Supreme Court of WA|2003-09-26|Before: Barker J

The Director of Public Prosecutions for Western Australia v Mansfield & Ors [2003] WASC 186 (26 September 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- MANSFIELD & ORS [2003] WASC 186

BETWEEN : THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

FITZROY ALL PTY LTD as trustee for the FA TRUST (ACN 093 308 724)

Application of respondent and first objectors to strike out freezing order and application for criminal benefits declaration against respondent made under Criminal Property Confiscation Act 2000 (WA) - Whether "inherent jurisdiction" or power of Court to dismiss civil proceedings in the Court for want of prosecution or abuse of process apply to "civil proceedings" under the Confiscation Act - Whether, if Court has inherent jurisdiction or power to strike out for want of prosecution or abuse of process, freezing order and application for criminal benefits declaration should be struck out - Whether applicant Director of Public Prosecutions guilty of "intentional and contumelious delay" in relation to prosecution of application for criminal benefits declaration against respondent - Whether applicant Director of Public Prosecutions obtaining of freezing order and taking out of application for criminal benefits declaration against respondent constitutes abuse of process - Relevance of contemporaneous investigation by former National Crime Authority and Australian Crime Commission in respect of activities of respondent to freezing order obtained by and application for criminal benefits declaration taken out by applicant Director of Public Prosecutions

Rules of the Supreme Court 1971 (WA), O 1 rr 4A and B and O 29

Respondent to the Objectors : State Director of Public Prosecutions

Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349

Levi v Stirling Brass Founders Pty Ltd, unreported; FCt SCt of WA; Library No 970209; 9 May 1997

Re Skaljac; Ex parte Director of Public Prosecutions for Western Australia [2002] WASC 7

State Transport Authority v Apex Quarries Ltd [1988] VicRp 26; [1988] VR 187

1 Before me is an application by Nigel Cunningham Mansfield and Rosalind Jane Mansfield (Mr and Mrs Mansfield), the first objectors, for an order that a freezing order made 12 July 2002 pursuant to the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act) and an application by the Director of Public Prosecutions for Western Australia (DPP), the applicant in the main proceedings for a criminal benefits declaration against Mr Mansfield, be set aside on the ground of want of prosecution or, in the alternative, be stayed as an abuse of the process of the court; and that, further, there be a mandatory injunction preventing the DPP from applying for any further freezing notice in relation to the property the subject of the freezing order.

2 When this application came on for hearing, I also dealt with an ancillary application by the DPP for an order to amend the description of the respondents (namely, Nigel Cunningham Mansfield and Rosalind Jane Mansfield respectively) in the heading of these proceedings by deleting reference to "Rosalind Jane Mansfield". I made an order in those terms.

3 On 12 July 2002, McKechnie J made the freezing order under the Confiscation Act on the ex parte application of the DPP against certain property alleged by the DPP to be owned or effectively controlled by Mr Mansfield. A copy of the freezing order is annexed to these reasons.

4 The Court may make a freezing order under the Confiscation Act if, amongst other things, an application has been made against the person concerned for a criminal benefits declaration, or the DPP advises the Court that such an application is likely to be made within 21 days after the freezing order is made: s 43(3)(b) and (c). In this case, the ex parte application for the freezing order was made by way of notice of originating motion for a freezing order and examination order filed 11 July 2002. An examination order may be made under s 58 of the Confiscation Act.

5 On 12 July 2002, an application for a criminal benefits declaration against Mr Mansfield was taken out by the DPP pursuant to s 15 of the Confiscation Act and filed in the court. Thus, when the freezing order was made on 12 July 2002, the Court had been advised that the application for a criminal benefits declaration against Mr Mansfield was imminent. That this was so is reflected in the terms of the freezing order. The second of two grounds stated in the freezing order is that an application against Mr Mansfield for a criminal benefits declaration is likely to be made within 21 days in relation to the property the subject of the order.

6 It may be noted in passing that the freezing order was apparently also made on the first ground expressed in the order, that an application for an order for examination had been made in relation to the property. Section 43(3)(b) of the Confiscation Act is referred to in the order as sustaining this ground. However, as far as I can see, nothing in s 43(3)(b) permits the Court to make a freezing order on the ground that an application has been made for an order for examination. However, nothing turns on this observation. No party has challenged the validity of the freezing order granted on 12 July 2002.

7 The DPP's application against Mr Mansfield for a criminal benefits declaration filed on 12 July 2002 was made returnable before the Court on 27 August 2002. The application seeks the following relief, amongst other relief:

"1. A declaration pursuant to section 15(1) of the Act;

(a) that Nigel Cunningham Mansfield has acquired a criminal benefit; and

(b) specifying pursuant to section 18(2)(b) the assessed value of the criminal benefit."

8 Prior to the return of the DPP's application for a criminal benefits declaration against Mr Mansfield, the freezing order was served personally upon Mr Mansfield and his wife Mrs Mansfield at 18 Addison Street, South Perth on the morning of Sunday, 14 July 2002. At that time, Mr and Mrs Mansfield, together with their teenage daughter, resided at 18 Addison Street, South Perth.

9 It then appears that, on or about 2 or 3 August 2002, Mrs Mansfield instructed Messrs Marks & Sands, solicitors in Perth, to act on her behalf and on behalf of Mr Mansfield in relation to the freezing order.

10 On 9 August 2002, Mr and Mrs Mansfield, by their solicitors, filed in the Court a notice of objection to the confiscation of all of the property referred to in the freezing order, as they were entitled to do pursuant to s 79(1) of the Confiscation Act. At the same time, their solicitors on their behalf filed an application by way of chamber summons seeking orders setting aside the freezing notice. That application was made returnable in the Court on 22 August 2002.

11 The freezing order was served on each of Mr and Mrs Mansfield by Christopher John Cubbage, who, at all material times, was a police officer holding the rank of detective senior constable with the Western Australia Police Service, seconded to the National Crime Authority (NCA) and later to the Australian Crime Commission (ACC)) as an Investigator. Immediately prior to the service of the freezing order on Mr and Mrs Mansfield, Mr Cubbage executed a search warrant on behalf of the NCA in respect of the premises at 18 Addison Street, South Perth. Following the execution of the search warrant and the service of the freezing order, Mr Mansfield participated in a video-recorded interview with Mr Cubbage. The interview commenced on 14 July 2002 and continued over a five-day period.

12 Mr Mansfield and Mrs Mansfield complain about the manner in which the search warrant was executed at the South Perth premises on 14 July 2002 by Mr Cubbage and Mr Mansfield further complains about the manner in which the interview conducted by Mr Cubbage in the period thereafter took place. Mr and Mrs Mansfield also make other allegations about their dealings with Mr Cubbage. I will refer to these later in these reasons. However, put shortly, Mr Mansfield says that this interview with Mr Cubbage was conducted under duress, that he was denied access to legal representation and that later he was pressured to provide information to the NCC and the ACC concerning Mr John Kizon, one of the then second objectors. Mr Cubbage denies these allegations without reservation.

13 On or about 14 August 2002, Mr Mansfield was charged with three separate offences which may be categorised as defrauding the Commonwealth, conspiracy to defraud the Commonwealth and money laundering.

