Plaintiff v First Defendant

Supreme Court of Victoria|2005-12-13|Before: GILLARD J

Judicial review - County Court restraining orders made under Confiscation Act 1997 - Form of order - Whether order can be made against named person and named company - Court has jurisdiction to make orders - Court not obliged when making order to provide for living expenses - No error of law - Meaning of special circumstance in Rule 56.02(3) of Supreme Court Rules.

"2. Pursuant to s.18 of the Confiscation Act 1997 that the respondents Antonius Sajih Mokbel and Sajih Pty Ltd be restrained whether by themselves or by their servants, agents or otherwise from disposing of or in any way dealing with:

(e) 163 Boronia Road, Boronia in the state of Victoria and more particularly described in Certificate of Title Volume 9431 Folio 813 and Volume 9431 Folio 814.

(f) 28 The Grove, Coburg in the State of Victoria and more particularly described in Certificate of Title Volume 6464 Folio 648.

(g) Moneys in National Australia Bank account No. 083 674 66114 5135."

6 Paragraph 1 made a restraining order in similar terms against the plaintiff, and paragraphs 3, 4 and 5 made restraining orders against the plaintiff and one of the respondent companies.

7 The order in paragraph 6 declared that pursuant to s.15(3)(a) of the Act that the property was restrained for one of a number of stated purposes. Finally, paragraph 7 was in these terms:

"7. Liberty to apply on reasonable written notice to the applicant."

8 I interpolate to observe that counsel for the DPP at the time of the application gave an undertaking as to damages.

9 On 22 November 2001, counsel appeared for the DPP before His Honour Judge Holt and sought and obtained a consent order pursuant to s.26(1) of the Act that the earlier orders be varied. The first four paragraphs of the consent orders were similar to the orders made on the first occasion, namely, that the plaintiff and one of his companies were restrained from dealing with certain property. It is noted on this application that in addition to the four companies joined on the previous occasion as respondents two further companies were joined, namely, Finch Field Holdings Pty Ltd and Half Glass Hotel Pty Ltd. The orders went on to provide for the sale of some properties.

10 On 7 February 2002, a further order was made by His Honour Judge Holt varying his earlier order.

11 On 7 March 2002, a further variation was made to the orders pursuant to s.26(1) by His Honour Judge Holt. This order allowed a company called the Brunswick Market Pty Ltd, one of the first respondents, to enter into a lease. On 5 March 2004 His Honour Judge Fagan made a variation order by consent. Finally, on 15 February 2005, further consent orders were made by His Honour Judge McInerney varying the earlier orders.

Judicial Review

12 On 19 October 2005, the plaintiff instituted the proceeding in this Court seeking orders that the restraining orders made by His Honour Judge Holt on 24 August 2001 including the variations be quashed on the grounds that they were void and of no effect by reason of jurisdictional error. A declaration was sought to the same effect. With respect to the first prayer for relief, the contention is that the Act does not authorise a Court in making a restraining order to restrain an individual and that the confiscation order must restrain dealing with specified property. The second ground of relief was that His Honour Judge Holt on 24 August 2001 erred in that his order failed to provide for reasonable living or business expenses of the plaintiff.

13 Confiscation orders have been made pursuant to s.18 of the Act on many occasions by both this Court and the County Court. They followed a particular form. The application named respondents being the person accused of an offence, namely, a defendant within the meaning of the Act, and others who may have an interest in property under the control of that defendant. The orders made by His Honour Judge Holt were in a form that were commonly made and no query was raised as to whether or not the Court had jurisdiction to make the orders restraining a named individual or a named company from dealing with property.

14 On 19 September 2005, an application was made to this Court by the DPP for a restraining order against a bank account held in the name of Mr Amidio Navaroli pursuant to s.18. Mr Navaroli was joined as a party, as was the plaintiff. The plaintiff was the person charged with Schedule 2 offences and was the defendant within the meaning of the Act. An earlier order had been made by Whelan J but it appeared that the material filed in support of the application was not in accordance with the provisions of the Act. Hence the order was voidable. The DPP made a new application and it came on before me. Mr Navaroli was represented and sought leave through counsel to be heard on the application. I refused that application. See DPP v Navaroli and anor.[1] My orders have been appealed.

