Supreme Court of WA|2004-06-02|Before: Miere J

The Director of Public Prosecutions for Western Australia v Mansfield & Ors [2004] WASC 116 (2 June 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- MANSFIELD & ORS [2004] WASC 116

MATTER : Sections 15, 41, 57 and 79 of the Criminal Property Confiscation Act 2000 (WA)

BETWEEN : THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Criminal law - Criminal Property Confiscation Act 2000 - Freezing order - Criminal benefits declaration - Whether an offence against the Corporations Law or the Corporations Act is a "confiscation offence"

Application for summary judgment - Whether action frivolous or vexatious - Jurisdiction to bring action - Validity of Criminal Property Confiscation Act 2000 - Section 109 of the Commonwealth Constitution

Standard of Persuasion - No reasonable cause of action - Frivolous or vexatious - Abuse of process - Argument - Whether action so obviously untenable it cannot succeed

Jurisdiction to bring action - Federal Jurisdiction - Whether DPP has power to commence action - Whether Corporations Law continues as part of the law of Western Australia - Meaning of "equivalent" - Whether application attracts exercise of Federal jurisdiction

Validity of Criminal Property Confiscation Act 2000 - Extraterritoriality - Real or remote connection between subject matter of legislation and the State - Property within Western Australia

Section 109 of the Commonwealth Constitution - Concurrent operation - Covering the field - "Operational inconsistency"

Australian Broadcasting Commission v Industrial Court (SA) [1977] HCA 51; (1977) 138 CLR 399

Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1

Carter v Egg Pulp Marketing Board [1942] HCA 30; (1942) 66 CLR 557

Clyde Engineering Co Ltd v Cowburn (Cowburn's case) [1926] HCA 6; (1926) 37 CLR 466

Durham Holdings Pty Ltd v State of New South Wales (2001) 205 CLR 399

Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986

Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457

R v Duncan; Ex parte Australian Iron & Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535

Cram, Re; Ex parte NSW Colliery Proprietors Assoc Ltd [1987] HCA 28; (1987) 163 CLR 117

University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447

Victoria v Commonwealth (Kakariki/Shipwrecks case) [1937] HCA 82; (1937) 58 CLR 618

1 LE MIERE J: The respondent has applied by chamber summonses dated 26 November 2003 for summary judgment and/or to strike out the amended statement of claim and to strike out the freezing order dated 12 July 2002.

2 On 12 July 2002, McKechnie J made a freezing order under subs 43(3) of the Criminal Property Confiscation Act 2000 (WA) (the "CPC Act"). The order froze property including bank accounts in the name of the respondent, bank accounts in the name of the respondent and his wife, real property registered in the name of the respondent and his wife, motor vehicles, shares, personal property and property owned or controlled by a number of corporations. That same day the Director of Public Prosecutions for Western Australia (DPP) filed an application by notice of motion for a criminal benefits declaration, pursuant to s 15 of the CPC Act. The notice of motion sought a declaration that the respondent had acquired a criminal benefit and specifying, pursuant to s 18(2)(b) of the CPC Act, the assessed value of the criminal benefit.

3 On 9 August 2002, the respondent filed an objection to the confiscation of the frozen property pursuant to s 79(1) of the CPC Act. At the same time, the respondent filed a chamber summons to set aside the freezing order.

4 On 14 August 2002, the respondent was charged with three Commonwealth offences: defrauding the Commonwealth, conspiracy to defraud the Commonwealth and money laundering. On the same day, objection proceedings were commenced by J Kizon, the Fitzroy All Trust and E Dharma, pursuant to s 79(1) of the CPC Act.

5 On 22 August 2002, the respondent's application to set aside the freezing notice was adjourned sine die.

6 On 27 August 2002, the DPP's application for a criminal benefits declaration was adjourned sine die by consent.

7 On 14 November 2002, the Fitzroy All Trust commenced proceedings against the respondent by writ of summons in respect of certain of the property frozen by the freezing order.

8 On 14 February 2003, the three Commonwealth charges against the respondent were withdrawn and two charges of obtaining a financial advantage by deception under s 134.2 of the Criminal Code Act 1995 (Cth) were instead laid against him. The respondent pleaded guilty to these offences. The matter was adjourned to 8 April 2003 for a sentencing hearing. On 8 April 2003, the sentencing hearing was adjourned to 16 May 2003.

