Supreme Court of WA|2002-01-11|Before: Pullin J

Re Skaljac; Ex Parte Director of Public Prosecutions for Western Australia [2002] WASC 7 (11 January 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE SKALJAC; EX PARTE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2002] WASC 7

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Criminal law - Particular offences - Drug offences - Freezing order under the Criminal Property Confiscation Act 2000 - Whether substituted service may be ordered

1 PULLIN J: Mr Skaljac was charged with an offence under s 6(1)(a) of the Misuse of Drugs Act. Under s 32A he is liable to be declared a drug trafficker. Freezing notices have been issued under s 34 of the Criminal Property Confiscation Act concerning the property, the subject of this application, and by s 50 and s 51 of that Act dealing with the goods specified in the freezing notices is prohibited, and that will be so if a freezing order is made by me.

2 There is an automatic confiscation provision under s 7 of the Criminal Property Confiscation Act if objection is not filed within 48 days after the service cut-off date. A freezing notice needs to be served on an interested party, and that recipient is then required to file a statutory declaration and then 28 days later confiscation occurs. The problem here is that it has not been possible to serve Mr Skaljac so there is no service cut-off date. Multiple applications are permitted, see s 133 of the Criminal Property Confiscation Act. A freezing order application is now made under s 43, see s 43 (5),(6) and (7) and see s 5(3).

3 I am satisfied on the information made that orders should be made as proposed in the two minutes which have been provided to me so that there will be freezing orders in terms of those minutes. Normally no further order would be necessary because s 46 of the Criminal Property Confiscation Act requires personal service on certain persons who are nominated in s 46. The problem is Mr Skaljac cannot be found, and it is anticipated from the evidence that he will not be found and it will not be possible to serve him with the freezing order.

4 As a result, the applicant seeks to rely upon the provisions allowing for substituted service under O 72 r 4 of the Supreme Court Rules, but I have decided that substituted service cannot be ordered. Order 72 r 4 reads:

"Where by these Rules personal service of a document is required and it appears to the Court that personal service of such document on a person required to be served is impracticable, the Court may order that the document be served on that person by substituted service."

5 The requirement for service of the freezing order is not found in the Supreme Court Rules. It is found in s 46 of the Criminal Property Confiscation Act and, as a result, it is my view that O 72 r 4 cannot be availed of to effect service. I was provided with a copy of the explanatory memorandum in relation to the Criminal Property Confiscation Bill, which suggested that the draftsman considered substituted service might be ordered in these circumstances, but in my view the provisions of the Supreme Court Rules which I have mentioned are clear, and the power is limited under that rule. As a result, I will not make any order for substituted service as asked by the applicant.

Property Confiscation Act 2000

Re Skaljac; Ex Parte Director of Public Prosecutions for Western Australia [2002] WASC 7 (11 January 2002)

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Re Skaljac; Ex Parte Director of Public Prosecutions for Western Australia [2002] WASC 7 (11 January 2002)

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