15 In the course of discussing the provisions of the Act, I made a number of observations about the application, the joinder of parties and whether an order could be made against an individual. I observed obiter that I had doubts whether the order made by Whelan J was correct in that it sought to deal with an individual rather than property.[2] I stated the following:[3]

"I repeat that the order is made in respect of property. It is not made against a particular person. There is nothing in the Act or Rules of Court requiring that the application should name a person as a party to it. By reason of s.19(1) the applicant must give written notice of a making of the order to any person if it is made 'in respect of property of a person'. As stated, the present application names Messrs Mokbel and Navaroli as respondents and in my view that was incorrect."

16 There is nothing in the Act which deals with the joinder of parties to the application. However, the rules made by this Court, namely, the Supreme Court (Criminal Procedure) Rules 1998, deal with an application under the Act. The rules are in Chapter 6 of the Rules of Court. Order 6 deals with confiscation of property and proceeds of crime. Rule 6.02(1) relates to a proceeding in this Court and provides that an application for a restraining order under the Act shall be in Form 6-6A with any necessary modification. If one goes to Form 6-6A it is clear on the face of the document that it is not expected that any person having an interest in the property is made a party to the proceeding. The County Court does not have any rules but I was informed by counsel for the DPP that they were in the process of being passed in the same form as the Supreme Court Rules. Further, it is clear from the Act itself that an application can be made ex parte and it usually is.[4]

17 The observations I made concerning the joinder of parties and the form of orders have led to the present application. It is submitted that there is no jurisdictional power in a court making an order under s.18 of the Act to restrain a named individual or a named company from disposing or otherwise dealing with property.

18 Counsel for the DPP, the Hon Mr J. Kennan SC and Ms De Ferrari, submit that the Court does have jurisdiction to make such an order under the Act, and further, rely upon a number of grounds against relief being granted by this Court. They submit that the application is well out of time, leave should not be granted, there is no jurisdictional error in the form of orders, there is no jurisdictional error by failing to provide for reasonable living expenses, declaratory relief is unnecessary and finally, relief should be refused on discretionary grounds.

19 Mr Priest QC who appears with Ms Gobbo for the plaintiff submits that the County Court order and variation orders were made without jurisdiction and should be set aside.

20 This Court has jurisdiction to grant prerogative writ-type orders in respect of County Court orders. See The King v Foster ex parte Isaacs,[5] The Queen v Judge Dutton Briant ex parte Abbey National Building Society.[6] The common law jurisdiction of this Court to review orders of inferior courts is subject to the procedure set out in Order 56 of the Rules of Court. The jurisdiction of this Court to review orders of inferior courts and tribunals is limited. The jurisdiction is supervisory and does not entitle the Court to canvass matters that it would on an appeal. The Court is exercising its common law jurisdiction and it is different to an appeal. An appeal is a creature of statute. See Fox v Percy.[7]

21 The judicial review procedure is concerned with jurisdiction and the legality of what was done by a court or tribunal, and is not concerned with the merits of the decision under review. This is to be contrasted with an appeal. The question on a judicial review is whether the decision or orders were made with jurisdiction and in accordance with the law. Importantly, it is emphasised that a judicial review is not concerned with whether the decision was fair or correct.

22 Order 56 is concerned with procedure. It abolishes all remedies in the nature of the old prerogative writs, but nevertheless preserves the jurisdiction of the Court to make prerogative writ-type orders. It is clear that the rules do not affect the common law jurisdiction of this Court, and it is equally clear that this Court has jurisdiction to make an order in the form similar to the old prerogative writ of certiorari in quashing a decision or order under review.

23 There is a time limit on bringing a judicial review. A proceeding must be commenced within 60 days after the date when the grounds first arose. However, Rule 56.02(3) provides:

"(3) The Court shall not extend the time fixed by paragraph (1) except in special circumstances."

24 It is contended on behalf of counsel for the DPP that no special circumstances have been proven. I will return to this issue later.

25 The scope of the jurisdiction was discussed by the High Court in Craig v South Australia.[8] After observing that certiorari is a process by which a superior court in the exercise of its original jurisdiction supervises the acts of an inferior court, the Court stated that it is not an appellate procedure and where the writ runs it enables the quashing of an impugned order upon one or more of a number of grounds, namely, "Most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record". Where relief is sought on the ground of error of law on the face of the record the superior court is restricted to the record of the inferior court.