9 On 15 April 2003, by consent, Master Newnes ordered summary judgment against the respondent in the proceedings brought against him by the Fitzroy All Trust.

10 On 1 May 2003, the respondent filed a chamber summons seeking to strike out the freezing order and the DPP's application for a criminal benefits declaration on the grounds of want of prosecution and/or and abuse of process.

11 On 21 July 2003, McKechnie J made programming orders with respect to the DPP's application for a criminal benefits declaration. McKechnie J ordered that the application for criminal benefits declaration and the objections of the first objectors proceed by way of pleadings and be heard together. His Honour made orders for the filing of a statement of claim and defence.

12 On 19 August 2003, the DPP filed a statement of claim. By par 8 of this statement of claim, the DPP alleged that the respondent had contravened subs 1002G(2) of the Corporations Law of Western Australia (the Corporations Law) and by s 1311 of the Corporations Law each of those contraventions was an offence pursuant to the Corporations Law. The DPP further pleaded that each of the offences was a confiscation offence within the meaning of s 141 of the CPC Act and that the respondent was involved in the commission of confiscation offences within the meaning of par 16(1)(b) of the CPC Act.

13 On 8 September 2003, Wheeler J dismissed the second objector's application to set aside the freezing order with respect to certain property.

14 On 18 September 2003, by consent, Hammond DCJ gave leave to the respondent to withdraw his pleas of guilty to the two Commonwealth deception charges. Those charges are yet to be dealt with.

15 On 19 September 2003, the respondent filed a defence. The respondent pleaded, amongst other things, that s 1002G of the Corporations Law is not an offence against a law in force in Australia as required by s 141 of the CPC Act.

16 On 26 September 2003, Barker J dismissed the respondent's application to strike out the freezing order and the DPP's application for a criminal benefits declaration on the grounds of want of prosecution and/or an abuse of process.

17 On 30 October 2003, the DPP filed an amended statement of claim.

18 On 25 November 2003, the respondent filed a defence to the DPP's amended statement of claim.

19 In his amended statement of claim, the DPP alleges that the respondent engaged in acts in relation to a company called My Casino Ltd that may broadly be described as insider trading. The amended statement of claim then goes on to plead as follows.

20 Paragraph 8 pleads that the alleged acts of the respondent were a contravention of subs 1002G(2) of the Corporations Law.

21 Paragraph 9 pleads that by s 1311 of the Corporations Law, each of the alleged acts "was and is" an offence pursuant to the Corporations Law.

22 Paragraph 9A pleads that by reason of the matters pleaded in pars 8 and 9, the respondent incurred a criminal liability under the Corporations Law.

23 Paragraph 9B pleads that by reason of s 6 of the Corporations (Ancillary Provisions) Act 2001 (WA) (the Corporations (Ancillary Provisions) Act), ss 1002G and 1311 of the Corporations Law ceased to operate of their own force in respect of the respondent's acts on 15 July 2001. 15 July 2001 is the commencement date of the Corporations Act 2001 (Cth) (Corporations Act) and related legislation. On 15 July 2001, the Corporations Act, in effect, replaced the Corporations Law. Generally speaking, the Corporations Law ceased to have effect as from 15 July 2001. I will refer in greater detail later to the legislative scheme by which the Corporations Act, in practical terms, replaced the Corporations Law.

24 Paragraph 9C pleads that ss 1002G and 1311 of the Corporations Law continue in force in respect of the alleged acts of the respondent after 15 July 2001 by virtue of subs 7(1) of the Corporations (Ancillary Provisions) Act and s 8 of the Acts Interpretation Act 1901 (Cth).

25 Paragraph 9D pleads that by virtue of the matters pleaded in par 9C, a legal proceeding or a suit for a remedy, in respect of the acts of the respondent may presently be instituted against the respondent pursuant to ss 1002G and 1311 of the Corporations Law as though the Corporations (Ancillary Provisions) Act had not been passed.

26 The amended statement of claim then goes on to plead that the respondent has incurred a liability under the Corporations Act.

27 In effect, the DPP pleads that the alleged acts of the respondent constitute offences under the Corporations Law and the Corporations Act. The DPP contends that the offences against the Corporations Law and, or alternatively, the offences against the Corporations Act, are a "confiscation offence" within the meaning of s 141 of the CPC Act and that the respondent was involved in the commission of confiscation offences within the meaning of par 16(1)(b) of the CPC Act.