14 It appears that, from the time he was so charged on 14 August 2002 until 24 October 2002, Mr Mansfield was remanded in Casuarina Prison, Western Australia, as a protected witness.

15 Also on 14 August 2002, objection proceedings pursuant to s 79 of the Confiscation Act were commenced by Mr Kizon, the Fitzroy All Trust and Eddie Dharma (the then second objectors), who claimed interests in much of the property the subject of the freezing order.

16 On 22 August 2002, Mr and Mrs Mansfield's application to set aside the freezing order, which was listed in the Court that day, was adjourned sine die with liberty to apply and with no order as to costs. Mr Gray appeared on behalf of the DPP in relation to that application. There was no appearance on behalf of the solicitors for Mr and Mrs Mansfield, whose application it was. However, Mr Gray handed to the Court a copy of a letter from Marks & Sands, the solicitors for the Mansfields, confirming that the DPP would seek orders in those terms. The letter apparently was intended to obviate the need for the solicitors to attend on the hearing of the application on that day.

17 On 27 August 2002, the DPP's application for a criminal benefits declaration, which was listed in the Court on that day, was also adjourned sine die by consent. The Court record makes a note to that effect. Mr Mansfield now says that at no time did he instruct his solicitors, Marks & Sands, to adjourn or consent to an adjournment of that application. Mr Mansfield now says that he was never served with the DPP's application for a criminal benefits declaration and was not aware of it until May 2003.

18 It appears that, at various times after Mr and Mrs Mansfield were served with the freezing order on 12 July 2002, and particularly after Mr Mansfield was charged on 14 August 2002, he and Mrs Mansfield and their daughter did not reside at the South Perth residence. As noted, Mr Mansfield was in protective custody for some time. However, from about 17 September 2002, Mrs Mansfield and their daughter recommenced residing at the South Perth residence. It seems Mr Mansfield resumed his residence there some time later.

19 On 14 February 2003, the three charges against Mr Mansfield that were preferred against him on 14 August 2002 were withdrawn and two new charges of obtaining a financial advantage by deception under s 134.2 of the Criminal Code Act 1995 (Cth) were preferred against him. He immediately pleaded guilty to those charges. The hearing was then adjourned to 8 April 2003 for sentencing. Mr Mansfield at that time continued to be represented by Marks & Sands. However, on 8 April 2003, Mr Mansfield's sentencing was further adjourned to 16 May 2003, to allow new solicitors appointed by him, Messrs Michael Tudori & Associates, to prepare further submissions on his behalf. Mr Mansfield says that he is taking advice with a view to withdrawing his guilty plea to the two charges entered on 14 February 2003.

20 It appears that Mr and Mrs Mansfield terminated their engagement of Messrs Marks & Sands and appointed Messrs Michael Tudori & Associates to act on their behalf in or about early April 2003.

21 Mr Cubbage says that, as of 10 April 2003, Mr Mansfield "ceased co-operating with Commission (ACC) investigators". Mr Mansfield says that this statement is not correct and that he has repeatedly told NCA (and, by inference, ACC) officers that all of the property the subject of the freezing order was legitimately obtained.

22 Between August 2002 and March 2003, when their engagement was terminated, Marks & Sands, on behalf of the Mansfields, dealt with the DPP in relation to a number of matters, including the desire of Mr and Mrs Mansfield to effect a partial release of the freezing order over certain items of property. I will return to that course of correspondence later in these reasons.

23 However, as a matter of fact, at no time between 27 August 2003, when the DPP's application for a criminal benefits declaration against Mr Mansfield was adjourned sine die by consent, until May 2003, when the present solicitors for Mr and Mrs Mansfield took out the application to strike out the DPP's application for want of prosecution and for abuse of process, did the DPP take any steps to relist the DPP's application for hearing.

24 While, during this material time, there does not appear to have been any attempt by the DPP, or for that matter Mr and Mrs Mansfield, to resolve either the DPP's application for criminal benefits declaration or the Mansfields' objection proceedings, the then second objectors pursued their objection to the freezing order insofar as it allegedly affected their interests in some of the property the subject of the freezing order.

25 On 16 July 2003, the second objectors' application to set aside the freezing order insofar as it allegedly affects their interests was heard by Wheeler J in this Court and her Honour reserved her judgment. At the time of hearing the application before me, the judgment of Wheeler J on the second objectors' application remained reserved.

26 On 16 July 2002, Wheeler J also granted leave for the first and third named persons (namely, John Kizon and Eddie Dharma respectively) included within the party described as Second Objectors to withdraw as parties with the heading of the proceedings to be amended in relation to the description of the Second Objectors to read "Fitzroy All Pty Ltd as trustee for the FA Trust (ACN 093 308 723)".

27 In proceedings not unrelated to the second objectors' objection proceedings, one of the then named second objectors, Fitzroy All Trust, by its trustee Fitzroy All Pty Ltd, commenced proceedings in CIV 2565 of 2002 in this Court against Mr Mansfield by writ of summons dated 14 November 2002. A statement of claim was filed in those proceedings on 30 January 2003. On 15 April 2003, by consent, Master Sanderson ordered the entry of summary judgment in favour of the plaintiff. On 19 June 2003, Mr Mansfield consented to a further judgment being entered against him in the proceedings in CIV 2565 of 2002. That judgment, ordered by Master Newnes, is annexed to these reasons.

28 In this general context, Mr and Mrs Mansfield have applied by chamber summons dated 1 May 2003 to strike out the freezing order and the DPP's application for criminal benefits declaration. In their application as amended in accordance with leave granted by me at the hearing of this application, the Mansfields seek orders in the alternative as follows:

(1) the freezing order and notice of motion dated 12 July 2002 be set aside on the ground of want of prosecution;

(2) in the alternative, these and any further such proceedings relating to the property the subject of the freezing order dated 12 July 2002 be stayed as an abuse of the court process;

(3) further, there be a mandatory injunction preventing the applicant from issuing any further freezing notice in relation to the property the subject of the freezing order dated 12 July 2002.

29 The application of the Manfields to strike out the freezing order was initially supported by an affidavit of Mr Mansfield and an affidavit of Mrs Mansfield both sworn 30 April 2003 and filed 1 May 2003. Each filed a second affidavit in support of the application. Mr Mansfield's second affidavit was sworn and filed 7 May 2003. Mrs Mansfield's second affidavit was sworn and filed 23 May 2003. An addendum to Mrs Mansfield's second affidavit was sworn 28 May 2003 and filed 30 May 2003.

30 On 8 May 2003, EM Heenan J made programming orders concerning the Mansfields' strike-out application. It required the DPP to file and serve any affidavits which the Director intended to rely upon in opposing the application within seven days of 8 May 2003. The Mansfields were obliged to file any answering affidavits within seven days thereafter. The application was adjourned to a special appointment.

31 Pursuant to the programming orders made by EM Heenan J, Mr Mansfield swore a third affidavit on 23 May 2003, as well as an addendum to that third affidavit on the same date. These were filed respectively on 23 May and 27 May 2003. On 23 May 2003, Mrs Mansfield also swore a second affidavit, which was filed on the same date. An addendum to Mrs Mansfield's second affidavit, which was sworn on 28 May 2003, was filed on 30 May 2003.