26 What this original jurisdiction is concerned with is whether there has been error, that is, jurisdictional error or an error in the decision making process. This Court is concerned with the legal correctness of the decision making process leading to the making of the orders impugned.

27 In my opinion, the real issue in this present application is whether or not the County Court had jurisdiction to make the orders that it made. It is convenient to deal with that question first.

28 The first order was made by His Honour Judge Holt on 24 August 2001. It was made ex parte. Part 2 of the Act deals with restraining orders and has been amended a number of times since that date. Accordingly it is necessary to consider the law that applied as at 24 August 2001.

Was there jurisdictional error in the form of orders?

29 The jurisdiction of a court to make an order under the Act is given to the Court by the Act. "Court" is defined as meaning this Court or the County Court and subject to s.12 a Magistrates' Court or Children's Court. Section 12(8) specifically provides that the County Court has jurisdiction under the Act to make "any order irrespective of the value of the property". The County Court is an inferior court, that is, a Court created by statute, and its jurisdiction and powers are to be found within the four corners of the Act that created it. In addition to its express powers, subject to any contrary intention, the jurisdiction includes all procedures necessary to properly perform its jurisdiction. In addition to the express powers there would of course be implied powers, which are incidental and necessary in order for the Court to perform its jurisdiction. The Court is given jurisdiction by reason of s.36 of the County Court Act 1958 to "hear and determine every proceeding in respect of which jurisdiction is conferred upon it by this or any other Act ... ". Because the jurisdiction is given to a court by statute, the jurisdiction and its extent must be found within the four corners of the Act. If an order is made which is not authorised by the Act, then it is outside the jurisdiction of the Court. In other words, it is made ultra vires. In construing the Act and the jurisdiction and powers, the Court is concerned primarily with express jurisdictional powers but there may be in the context of the Act implied jurisdiction or powers.

30 The scheme of Part 2, when read in the context of the Act, leads to the conclusion that restraining orders are made in respect to property or interest in a property and not made against a particular person. On the other hand the power to make an order arises because a person has been, or within a period of 48 hours will be, charged or has been convicted of a particular offence. A person who is charged or is to be charged or has been convicted is defined as "the defendant".[9]

31 Section 3 defines "the defendant" in relation to an offence and means a person who has been or will be charged or has been convicted of an offence, and in respect of whom an application is made under the Act.

32 The issue that has to be addressed in this review is whether or not the Act gives jurisdiction to a court to make a restraining order that restrains the defendant or a company from dealing with identified property. Clearly "the defendant" within the meaning of the Act in the applications before His Honour Judge Holt and Judge McInerney is the plaintiff in this present proceeding. He is the person who has been charged with the relevant offences.

33 It is the contention of Mr Priest on behalf of the plaintiff that the scheme of Part 2, when read in the context of the whole Act, is aimed at restraining property and not a named individual. He referred to various provisions in Part 2.

34 First of all he referred to the definition of restraining orders. The definition section, Section 3, defines a restraining order as meaning "an order made under s.18". Section 18 empowers the Court to make a restraining order when application is made under s.16(1). Section 14(1) provides:

"1. A restraining order is an order that no property or interest in property, that is property or an interest to which the order applies, is to be disposed of, or otherwise dealt with by any person except in the manner and circumstances (if any) specified in the order."

35 Mr Priest submitted that that is the definition of "a restraining order", and that a restraining order identifies property, or an interest therein, which is not to be disposed of or dealt with by any person.

36 The phrase "by any person" covers the world at large and is not in any way confined or limited. Mr Priest referred to s.20(1) which gives the right to any person claiming an interest in the property, including the defendant within the meaning of the Act, to apply to the Court for an order under ss.21, 22 or 24. He submitted that the order should be made against dealing with identified property or an interest therein, and that the Act allows any person who is affected by the order to be excluded from its operation. He referred to s.14(2) which relevantly provides:

"(2) If a provision of this Act confers a power to apply for a restraining order in respect of property in which a person has an interest ... "

37 The following paragraphs then go on to refer to "specified property", and "all the property of the person". Throughout s.14, the reference to a restraining order is in the context of the restraining order concerning property. Section 15 deals with the purposes for which a restraining order may be made and relevantly commences:

"15. Purposes for which a restraining order may be made

(1) A restraining order may be made to preserve property in order that the property will be available for any one or more of the following purposes - ".