28 The respondent has applied for summary judgment on the basis that the DPP's action is frivolous or vexatious and/or alternatively, that the respondent has a good defence on the merits. In the alternative, the respondent applies to strike out the words "and is" in par 9 of the amended statement of claim and the whole of pars 9C and 9D. By a further chamber summons, the respondent seeks an order that the freezing order be struck out as disclosing no reasonable cause of action or, alternatively, that any further proceedings relating to the property the subject of the freezing order be stayed as an abuse of the Court process.

29 The respondent bases his applications on three broad grounds. The first is that the DPP's application for a criminal benefit declaration involves the determination of a Federal matter by this Court in the exercise of its Federal jurisdiction and the DPP does not have the authority to prosecute such an application.

30 The second ground is that the CPC Act is invalid because the foundation for the freezing order depends on the respondent's alleged involvement in the commission of a Commonwealth offence and the connection between the relevant provisions of the CPC Act and the "peace, order and good government" of Western Australia is too remote.

31 The third ground is that, assuming that the Parliament of Western Australia had power to enact the CPC Act, it is inoperative due to the existence of the Proceeds of Crimes Act (2000) (Cth) or its predecessor, the Proceeds of Crime Act (1987) (Cth) by virtue of s 109 of the Commonwealth Constitution.

32 In their written submissions, counsel for the respondent raised a fourth ground of attack on the validity of the CPC Act. The respondent submitted that the CPC Act is invalid on the basis that it is inimical to fundamental democratic and common law rights. However, on the hearing of the application, the respondent withdrew that argument.

33 Order 16 r 1 provides that the Court may order that judgment be entered for the defendant if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily.

34 Senior counsel for the respondent submits that the Court should summarily dispose of the DPP's notice of motion for a criminal benefits declaration as frivolous or vexatious in point of law because it is so obviously untenable that it cannot possibly succeed.

35 The power given by the Rules to enter judgment for the defendant makes express provision for what is, in any event, the Court's inherent jurisdiction to protect its process from abuse by summarily disposing of an action as frivolous or vexatious in point of law if it is so obviously untenable that it cannot possibly succeed: Burton v President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92. However the power to order summary judgment should be exercised with great care, and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99. A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for trial in the ordinary way, and once it appears that there is a real question, whether of fact or law and the rights of the parties depend upon it, it is not competent for the Court to dismiss the action as frivolous or vexatious and an abuse of process: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91.

36 The respondent also seeks orders that the freezing order and the notice of motion be struck out pursuant to O 20 r 19. Order 20 r 19 empowers the Court to strike out any pleading, or anything in any pleading, on the grounds that it discloses no reasonable cause of action or it is frivolous or vexatious or it is otherwise an abuse of the process of the Court.

37 The rule is intended to apply only to cases which are really not arguable. Great care must be exercised to ensure that the plaintiff is not improperly deprived of his opportunity for the trial of his case. However, the rule should not be reserved for those cases where argument is unnecessary to show the futility of the plaintiff's claim. Argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot succeed: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130.

38 Senior counsel for the respondent submits that the DPP's notice of motion, or alternatively the words "and is" in par 9 of the amended statement of claim and the whole of pars 9C and 9D should be struck out on the ground that they are obviously untenable and cannot possibly succeed. Senior counsel further submits that the freezing order should be struck out because the DPP's notice of motion for a criminal benefits declaration is untenable and cannot possibly succeed.

The Argument that the DPP does not have Power to Bring Proceedings

39 The respondent's first argument is that the proceeding that is being brought by the DPP is a proceeding being brought within the Federal jurisdiction of this Court and it is beyond the power of the DPP to commence or continue the proceeding.

40 The first plank in the respondent's argument is that after 15 July 2001, ss 1002G and 1311 of the Corporations Law ceased to be in force as part of the law of Western Australia. That is contested by the DPP. The issue between the parties turns on the construction of subs 7(2) of the Corporations (Ancillary Provisions) Act and s 1400(2) of the Corporations Act.

41 The Corporations (Ancillary Provisions) Act formed part of the legislative package relating to the corporations legislation enacted by the Commonwealth and the States following references of matters relating to corporations made by the States under s 51(37) of the Commonwealth Constitution. The Western Australian reference was made under the Corporations (Commonwealth Powers) Act (2001) (WA). That Act referred to the Commonwealth Parliament certain matters relating to corporations, corporate regulation and financial products and services. The Commonwealth enacted, under the powers conferred by these references and other powers available to it, the Corporations Act and the Australian Securities and Investments Commission Act (Cth). The Corporations (Ancillary Provisions) Act, together with the Corporations (Commonwealth Powers) Act and other legislation made up the legislative package needed in Western Australia for the new corporations arrangements. The purpose of the Corporations (Ancillary Provisions) Act is to enact ancillary provisions, including transitional provisions, relating to the new corporations legislation.