32 The Mansfields rely on all their affidavits in support of the application to strike out. They also rely on an affidavit of Mr Cubbage sworn 15 May 2003 and filed on the 16 May 2003 by the DPP in opposition to the application.

33 The DPP also seeks to rely on Mr Cubbage's affidavit, sworn on 15 May 2003, as well as a number of other affidavits, including a second affidavit of Mr Cubbage sworn 11 July 2003, and filed on the same date in opposition to the application. It purports to answer a number of factual allegations raised in Mr Mansfield's third affidavit.

34 Counsel for the Mansfields objected to the reliance of the DPP on Mr Cubbage's second affidavit on the basis that it was not filed in compliance with the programming orders made by EM Heenan J. Having heard submissions from the parties on that issue, I was not satisfied that the Mansfields would suffer any particular prejudice if the DPP was granted leave to rely upon that affidavit and, accordingly, I granted leave at the hearing of the application for the DPP to read and rely upon Mr Cubbage's second affidavit.

35 Counsel for the DPP also sought to rely upon affidavits of Laurence Mark Levy (filed in the objection proceedings of the second objectors) made 10 July 2003, Jonathan Alfred Gray made 18 July 2003, and Mr Gray made 19 August 2003, as well as the affidavit of John Kizon made 15 April 2003 (filed in the objection proceedings of the second objectors) to the extent that it contained exhibits referred to in the outline of submissions filed on behalf of the DPP. Counsel for the Mansfields opposed the DPP's reliance on these affidavits. Following submissions, it became plain that the DPP sought to rely on these affidavits in order to make complete the narrative and documentary history of the proceedings to date said to be relevant to the Mansfields' application to strike out. On this basis and because it did not appear to me that the Mansfields would suffer any particular prejudice if the DPP were granted leave to rely upon such affidavits for the purposes described by counsel for the DPP, I granted leave to rely upon them to the extent stated.

36 In relation to the ground that the freezing order and the DPP's application for a criminal benefits declaration against Mr Mansfield should be set aside on the ground of want of prosecution, counsel for the Mansfields contends that, because no material steps to progress that application have been taken since the application was adjourned sine die on 27 August 2002, there is a material failure to prosecute the application which should now result in the application and the freezing order being struck out and set aside respectively.

37 It is common to state that this Court, like other superior courts, has an "inherent jurisdiction" to dismiss an action or other proceeding for want of prosecution and that no prior warning of the application is required: Ulowski v Miller [1968] SASR 277 at 282, 283, 285; Lewandowski v Lovell (1994) 11 WAR 124. However, it may be more correct to refer to the Court's inherent power to so order: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 518 fn (22).

38 The discretion to dismiss an action for want of prosecution is considered not to be fettered by any absolute or inflexible rules and each case must depend on its own facts: Lewandowski v Lovell (supra) per Kennedy J at 128. Nonetheless, it is usual to suggest that five paramount matters are to be considered in dealing with such an application: the length of the delay; the explanation for the delay; the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred; the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and the conduct of the defendant in the litigation: Ulowski v Miller (supra) at 280; Lewandowski v Lovell (supra) at 133.

39 Counsel for the Mansfields contends that the ordinary principles governing an application for the striking-out of civil proceedings in this Court are well established and apply to the DPP's application for criminal benefits declaration and the freezing order to which that application relates. Thus, counsel contends that, while an order dismissing the proceedings for want of prosecution is a draconian order and will not be lightly made and should not ordinarily be exercised without giving the plaintiff an opportunity to remedy a default, such an order may be made, nonetheless, if the Court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his or her lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date on which, as a result of the delay, the action would come to trial if it were allowed to continue: Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 259 - 260 per Diplock LJ; Lewandowski v Lovell (supra) at 131 - 132 per Murray J (with whose reasons Kennedy and White JJ agreed).

40 In Lewandowski v Lovell (supra) at 132, Murray J plainly accepted that a plaintiff may not be entitled to remedy his or her default in failing to prosecute an originating process satisfactorily where either intentional or contumelious delay is established, or the prejudice to a defendant likely to arise from such delay can be demonstrated to the requisite degree. So far as the latter ground is concerned, Murray J made it clear, at 132, that the onus to establish prejudice lies upon the defendant and that the prejudice to be demonstrated need only be that which is caused by the delay, rather than by any particular conduct on the part of the plaintiff.

41 Counsel for the Mansfields also submits that the Court's inherent jurisdiction or power to dismiss an action or other proceeding for want of prosecution is to be exercised having regard to the case flow management principles which are set out in the Rules of the Supreme Court, O 1 rr 4A and 4B and O 29: Hughes v Gales (1995) 14 WAR 434 at 450.

42 Counsel for the DPP generally accepts that these are the principles that govern a strike-out application in respect of ordinary civil litigation in this Court and are capable of being applied in proceedings under the Confiscation Act.

43 In this regard, it should be noted that, by s 102(1) of the Confiscation Act, proceedings on an application under the Act are taken to be "civil proceedings" for all purposes. It follows that the application of the Mansfields to strike out is a civil proceeding. Therefore, there is no reason in principle why the usual powers of the Supreme Court to control proceedings before it, including the power to dismiss a proceeding for want of prosecution or abuse of process, should not apply to civil proceedings under the Confiscation Act: see also "B" v State of Western Australia [2002] WASC 298.

44 There is no provision of the Confiscation Act which expressly provides for an application for a criminal benefits declaration to be struck out, set aside or stayed on the ground that there has been a failure to prosecute that application, or because it is an abuse of the process of the Court. However, there is no reason to doubt that the "inherent jurisdiction" or power of this Court to control proceedings in the Court and so to deal with actions which are not prosecuted in a satisfactory manner, or to deal with proceedings which are an abuse of process, may be exercised in respect of civil proceedings commenced under the Confiscation Act. Indeed, s 104 of the Confiscation Act makes specific reference to the Court's power to stay proceedings in providing that the fact that criminal proceedings under the Act, or any other enactment, have been instituted is not a ground on which the Court may "stay proceedings" under the Act that are not criminal proceedings. This provision seems to have been enacted on an understanding that the Court retains a more general power to stay proceedings under the Act.

45 Further, there is no basis for contending that the Confiscation Act takes away the power of this Court to strike out a proceeding for failure to prosecute it in a satisfactory manner.

46 The question here, then, is whether, on the whole facts of the case, the Mansfields have made out a case for the exercise of the power of the Court to dismiss the DPP's application for criminal benefits declaration against Mr Mansfield for want of prosecution and in consequence to set aside the freezing order.

47 Counsel for the Mansfields argues that the length of the delay in failing to progress the DPP's application for criminal benefits declaration is inordinate and there has been a failure on the part of the DPP to explain the delay . He submits that the relevant period in question is between August 2002, when the application was adjourned sine die, and May 2003, when the Mansfields' application to strike out was filed, a period of some 11 months. He submits that a period of 11 months, when considered in the context of the Confiscation Act, should be considered inordinate.