38 Section 15(3) relevantly provides:

"3. If a court makes a restraining order in respect of property or an interest in property -

(a) the Court must state in the order the purpose for which the property or interest is restrained; and

(b) if the Court excludes property or an interest in property from the order in respect of a purpose, the Court must state in the order whether the property or interest remains restrained for any other purpose and, if so, state that other purpose."

39 Section 16 deals with the application for the restraining order. The applicant has to prove that a person has been or will be charged with or has been convicted of a certain offence.

40 Section 16 authorises the DPP or a prescribed person to make the application without notice and concludes:

"For a restraining order in respect of property in which the defendant has an interest or which is tainted property."

41 Section 16(4) deals with the affidavit material in support of the application and the matters that must be established. One of the things that must be established is that the defendant has an interest in the property or that the property is tainted property. The latter is defined by s.3 as meaning, inter alia, property used in connection with the commission of the offence, or property that was derived or substantially derived, by any person from the commission of the offence.

42 Invariably the applications are made ex parte. Section 18 deals with the obligation of the Court to make a restraining order if it is satisfied of certain matters. Section 19 obliges the applicant to give to "that person" written notice of the making of the order in respect of property of "a person". Under s.17(1) the Court may require an applicant to give notice of the application to any person "whom the Court has reason to believe has an interest in the property that is the subject of the application." If notice is given that person is entitled to appear and give evidence. Section 20 deals with the right of a person claiming an interest in the property including the defendant to apply to a court to be excluded from the effect of the order. It is pertinent to observe the terms of sub-section (1) which makes clear that the order is against property. It reads -

"20. Application for exclusion from restraining order

(1) If a court makes a restraining order against property under s.18, any person claiming an interest in the property (including the defendant) may apply to that court for an order under s.21, 22 or 24."

43 Section 21 provides for the determination of an exclusion application, and if the Court is satisfied that the property in question is "not tainted property" and will not be required to satisfy any purpose for which the order was made, "the Court may make an order excluding the property from the operation of the restraining order." (Emphasis added).

44 Mr Priest submits that a consideration of the provisions of Part 2 makes it clear that the order must be an order which restrains dealing with identified property. The legislative scheme is that the order operates against the dealing or disposal of the property by any person. If a person has an interest in the property and wishes to have the property excluded then the right is given to the person to apply for an exclusion order.

45 Mr Priest submitted that on the face of the orders made on 24 August 2001, the orders are expressed to restrain the plaintiff, Mr Mokbel, and a number of companies. He submitted that the order should have restrained dealing with the property by any person. He further submitted that a proper order should have been in the following terms:

"The Court orders -

that property (identified) or an interest in that property is not to be disposed of or otherwise dealt with by any person."

46 Mr Kennan submitted that an order naming a particular individual or a company and restraining that individual or company from dealing with identified property, is not made without jurisdiction. Of course "any person" would, unless there was a contrary intention, include a company. See Interpretation of Legislation Act 1984 s.38. He also emphasised the width of the provisions of s.14(6), which empowers the Court to order that a restraining order be made subject "to any conditions that the Court thinks fit".

47 There is no doubt that the way the orders have been framed is that they seek to restrain Mr Mokbel, as a defendant within the meaning of the Act, and a named company. I assume that the evidence placed before the County Court judges revealed that Mr Mokbel had an interest in the property. The orders define the particular property. The question is whether an order can be made which restrains a particular individual or a company from dealing with identified property.