42 Part 2 of the Corporations (Ancillary Provisions) Act is concerned with transitional provisions. Section 6 provides that the national scheme laws, which includes the Corporations Law, operate of their own force only in relation to matters arising before the beginning of the new corporations legislation, ie, 15 July 2001, or matters arising out of such matters to the extent that those matters are not dealt with by the new corporations legislation and other legislation not presently relevant.

43 Section 7 contains provisions dealing with the effect of s 6. The effect of subs 7(1) is that all accrued rights and liabilities under the national scheme laws, including the Corporations Law, are protected and legal proceedings in respect of those rights and liabilities may be commenced or continued. Subsection (2) provides relevantly that if by force of Ch 10 of the new Corporations Act a person acquires, accrues or incurs a right or liability in substitution for a pre-commencement right or liability the pre-commencement right or liability is cancelled at the relevant time and ceases at that time to be a right or liability under a law of the State.

44 The respondent says that by force of Ch 10 of the Corporations Act he has incurred a liability in substitution for a pre-commencement right or liability, that is, the liability under the Corporations Law, and hence the pre-commencement liability is cancelled and ceases to be a liability under a law of the State. The respondent says that he has incurred a liability in substitution for the pre-commencement liability under the Corporations Law by virtue of s 1400 of the Corporations Act.

45 Sections 1400 and 1401 of the Corporations Act create rights and liabilities which are equivalent to those that existed immediately before its commencement under the Corporations Law and those which were not in force immediately before commencement.

46 Subsection 1400(2) is important. I will set it out in full:

"[substituted rights or liabilities]

On the commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability), equivalent to the pre-commencement right or liability, under the corresponding provision of the new corporations legislation (as if that provision applied to the conduct or circumstances that gave rise to the pre-commencement right or liability)."

47 The respondent says that by subs 1400(2), he incurred a liability equivalent to the pre-commencement liability under the Corporations Law and that the new liability is in substitution for the pre-commencement liability under the Corporations Law. Therefore, the respondent argues, the pre-commencement liability under the Corporations Law is cancelled and ceases to be a right or liability under the law of Western Australia.

48 The DPP submits that the liability incurred by the respondent under subs 1400(2) of the Corporations Act is equivalent to the pre-commencement liability under the Corporations Law and is in addition to, not in substitution for that liability. Hence, the DPP says that subs 7(2) of the Corporations (Ancillary Provisions) Act does not cancel the respondent's liability under the Corporations Law.

49 In my view, the argument of the DPP is untenable and cannot succeed.

50 "Equivalent" in subs 1400(2) means equal in value, measure, force, effect and significance (Macquarie Dictionary). It is described in subs 1400(2) as being "the substituted right or liability". It is consistent with the scheme of the new corporations legislation that the liability created by s 1400(2) is in substitution for, not in addition to, the liability under the Corporations Law. There are no other relevant provisions in Ch 10 of the Corporations Act that create rights or liabilities in substitution for rights or liabilities under the Corporations Law before the commencement of the Corporations Act. In R v Corbett [2002] QCA 340, Davies JA, with whom Williams and Gerrard JJA concurred, held that the provisions of s 1401 of the Corporations Act, which in the present context are not materially different from the provisions of s 1400, created a liability equivalent to and in substitution for the liability they previously had. In my view, the same applies to s 1400.

51 The next plank in the respondent's argument is that the application brought by the DPP attracts the exercise of this Court's Federal jurisdiction. The respondent submits that in considering the application for a criminal benefits declaration, this Court is being asked by the DPP to find that it is more likely than not that the respondent was involved in the commission of the Federal offences. This, the respondent submits, requires the Court to determine whether the respondent contravened the requirements of s 1402G and/or s 1043A of the Corporations Act. The respondent submits that the DPP has thereby attracted the exercise of this Court's Federal jurisdiction.