48 Counsel for the Mansfields, in this regard, first points to s 43(3)(c) of the Confiscation Act which requires, in effect (though not expressly), the DPP to make an application for a criminal benefits declaration within 21 days of a freezing order being made, where that particular ground is relied upon in support of the making of the freezing order. From that statutory provision, counsel seeks to draw something of an inference, as I understand his submission, that because the application should ordinarily be made within 21 days of the freezing order, the application must be prosecuted actively once it has been filed.

49 I am not at all sure that such an inference can properly be drawn from this provision. In my view, the question whether or not there has been an inordinate delay, such that the Court might consider dismissing a proceeding for want of prosecution, needs to be considered in the light of the whole facts of the case. The Act does not expressly or by inference lay down a time limit for the hearing of an application for criminal benefits declaration.

50 However, I consider that, in relation to proceedings under the Confiscation Act, it is appropriate to regard the nature and purposes of the legislation and the devastating effect a freezing order made under it can have on persons whose property is made the subject of the freezing order. While the objects of the Act are not expressly laid out in it, they can be gleaned from the Short Title to the Act and its terms. The Act is intended to provide for the confiscation in certain circumstances of property acquired as a result of, or used in, criminal activity. It is intended to be far-reaching. The far-reaching effects of the legislation were well recognised when the Bill was debated in the Parliament of Western Australia in the year 2000. In moving that the Criminal Confiscation Property Bill 2000 be read a second time, the Parliamentary Secretary stated that:

"Combating organised crime in Western Australia is currently shackled by inadequate and outdated legislation. The approaches reflected in the current statutory provisions have not been as successful as was contemplated when introduced ...

This new era of organised crime requires a more effective and better targeted approach, underpinned by a strong statutory framework, to confiscation of proceeds of criminal activity and property used in criminal activity."

Hansard, Legislative Assembly, Thursday 29 June 2000, page 8611, Mr Barron-Sullivan.

51 Features of the Bill considered to be unusual because they broke with legal tradition and could affect the interests of innocent parties were also noted in the second reading debate of the bill: see, for example, Hansard, Western Australian Legislative Assembly, 17 August 2000, at 523 - 539, Mr McGinty, Member for Fremantle.

52 In the present case, the far-reaching effect of a freezing order is demonstrated by the fact that not only is property apparently belonging to Mr Mansfield affected by the freezing order, but so also is property or interests in property apparently held by Mrs Mansfield. However, the DPP's application for a criminal benefits declaration is made only in respect of Mr Mansfield. The freezing order, as it affects Mrs Mansfield, seems to depend upon an allegation that all the property in the freezing order is owned or "effectively controlled" by Mr Mansfield: s 43(3)(c). That is an allegation which will need to be made out on the hearing of the application, if the freezing order is to be maintained against Mrs Mansfield.

53 Mr and Mrs Mansfield have commenced objection proceedings under s 79 of the Act to set aside the freezing order. It remains open to them to prosecute their objection proceedings to establish, inter alia, that Mr Mansfield does not own or effectively control the property or interests Mrs Mansfield has in property the subject of the freezing order.

54 However, and notwithstanding that Mrs Mansfield and Mr Mansfield may maintain objection proceedings to set aside the freezing order, in my view, the DPP remains subject to an obligation to pursue the application for a criminal benefits declaration against Mr Mansfield in order to make the freezing order permanent. Neither Mrs Mansfield nor Mr Mansfield have to prove that Mr Mansfield should not be made the subject of a criminal benefits declaration. The onus in that regard falls squarely on the DPP as the applicant for the declaration: s16(1) of the Confiscation Act. The fact that a person may file an objection and pursue proceedings on an objection pursuant to Pt 6 of the Confiscation Act, and that the Court has the power under s 81 to set aside a freezing order on hearing an objection, does not, in my view, relieve the DPP of the burden imposed upon it on the hearing of an application for a criminal benefits declaration to make out its case. This is confirmed by s 49(3)(c) of the Act which provides that, if the Court does not make the declaration upon hearing the application made by the DPP, the freezing order stops being in force.

55 In these circumstances, it is not for the DPP effectively to elect not to pursue the application for a criminal benefits declaration and insist that an objector pursue its objection proceedings. Rather, where a criminal benefits declaration application has been made and objection proceedings have been commenced, both parties labour under an obligation properly to pursue the proceedings they have initiated.

56 This is not to say that in every case where the DPP makes an application for a criminal benefits declaration against a person, or a person affected by a freezing order commences objection proceedings, the applicant in each proceeding may not be entitled to a delay, adjournment or stay in the hearing of the application or proceeding. For example, complex issues of fact and law may well arise in relation to an application for a criminal benefits declaration that would entitle the DPP to resist the early listing of the application for hearing.

57 Further, the Confiscation Act, by Div 2 of Pt 5 provides for the conduct of examinations of persons in relation to the objects of the Act. In some cases, information may come to hand through such examinations that is pertinent to a pending application for criminal benefits declaration. Until such an examination is properly concluded, the hearing of the criminal benefits application may well be considered premature.

58 In other words, no hard and fast rules can be laid down governing the timing of the hearing of such an application.

59 Similar observations may be made in respect of the prosecution of objection proceedings by a person affected by a freezing order. The matters in issue may be of such complexity that lengthy investigations are required in order to provide the person affected with the opportunity to adduce relevant evidence in relation to the objection proceedings. A hearing of the objection proceedings may for this reason need to be delayed to do justice.

60 It should also be recognised that there will no doubt be occasions where the law enforcement responsibilities of a Commonwealth agency such as the ACC and a State agency such as the DPP in relation to its powers and responsibilities under the Confiscation Act, will intersect or overlap. The Confiscation Act is intended, amongst other things, to enable a freezing order to be made under State law in respect of a "confiscation offence". Such an offence is defined by s 141(1) to include "an offence against a law in force anywhere in Australia that is punishable by imprisonment for 2 years or more". That picks up a Commonwealth law, not to mention the law of another State or Territory. Relevant provisions of the Act make it clear that the Act is concerned with all confiscation offences, whether committed in Western Australia or elsewhere: see, eg, s 5(2)(a) and (3)(b).

61 Thus, the Court may make a criminal benefits declaration in relation to a person who has been involved in the commission of a confiscation offence, whether that offence was against Commonwealth, Western Australian or some other State or Territory law.

62 If follows that the DPP may apply for a freezing order in respect of a person's property on the basis that the DPP intends to make an application for a criminal benefits declaration in respect of that person where the DPP has proper grounds for considering, perhaps on the basis of information supplied by another body, such as the Commonwealth ACC, that the person is involved in a confiscation offence, being an offence against Commonwealth law.

63 It also follows that the DPP may well be dependent upon another agency, such as the ACC, for information and evidence necessary to sustain an application for a criminal benefits declaration.

64 It is also not outside the realms of possibility that, in getting up an application for criminal benefits declaration for hearing, information or evidence may come to hand, either within the other agency or within the office of the DPP, that requires some refinement of the evidence to be lead in support of the application.

65 It is also conceivable that circumstances may arise in any particular case where, by reason of an agreement, understanding or arrangement, formal or loose, between the person the subject of the DPP's criminal benefits application and the DPP, the early disposition of the DPP's application may be unnecessary.

