to make the order referred to in (2) above is discretionary, to the extent provided for by s 697 of the Code.

50 I would hear submissions from the parties as regards what further orders or directions should now be made in the light of these conclusions.

51 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Steytler J. I agree with those reasons and have nothing to add.

52 ROBERTS-SMITH J: I have read the draft reasons prepared by Steytler J. I agree with those reasons and have nothing to add.

• Issues (1) and (2) - The power to annul restitution orders and the question whether repayment can be ordered
• Issue (3) - Is the power discretionary?