52 The respondent submits that by reason of s 76(ii) of the Commonwealth Constitution and s 39(2) of the Judiciary Act 1903 (Cth), if, for the purpose of the proceeding, the Court is considering a matter that arises under a law made by the Commonwealth, Federal jurisdiction attaches by virtue of s 39(2) of the Judiciary Act.

53 The respondent submits that the DPP's application to this Court is a matter arising under a law made by the Commonwealth Parliament and that in hearing that matter this Court exercises Federal jurisdiction.

54 The DPP submits that his application for a criminal benefits declaration is not a matter arising under a law made by the Commonwealth Parliament, that is, the Corporations Act.

55 Counsel for the DPP, Mr Howard, referred me to an article by Allsop J entitled "Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002" (2002), 23 Australian Bar Review 29. Allsop J makes the point that a matter might arise under a law of the Parliament even though the form of relief for the cause of action does not owe its nature or existence to a Federal law. Even if the cause of action or form of relief is not created or provided for by Federal law, if a Federal statute is relied upon as giving a right sought to be vindicated or is the source of a defence asserted, then the matter in which the right or defence arises is a matter arising under Federal law. If, as a part of the process, a question under Federal law is to be determined, and that question is raised for the purposes of vindicating the position of someone involved in the controversy, then that will create a matter arising under Federal law.

56 The concept of "arising under" is not easy to apply to the particular circumstances of every case. In Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367, Gibbs J said at 416:

"I regard it as now settled for the matter cannot be said to arise under a law made by the Parliament within s 76(ii) simply because to decide the matter it is necessary to consider or construe the law. To adapt some of the language used in James v South Australia [1927] HCA 32; (1927) 40 CLR 1 (at 40), in relation to s 30 of the Judiciary Act, it may be said that a matter arises under a law made by the Parliament when a right, title, privilege or immunity is claimed under that law. A right, title, privilege or immunity may be claimed under a law, either because the law is the source of the right, title, privilege or immunity or because the right, title, privilege or immunity can only be enforced by virtue of the law."

57 Counsel for the DPP submits that in this case the DPP does not assert any right that owes its existence to Commonwealth law, nor does the DPP ask the Court to determine that the respondent is guilty of an offence against a Commonwealth law.

58 I am not persuaded that the DPP's position is so obviously untenable and cannot possibly succeed such that his application for a criminal benefits declaration should be summarily dismissed. It follows that the respondent's first ground of attack cannot succeed. However, I will go on to consider the remaining steps in the respondent's argument on this ground of attack upon the DPP's application.

59 The respondent next submits that the DPP does not have power to prosecute applications under the CPC Act that involve the determination of a Federal matter by this Court in the exercise of its Federal jurisdiction.

60 The respondent says that the DPP is purporting to exercise a Federal function and that it is beyond the power of the State Parliament to confer authority on the DPP to do so.

61 It may be accepted that it is not competent for the State Parliament to authorise the DPP to exercise Federal power in the absence of a conferral of power by the Commonwealth Parliament. However, the DPP submits that, even if the application for a criminal benefits declaration is a matter arising under a law of the Commonwealth Parliament, the DPP does not exercise Federal power, or carry out a Federal function, by bringing that application.

62 No authority has been referred to me that is directly on point. I am not persuaded that the argument of the DPP on this point is so clearly untenable or obviously bound to fail that the matter should be summarily disposed of.

63 I will now consider the respondent's second ground - the extraterritoriality ground. The Western Australian Constitution gives the State Legislature the power to make laws "for the peace, order and good government of the State".

64 It is clear that legislation of a State Parliament "should be held valid if there is any real connection - even a remote or a general connection - between the subject matter of the legislation and the State": Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507 at 518. This proposition has now twice been adopted in unanimous judgments of the High Court and should be regarded as settled: Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1 at 14; Port MacDonnell Professional Fishermens Association v South Australia [1989] HCA 49; (1989) 168 CLR 340 at 372; Mobil Oil Australia Pty Ltd v State of Victoria [2002] HCA 27; (2002) 211 CLR 1 at [48].

65 A law is valid if it operates on some circumstance which really appertains to the State: Pearce v Florenca (supra) per Gibbs J at 517; Union Steamship Co of Australia Pty Ltd v King (supra).

66 The respondent submits that the CPC Act is extremely wide in its reach. Mr Shirrefs SC submitted that it could enable this Court to consider a criminal benefits declaration against a resident of Victoria who, on holidays in Queensland, walked into a Seven-Eleven and stole a Mars bar. On the face of this legislation, submitted Mr Shirrefs, the State DPP is authorised to come before this Court and not only seek to get the Mars bar, which on the face of it has nothing to do with Western Australia, but freeze his entire property.