66 In this particular case, it is plain that the NCA, and later the ACC, were involved in the investigation of offences against Commonwealth law by Mr Mansfield. Those agencies, on the materials before me, apparently also considered that, by reason of the relationship between Mr Mansfield and Mr Kizon, one of the then named second objectors, Mr Kizon may also have committed offences against Commonwealth law. In order to further those lines of investigation, it appears that, on 14 July 2002, Mr Cubbage, on behalf of the ACC, executed a search warrant at the South Perth premises at which the Mansfields resided. As noted above, at the time that search warrant was executed, the freezing order obtained in this Court some few days beforehand was served on Mr and Mrs Mansfield. There is nothing objectionable in the conjoint exercise of these law enforcement powers.

67 As I have indicated earlier in these reasons, there is now some disputation between the Mansfields and Mr Cubbage, having regard to the affidavit evidence before me, as to the particular circumstances in which, and reasons for which, Mr Cubbage's and the NCA's and later the ACC's investigations thereafter proceeded, charges laid and withdrawn and fresh charges laid against Mr Mansfield for alleged contravention of Commonwealth law, the arrangements made for Mr and Mrs Mansfield's protective custody and the general understanding between Mr Mansfield and Mr Cubbage concerning the investigations that Mr Cubbage was undertaking.

68 While this dispute now appears to exist, it is equally plain, on the evidence before me, that the office of the DPP in Western Australia maintained regular dealings with the Mansfields' solicitors, Marks & Sands, in the period between August 2002 and April 2003. That is not to say that the office of the DPP did not seek information and guidance from Mr Cubbage and the NCA and ACC, for plainly it did, but the DPP also attended to the resolution of certain requests made on behalf of the Mansfields concerning their release from the terms of the freezing order. Nonetheless, on the evidence before me, it seems that the DPP was dependent, or reliant, on information and advice from the ACC to enable it to prosecute the DPP's application for criminal benefits declaration.

69 Counsel for the DPP says that, when one has regard to the whole facts of the case, Mr and Mrs Mansfield were "content" for the DPP not to seek the early listing of the application for criminal benefits declaration against Mr Mansfield. It seems to me there is a degree of truth to this contention, although it must also be said that, at all material times, Mr and Mrs Mansfield were anxious to be released from the constraints of the freezing order, at least to the extent that would enable them to meet their reasonable living and business expenses and otherwise discharge commitments to financial institutions which held security over certain property the subject of the freezing order. The latter desire, of course, is not necessarily inconsistent with an understanding on the part of the Mansfields that the DPP's application would not be listed for an early hearing.

70 The evidence suggests to me that, at material times between the making and service of the freezing order on the Mansfields in July 2002, and early 2003, the Mansfields accepted, perhaps tacitly, that the matter of the freezing order would remain unresolved pending the conclusion of the investigations of the NCA/ACC in relation to Mr Mansfield's alleged contravention of Commonwealth law and his dealings with Mr Kizon. While it is difficult to say why they so determined, it does appear that, at some point in early 2003, Mr and Mrs Mansfield determined they would no longer accept this state of affairs and that they should initiate further action to set aside the freezing order.

71 It may be, though it need not be determined on this application, that the Supreme Court action commenced by the Fitzroy All Trust against Mr Mansfield, in which proceedings Mr Mansfield consented to the orders referred to above which related directly to the property the subject of the freezing order, had some bearing on the determination of Mr and Mrs Mansfield to take a proactive stance in relation to the DPP's application.

72 As I indicated earlier in these reasons, soon after the freezing order was made in July 2002, the Mansfields instructed solicitors to act for them. On the return of the Mansfields' application to set aside the freezing order, which the solicitors had filed in mid-August 2002, the application was adjourned sine die, with liberty to apply, as a result of discussions and an exchange of correspondence between the solicitors for the Mansfields and the office of the DPP. There is nothing in the evidence before me to suggest that the DPP had any reason to think that this arrangement made on behalf of the Mansfields by their then solicitors was not authorised by the Mansfields. Of course, as noted earlier, Mr Mansfield now says that he did not give any instructions to his former solicitors to so act. However, for the purposes of this application it is difficult for the Court to accept as a matter of fact, in light of the other dealings between the parties, that Mr Mansfield and Mrs Mansfield were unaware of the DPP's application for criminal benefits declaration and that that application was adjourned sine die on 27 August 2002.

73 The evidence shows that the former solicitors for Mr and Mrs Mansfield received at least a facsimile copy of the DPP's application and that they acted in respect of it. Mr Mansfield now says that he did not see that application until May 2003. Be that as it may, at all material times, in August 2002 and thereafter during 2002, I consider Mr and Mrs Mansfield were aware that the freezing order was in place and would remain in place for the time being notwithstanding the objection proceedings they had initiated in respect of it. For the purposes of this application, it appears to me, on the balance of probabilities, that it may be inferred Mr and Mrs Mansfield understood that no immediate action would be undertaken by the DPP in respect of the freezing order pending the advancement or conclusion of further investigations by the NCA/ACC in respect of Mr Mansfield and his relationship with Mr Kizon.

74 As noted earlier, in mid-August 2002 the then second objectors also commenced objection proceedings. Additionally, the DPP had also obtained, on 12 July 2002, when the freezing order was made, an order for examination in relation to matters relevant to the freezing order. The matter of the second objectors' objection proceedings was then progressed. The second objectors also sought an order for discovery of documents in relation to their objection proceedings. Subsequently, the second objectors' objection proceedings were listed for hearing.

75 In the meantime, the solicitors for the Mansfields dealt with the office of the DPP and sought a partial release from the terms of the freezing order. By facsimile transmission dated 3 September 2002, the then solicitors for the Mansfields wrote to the office of the DPP, noting that:

" ... due to the physical limitations upon Nigel Mansfield and his wife Roslyn [sic] Mansfield the effective maintenance will fall to our Matthew Walton in respect of the day-to-day handling of the assets on their behalf.

In that regard we have to hand numerous correspondence relating to the Mansfields' affairs which indicate that certain obligations to which the Mansfields are bound have become outstanding. Urgent action needs to be taken so as to avert repossession of certain assets.

The consent order notes that the funds held within the Challenge Bank Classic Account number 736-050-51-1644 be released so as to control and manage these certain assets. On that basis we are seeking the full release of those funds held within that Challenge Bank Account so as to attend to those obligations as soon as possible."

This facsimile transmission also requested that the full available funds within that account be made available to avoid the repossession of the Jaguar motor vehicle on 5 September 2002.

76 Further correspondence passed between Marks & Sands and the DPP's office during September 2002. A facsimile transmission of Marks & Sands dated 27 September 2002 noted that the aforesaid consent orders had not been executed and filed, but that the solicitors had attended to the urgent payment of accounts some time ago in order to avoid repossession of certain assets and further deterioration in the maintenance of those assets and that they made various payments totalling $31,104.81. The solicitors requested the release of the total funds in the Challenge Bank account 736-050-51-1644 (much less than that total sum). This advice, perhaps not surprisingly, resulted in a request from the office of the DPP in a letter dated 1 October 2002 for advice as to the source of the funds that the solicitors had used to make the payments totalling $31,104.81.

77 By letter dated 1 October 2002, Marks & Sands advised that the source of the payments was solely from credit cards in the names of their clients which were not the subject of the freezing order and noted that interest was accruing in respect of the credit card accounts, and that those funds needed to be met.