48 In my opinion, it can.

49 The paragraphs of the various orders made by the County Court judges identified property. That is an essential element of a restraining order made under the Act. It follows that an essential ingredient of the restraining order is satisfied. An order that followed the wording of s.14(1) would state that identified property is not to be disposed of or otherwise dealt with, and would conclude by stating, "by any person". The phrase "by any person" involves the world at large but it must follow that the order could be confined to named individuals. The greater must include the lesser. Both Mr Mokbel and a company answer the description "any person". In my opinion, the Court does have jurisdiction to make an order restraining identified property being dealt with by a named individual. The point can be illustrated and confirmed by re-arranging paragraph 2 of the orders made by His Honour Judge Holt on 24 August 2001 and set out above in paragraph 5 as follows:

"2. Pursuant to s.18 of the Confiscation Act 1997 the property or an interest therein namely

(e) 163 Boronia Road Boronia ...

(f) 28 The Grove Coburg ...

(g) moneys in National Australia Bank ...

shall not be disposed of or otherwise dealt with by Antonius Sajih Mokbel and Sajih Pty Ltd."

50 In my opinion, the Court does have jurisdiction to make an order in those terms, namely, identifying the particular property in question and restraining a named individual or company from dealing with it.

51 It follows that the Court did have jurisdiction to make the orders which were made by the County Court, commencing with the orders made by His Honour Judge Holt on 24 August 2001 and varied by His Honour and their Honours Judges Fagan and McInerney.

52 It follows that this ground is not made out.

Failure to provide for reasonable living expenses and reasonable business expenses

53 It is asserted in the originating motion that His Honour Judge Holt on 24 August 2001 erred by failing to provide for reasonable living expenses and business expenses of the plaintiff and this constituted jurisdictional error.

54 As stated, the original application was ex parte. This is the usual practice. Section 14(4) provides:

"(4) A restraining order may, at the time it is made or at a later time, provide for meeting -

(a) the reasonable living expenses (including the reasonable living expenses of any dependents); and

(b) reasonable business expenses -

of any person to whose property the order applies if the court that makes or made the order is satisfied that these expenses cannot be met from the unrestrained property or income of the person."

55 Whether or not a court would make an order at the time a restraining order is made is a matter of discretion. The sub-section authorises an application being made at a later time. It would have been open to the plaintiff to have made an application at any time to provide those expenses. He has never made an application for reasonable living or business expenses. Some of the variation orders were made for business reasons. In my opinion, there is no evidence of error on the part of the learned judge. It is difficult to see on what basis the Court would make an order on the application in the absence of any evidence. Once a restraining order is made notice is given to those affected by it. It would be open within a very short time for application to be made to deal with living and business expenses. In my experience, the DPP is fairly co-operative in agreeing to consent orders in relation to varying restraining orders. In my opinion, there is no evidence suggesting that in the decision making process his Honour erred. This ground has no substance and it fails.

Other grounds in opposition

56 In light of my conclusions, namely, that there is no evidence that His Honour Judge Holt or their Honours Judges Fagan and McInerney erred in law in making the orders they did, the originating motion must be dismissed. It becomes unnecessary for me to address the other matters raised by the DPP. It was submitted that in any event because it has taken so long to bring this application, leave should not be granted to bring the application. It was submitted that Rule 56.02 required "special circumstances" to be shown for extending time.

57 The phrase "special circumstances" has been discussed in a number of cases. I refer to Denysenko v Dessau,[10] Lovejoy v Myer Stores Ltd,[11] Lednar v Magistrates' Court,[12] and more recently, Arnold Mann v Medical Practitioners Board of Victoria.[13] In the Lednar case, I opined that there may be any number of different factors to be taken into account in determining whether "special circumstances" have been established. I respectfully agree with Osborn J in the Mann case at paragraph 18 where his Honour said:

"It is not, in my view, appropriate to seek to judicially define the meaning of the phrase 'special circumstances' in the relevant rule. The phrase is deliberately flexible and designed to encompass cases which might not easily be anticipated by more prescriptive words."

58 It is unnecessary for me to say any more in relation to that aspect.

59 Finally, counsel for the DPP submitted that relief in any event should be refused on discretionary grounds. In light of my conclusions it is unnecessary to deal with this question.

Conclusion

60 In my opinion, it is not established that the orders made by the County Court were made without jurisdiction. The plaintiff has not established that the learned judges erred in their decision making process. It follows that the proceeding must be dismissed. Subject to any submissions by counsel, I propose to order that the proceeding be dismissed.

Supreme Court (Criminal Procedure) Rules 1998

At a glance

Court

Decision date

Before

Source

Judgment (37 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)