67 It is true that the CPC Act in terms operates in the widest possible way. Subsection 5(3) provides that the Act applies -

(a) to property in Western Australia; and

(b) to the fullest extent of the capacity of the Parliament to make laws with respect to property outside the State, to property outside Western Australia.

68 In an appropriate case it may be necessary to consider the validity of the Act insofar as it applies with respect to property outside Western Australia. However, that is not necessary in this case. The property frozen and the subject of the DPP's notice of motion is property in Western Australia. Paragraph 5(3)(a) of the Act makes the circumstances on which the Act operates to be confiscable property in Western Australia. In my view, it is at least arguable that the requirement for a relevant connection between the circumstances on which the legislation operates and the State is satisfied in this case.

69 I am not persuaded that on this ground the DPP's application is so clearly untenable and obviously bound to fail, that it should be summarily dismissed.

70 The third ground on which the respondent bases his applications is that by virtue of s 109 of the Commonwealth Constitution, the CPC Act is incapable of operating concurrently with the Proceeds of Crimes Act (2002) (Cth). Section 109 provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

71 For the purposes of s 109 the question of inconsistency is ordinarily determined by asking whether the Commonwealth law "covers the field", or, whether the State law would, if valid, "alter, impair or detract from the operation" of the Commonwealth law: Commonwealth of Australia v Western Australia [1999] HCA 5; (1999) 196 CLR 392 at [54].

72 The respondent submits that there is to be discerned from the Proceeds of Crimes Act (2002) (Cth) an intention on the part of the Parliament of the Commonwealth that its legislation should be an exclusive and exhaustive statement of the law on the topic with which it is concerned. The respondent says that the topic with which the Proceeds of Crimes Act (2002) (Cth) is concerned is the proceeds of Commonwealth crime.

73 Counsel for the DPP submits that s 15 of the Proceeds of Crimes Act (2002) (Cth) shows that the Commonwealth Parliament did not intend to cover the field in the sense that its legislation should be an exclusive and exhaustive statement of the law dealing with the proceeds of Commonwealth crime.

74 It would seem clear that were the Commonwealth DPP to exercise his powers under the Proceeds of Crimes Act (2002) (Cth) with respect to certain property and the DPP sought to exercise his powers under the CPC Act with respect to the same property, there would be direct inconsistency between the powers conferred on the Commonwealth DPP under the Proceeds of Crimes Act (2002) (Cth) and the powers conferred on the DPP by the CPC Act. Counsel for the DPP submits that that inconsistency would result from the inconsistent operation in the particular circumstances of the Commonwealth Act and the State Act, "operational inconsistency" as it is called: see Commonwealth of Australia v Western Australia (supra) per Gleeson CJ and Gaudron J at [61]. Counsel for the DPP submits that s 109 of the Commonwealth Constitution operates to render a State law inoperative only to the extent of its inconsistency with a law of the Commonwealth and only for so long as the inconsistency remains. There may be "operational inconsistency" between the Commonwealth Act and the State Act if and to the extent that the Commonwealth DPP exercises his powers under the Proceeds of Crimes Act (2002) (Cth) in relation to property that is the proceeds of Commonwealth crime at a time when the State DPP purports to exercise his powers under the CPC Act in relation to the same property. However that situation has not yet arisen. Thus, at the present time, there is no inconsistency between the CPC Act and the Proceeds of Crimes Act (2002) (Cth).

75 In my view, the arguments advanced by counsel for the DPP are not clearly untenable and obviously bound to fail.

76 I am not persuaded that the case for the DPP is so obviously untenable that it should be summarily dismissed.

77 For the reasons stated, the following paragraphs, or parts, of the amended statement of claim should be struck out:

(a) The words "and is" in par 9.

(b) The whole of par 9C.

(c) The whole of par 9D.

78 Otherwise, the applications by the respondent should be dismissed.

Property Confiscation Act 2000

Interpretation Act 1901

(Ancillary Provisions) Act 2001

The Director of Public Prosecutions for Western Australia v Mansfield & Ors [2004] WASC 116

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (112 paragraphs)

The Director of Public Prosecutions for Western Australia v Mansfield & Ors [2004] WASC 116 (2 June 2004)

Parties

Legislation Cited (6)

Cases Cited (23)