78 It became apparent in this period that there was a difficulty in obtaining a variation to the freezing order by consent because of the position taken by the second objectors. In a letter dated 2 October 2002 from the office of the DPP to Marks & Sands sent by facsimile, the solicitors for the Mansfields were advised that "Laurie Levi & Associates [the solicitors acting for the second objectors] have advised us that they oppose the release to Mr Mansfield of any funds or property the subject of the freezing order". The DPP then further advised that:

"It appears to us that in the circumstances it is now appropriate to apply for consent orders only appointing Mr and Mrs Mansfield to control and manage the property."

The reference to the "property" is a reference to the South Perth premises previously referred to.

79 By letter dated 7 October 2002 sent by facsimile transmission, Marks & Sands wrote to the NCA requesting the immediate return of computers removed by the "NCA/AFP" from 18 Addison Street, South Perth, including computer hardware and software, as well as all furniture and computer equipment at 11 Hopetoun Street, South Perth apparently under the control and management of the DPP. Other property including, Qantas Club card, Rolex watch and materials relating to Mr and Mrs Mansfield's daughter were also the subject of this request. A copy of that letter was sent to the office of the DPP.

80 By letter dated 21 October 2002, also sent by facsimile transmission, the office of the DPP responded to that letter of 7 October 2002 in the following terms:

"I have advised the National Crime Authority that [Ms Mansfield's] property has not been frozen and may be returned to her.

Further to my letter to you dated 2 October 2002, I advise that in the event your clients' [sic] make an application to the court for the release of monies we will consent to the application, subject to agreement being reached as to the specific amount to be released. Such an application would have to be served upon the other objectors.

I note that I have not received a response to the draft consent orders appointing the Mansfields to manage and control the property. Please advise whether your clients are prepared to consent to these orders. In the event that they are not, we will have to consider appointing the Public Trustee to manage the property."

81 By letter dated 13 November 2002 and sent by facsimile transmission, Marks & Sands forwarded to the office of the DPP an executed minute of consent orders to be filed with the court as soon as practicable. The letter noted that the Mansfields still considered it critical that they should receive all computer equipment removed from 18 Addison Street, South Perth and Hopetoun Street, South Perth as soon as possible. They noted that Mr Cubbage of the NCA apparently had "no difficulty" with the return of this property. A copy of that letter was sent by facsimile transmission to Mr Cubbage at the NCA.

82 By letter dated 13 November 2002 sent by facsimile transmission, the office of the DPP advised Marks & Sands that a minute of consent orders would be filed in the court and that the NCA would return the computers to the Mansfields. They were asked to contact Mr Cubbage to make the necessary arrangements. However, the computers remained frozen such that the Mansfields could not "deal" with them in any way.

83 By letter dated 19 November 2002 sent by facsimile transmission, Marks & Sands requested the office of the DPP to return the gold Rolex wrist watch of Mr Mansfield.

84 The minute of consent orders proposed that Mr Mansfield be appointed to control and manage a number of motor vehicles, jewellery and antiques, household furniture and effects and the computer equipment, and that Mrs Mansfield be appointed to control and manage two motor vehicles registered in her name. The minute went on to provide that both Mr and Mrs Mansfield should be appointed to control and manage the 18 Addison Street, South Perth property and Unit 3 at 28 Eric Street, Como. Consent orders in terms of the minute were made by me on 26 November 2002 to that effect.

85 It then appears that, in late November 2002, Mr Kizon gave notice to Mr Mansfield that proceedings would be instituted against him in the Supreme Court in respect of property the subject of the freezing order that Mr Kizon or other of the second objectors claimed belonged to them and not to Mr or Mrs Mansfield. Information to that effect was also transmitted to the office of the DPP on or about 27 November 2002.

86 As explained earlier in these reasons, the trustee of the All Fitzroy Trust commenced proceedings in the Supreme Court of Western Australia and obtained a default judgment against Mr Mansfield in respect of certain property the subject of the freezing order. The terms of the judgment ultimately entered in June 2003 are annexed to these reasons. Mr Mansfield was the sole defendant in those proceedings and consented both to the entry of the initial summary judgment and the ultimate judgment annexed to these reasons. Mrs Mansfield was not a party to those proceedings, although the terms of the ultimate judgment appear to affect her interests in some of the property.

87 It appears from the affidavit materials before me that the question of release of certain property from the terms of the freezing order remained a matter of discussion between Marks & Sands and the office of the DPP up until March and early April 2003, immediately prior to the Mansfields terminating their engagement of Marks & Sands and engaging Michael Tudori & Associates, the present solicitors on the record for them. In a letter dated 1 April 2003 from the office of the DPP to Marks & Sands (a file copy of which is in evidence before me) apparently sent by facsimile, the DPP stated:

"I confirm our previously stated opinion that given third parties have filed objections and claim to have an entitlement to the assets currently frozen, the proper course is for Mr Mansfield to make the application to the court, and to serve that application on ourselves and the other objectors. As we are not able to finally resolve the matter because of the involvement of third parties, we think it is desirable that the application be filed immediately, and that we use the time between now and the hearing to further narrow the issues as between ourselves.

It is our position that all sources of funds available to meet the living and business expenses of Mr and Mrs Mansfield and their daughter ought to be identified."

88 From these dealings between the former solicitors for the Mansfields and the office of the DPP, I consider it reasonable to infer that, while the Mansfields may not have been willing to accept that the freezing order should be maintained indefinitely, they understood that it would remain in place for the time being, pending the resolution of the charges preferred against Mr Mansfield and possibly the completion of investigations pertaining to the dealings involving Mr Mansfield and Mr Kizon that were the subject of the charges to which Mr Mansfield ultimately pleaded guilty in February 2003, and implicitly accepted this arrangement for the time being.

89 In that regard, as noted earlier in these reasons, on 14 August 2002 Mr Mansfield was charged with three criminal offences under the Crimes Act 1914 (Cth) and Proceeds of Crime Act (1987) (Cth). In January 2003, these charges were withdrawn and replaced with two charges under the Criminal Code Act 1995 (Cth).

90 On 14 February 2003, Mr Mansfield pleaded guilty to two charges of obtaining a financial advantage by deception under s 134.2 of the Criminal Code Act 1995 (Cth) and the matter was adjourned to 8 April 2003 for sentencing.

91 Mr Mansfield in fact says in his third affidavit that, at material times after 14 July 2002, as a result of his dealings with Mr Cubbage and the NCA, he adopted the view that he should, in effect, take no steps to obtain legal advice or pursue action against the DPP or the NCA. To my mind, this belief tends to confirm the understanding that the evidence suggests Mr and Mrs Mansfield maintained at material times until early in 2003. However, Mr Mansfield now believes that the conduct of the NCA and Mr Cubbage in the period after the service of the freezing order in July 2002, was part of a deliberate policy designed to instil fear into him and his family so that they would assist the NCA in its investigations concerning the true source of the property the subject of the freezing order. These allegations are denied without reservation by Mr Cubbage.

92 Suffice it to say that, given the serious nature of the allegations made against Mr Cubbage and the NCA/ACC by Mr and Mrs Mansfield in their affidavits and the unreserved rejection of those allegations by Mr Cubbage in his affidavit, the Court is in no position to resolve the disputed accounts each has provided in relation to these allegations.

93 In any event, even if proved, such allegations would not necessarily lead to the conclusion that the DPP intentionally and contumeliously refrained from prosecuting the application for criminal benefits declaration against Mr Mansfield. Rather, it seems to me that, whatever the initial explanation for the position taken by Mr Mansfield is, Mr Mansfield was prepared not to prosecute the objection proceedings he and Mrs Mansfield had commenced in respect of the freezing order and understood that the DPP would not bring its application for criminal benefits declaration to a head pending the completion of the NCA/ACC investigations of matters concerning him.

94 It seems to me that Mr and Mrs Mansfield's position in that respect changed at some point either in late 2002 or early 2003, perhaps as a result of the commencement of proceedings in the Supreme Court against Mr Mansfield by the trustees of the Fitzroy All Trust. As can be seen from the terms of the consent judgment entered against Mr Mansfield in those proceedings, Mr Mansfield has recently, in effect, acknowledged that most of the property the subject of the freezing order, whether in his name or Mrs Mansfield's name or in their joint names, is the property of the Fitzroy All Trust. As a result of the consent judgment entered in July 2003, the only items of property referred to in the freezing order not the subject of Mr Mansfield's effective acknowledgement are those referred to in the freezing order pars 1(b), (c), (e), (f) and (g). Paragraph 1(b) includes the real property at 18 Addison Street, South Perth and Unit 3, 28 Eric Street, Como. However, par 8 of the consent judgment appears to determine that, since at least 12 July 2002 (when the freezing order was made), the Fitzroy All Trust, is entitled to a legal and/or equitable interest in such property. However, the full terms of par 8 of the judgment may suggest that it is properly to be construed as an order which provides a form of security in relation to those items of real property designed to ensure the repayment of the sum of $1,190,000, which is referred to in par 7 of the judgment.

95 In all of these circumstances, I am not satisfied that the failure of the DPP to prosecute the DPP's application for criminal interest declaration by having programming orders made, the matter listed and a hearing conducted before May 2003, constitutes an intentional and contumelious delay in those proceedings. The delay such as it is, is to be explained largely by the course of events described above.

96 Nor am I satisfied that the delay has caused such prejudice to Mr or Mrs Mansfield as to deny them a fair trial on the hearing of the DPP's application. The Mansfields are as able to respond to the DPP's application now as they were during the latter part of 2002. They have not demonstrated any prejudice in this regard. I am mindful that in appropriate circumstances prejudice may be found in a very broad sense despite the absence of specific prejudice: Hughes v Gales (supra) at 450. Neither broad nor specific prejudice is established here by the Mansfields.

97 In any event, in considering what prejudice Mr and Mrs Mansfield may have suffered, it is appropriate, in my view, to have regard to the terms of the consent judgment in Supreme Court action CIV 2565 of 2002. It is difficult to understand why Mr and Mrs Mansfield should complain about prejudice in relation to the freezing order when, as of 15 April 2003, Mr Mansfield consented to summary judgment being entered in that action, and then on 19 June 2003 consented to the further judgment being entered against him in the terms annexed to these reasons. By the terms of the latter judgment, Mr Mansfield has acknowledged, both for himself and Mrs Mansfield, that most of the property has been the property of the FA Trust since at least August 2000: see par 4 of the judgment. And as to the real property referred to in par 1(b) of the freezing order, Mr Mansfield has, in effect, acknowledged that, since at least 12 July 2002 when the freezing order was made, the FA Trust has held a legal and equitable interest in it equal to the sum of the monetary amount payable on the summary judgment and for damages: see par 8 of the consent judgment.

98 If Mr Mansfield accepts that, since at the very latest 12 July 2002, he and Mrs Mansfield have had no or little interest in the property the subject of the freezing order, it is difficult to see how they, or at least he, can claim prejudice sufficient to cause the Court to conclude that the failure of the DPP to prosecute its application for criminal benefits declaration should be dismissed for want of prosecution.

99 In their application, the Mansfields also claimed that the freezing order and the DPP's application for a criminal benefits declaration against Mr Mansfield should be stayed as an abuse of the process of this Court and that a mandatory injunction should go to prevent the DPP from seeking any further freezing orders in relation to the property the subject of the present freezing order.

100 In relation to this ground, the Mansfields say that, at the time the NCA, or Mr Cubbage, laid the first three charges against Mr Mansfield in August 2002, the substance of which were referred to in the affidavit supporting the application for the freezing order, Mr Cubbage, as the investigator for the NCA, knew that the proposed charges "had no prospects for success and were simply laid whilst the NCA looked to formulate its case".

101 It is also alleged by Mr and Mrs Mansfield that the freezing order was served on them in an attempt by the DPP or the NCA to exert pressure upon them to give the DPP or the NCA information concerning Mr Kizon and other parties.

102 It is further alleged that the freezing order was obtained and served on the Mansfields in an attempt to delay and prolong the time and means by which the DPP or NCA could "coerce and control" the Mansfields in an attempt to obtain information from them about Mr Kizon and other persons.

103 There is no doubt that this Court has the power to stay, and if necessary stay permanently, any proceedings in the Court on the ground that the process of the Court has been abused. In Williams v Spautz (supra) at 518, Mason CJ and Dawson, Toohey and McHugh JJ noted that it is well established that Australian superior courts have inherent jurisdiction or power to stay proceedings which are an abuse of process. That power arises from the need for the Court to be able to exercise effectively the jurisdiction which the Court has to dispose of the proceedings.

104 In Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334 at 341, the Full Court (Franklyn, Owen and Parker JJ) noted the power of this Court under s 16(1)(d)(i) of the Supreme Court Act 1935 (WA) "to administer justice" and so to make any order necessary to prevent an abuse of process of the Court. Thus, it seems to me that the power of this Court to stay criminal and civil proceedings for abuse of process is a power that may be said ultimately to derive from s 16 of the Supreme Court Act.

105 So far as the exercise of the power to prevent an abuse of process of the Court is concerned, as the Court emphasised in Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (supra) at 345, the power of the Court to control its own proceedings and to arrest an abuse of process exists for the public interest. The Court there noted that:

"It is even more critical that a court in the late 20th century should guard its processes jealously and be sensitive to the public interest. Access to justice is a critical factor in the functioning of a fair society. Court resources, both in terms of time and facilities are scarce and shrinking. This makes even more important for a court to ensure that public resources are applied in the best and most efficient means possible."

106 It is plain that the commencement and maintenance of proceedings for an improper purpose may constitute an abuse of process justifying the permanent stay of civil proceedings. Where an allegation of this type is raised, the question of abuse of process is not to be resolved by reference to the question whether the opportunity of a fair trial has been precluded: Williams v Spautz (supra) at 521. In Williams v Spautz at 522, Mason CJ, Dawson, Toohey and McHugh JJ accepted that the power to permanently stay proceedings:

" ... must extend to the prevention of an abuse of process resulting in oppression, even if the moving party has a prima facie case or must be assumed to have a prima facie case. Take, for example, a situation in which the moving party commences criminal proceedings. He or she can establish a prima facie case against the defendant but has no intention of prosecuting the proceedings to a conclusion because he or she wishes to use them only as a means of extorting a pecuniary benefit from the defendant. It would be extraordinary if the court lacked power to prevent the abuse of process in these circumstances."

See also Flower & Hart (A firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134 at 150.

107 It is also plain that the onus of satisfying a Court that there is an abuse of process lies upon the party alleging it and that the onus is "a heavy one". As Mason CJ and Dawson, Toohey and McHugh JJ stated in Williams v Spautz (supra) at 529, the power to grant a permanent stay "is one to be exercised only in the most exceptional circumstances". However, their Honours accepted that the onus to be discharged is not that the improper purpose is the sole purpose of the moving party, but the predominant purpose: Williams v Spautz (supra) at 529.

108 On the evidence before me, I am not satisfied that the Mansfields have discharged the heavy onus on them to show that the predominant purpose of the DPP in seeking and maintaining the freezing order and in making the DPP's application for criminal benefits declaration was for an improper or collateral purpose to that evident in the order and the application.

109 As I have emphasised earlier in these reasons, the Confiscation Act is drafted and may operate on the understanding that the DPP for Western Australia may obtain information or receive information from other law enforcement agencies, such as the former NCA and the present ACC, both Commonwealth agencies. In this case, the application for the freezing order was supported by an affidavit of Robert MacGregor Philp, a Senior Financial Investigator with the NCA, who deposed to the fact that the NCA had gathered evidence in relation to the financial activities of Mr Mansfield. His affidavit went on to set out what he believed to be reasonable grounds to suspect that Mr Mansfield had committed certain confiscation offences. On 11 July 2002, when Mr Philp made his affidavit and the DPP applied for the freezing order, no charges had, in fact, been preferred against Mr Mansfield in connection with the matters alleged in Mr Philp's affidavit. Charges were not laid until August 2002. That is an issue raised in the submissions of counsel for Mr and Mrs Mansfield.

110 However, in my view, the fact that charges had not been laid at the time the DPP applied for the freezing order is not to the point. As I have explained earlier in these reasons, a freezing order may be made, inter alia, where the DPP advises the Court that an application for a criminal benefits declaration is likely to be made within 21 days after the freezing order is made. Here, that advice was given to the Court and the application for a criminal benefits declaration was made by the DPP soon after the time of the making of the freezing order. Ultimately, the freezing order will be sustained if the Court grants a criminal benefits declaration on the application of the DPP. A criminal benefits declaration must be made by the Court under s 16(1) of the Confiscation Act if it is "more likely than not" that, inter alia, the property described in the application is a constituent of the respondent's wealth, the respondent is or was involved in the commission of a "confiscation offence" and the property was wholly or partly derived or realised, directly or indirectly, as a result of the person's involvement in the commission of the confiscation offence, whether or not it was lawfully acquired. A number of expressions used in s 16 are defined in Pt 12 - Interpretation - of the Act, including "confiscation offence" (s 141), the constituents of a person's wealth (s 143) and acquiring criminal benefits (s 145).

111 It follows that, amongst other things, it is necessary for the DPP to establish on an application for a criminal benefits declaration that the respondent was involved in the commission of a confiscation offence. It is not necessary that the DPP prove that a respondent was himself or herself charged with some related offence or the like. The fact that neither Mr nor Mrs Mansfield had been charged with any offence at the time the freezing order was obtained is, therefore, irrelevant to the question whether the freezing order should have been granted in the first instance.

112 It seems to me equally irrelevant, in the circumstances of this case, that the three charges initially preferred against Mr Mansfield were later withdrawn in February 2003 and replaced with two other charges. The subject matter of the two charges preferred in February 2003 was referred to, amongst other matters, by Mr Philp in his affidavit supporting the application for the freezing order.

113 As to the further allegation that Mr Cubbage knew when the initial charges were laid that there was no prospect for success and they were simply laid whilst the NCC "looked to formulate its case", I consider the submission misguided. As a matter of fact, as noted, when the freezing order was sought by the DPP no charges had been laid, although, having regard to Mr Philp's affidavit in support of the application for a freezing order, charges were then contemplated. There is nothing in the evidence before me to suggest that Mr Philp or Mr Cubbage or the NCA knew or had any reason to believe that Mr Mansfield had not been engaged in activities contrary to Commonwealth laws, as set out in Mr Philp's initial affidavit. To the extent that Mr Mansfield states in his affidavits that, in the course of his dealings with Mr Cubbage during 2002 and 2003, and in particular when the initial three charges were withdrawn and two new charges laid, Mr Cubbage indicated that he, and by inference the NCA, did not consider there were prospects of success in respect of the three charges initially laid, that evidence is strongly disputed by Mr Cubbage. This is not an appropriate occasion to attempt to resolve that factual dispute.

114 As to the further allegation that the freezing order was simply served on Mr and Mrs Mansfield in an attempt to exert pressure on them to give the "applicant" information concerning Mr Kizon and other persons, there is again a misconception in the way the submission is put. The applicant for the criminal benefits declaration is the DPP for Western Australia. The former NCA and later the ACC were, at material times, Commonwealth law enforcement agencies interested in the activities of Mr Mansfield and persons he was considered to be associated with, including Mr Kizon. That, in the course of their investigations following the service of the freezing order, NCA and, later, ACC officers, including Mr Cubbage, may have interviewed Mr Mansfield concerning certain activities of Mr Kizon is irrelevant, in my view, in the circumstances of this case, to the question whether the freezing order was served for an improper purpose.

115 There is nothing in the evidence before me to suggest that the freezing order was served to exert pressure upon the Mansfields to give the DPP information about Mr Kizon. The simple fact is that the DPP appears to have taken action to meet the objectives of the Confiscation Act and, at material times, the NCA and the ACC have pursued their own investigations concerning the activities of persons such as Mr Mansfield. The fact that there were contemporaneous proceedings and inquiries does not mean that the service of the freezing order on the Mansfields should necessarily be seen as something done to achieve an improper or collateral purpose.

116 There is no evidence before me on this application to suggest that the predominant purpose of the application for a freezing order, or the DPP's application for criminal benefits declaration, or the subsequent service of the freezing order on Mr and Mrs Mansfield was to coerce or control the Mansfields in relation to the investigation that the NCA and later the ACC were undertaking, on the face of it, into certain activities of Mr Kizon or other persons or entities associated with him.

117 In these circumstances, the application of the Mansfields that the freezing order and the DPP's application for criminal benefits declaration against Mr Mansfield be permanently stayed and that a mandatory injunction be granted preventing the DPP from seeking any further freezing orders against them should be dismissed.

118 For the reasons set out above, I consider the Mansfields' application to strike out the freezing order made 12 July 2002 and the DPP's application for criminal benefits declaration dated 12 July 2002, should be dismissed.

Property Confiscation Act 2000

The Director of Public Prosecutions for Western Australia v Mansfield & Ors [2003] WASC 186

At a glance

Court

Decision date

Before

Catchwords

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Judgment (148 paragraphs)

The Director of Public Prosecutions for Western Australia v Mansfield & Ors [2003] WASC 186 (26 September 2003)

Parties

Legislation Cited (2)

Cases Cited (5)