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  • Unreported Judgment

Ogle v Goldfinger Enterprises Pty Ltd

 

[2007] QSC 25

 

SUPREME COURT OF QUEENSLAND

  

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

16 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2007

JUDGE:

Mackenzie J

ORDER:

  1. That the application be dismissed.
  2. That the applicant pay the costs of and incidental to the application of the first and second respondents.

CATCHWORDS:

Criminal law – Jurisdiction, practice and procedure – Judgment and punishment – Orders for compensation, reparation, restitution, forfeiture and other matters relating to disposal of property – Forfeiture or confiscation –  Other matters – Where applicant’s property restrained under the Criminal Proceeds Confiscation Act 2002 (Qld) – where applicant sought declaration that monies borrowed were proceeds of drug offences – where applicant had not sought exclusion of the property from the restraint imposed

Criminal Proceeds Confiscation Act 2002 (Qld) s 4 (2)(b), s 28(3)(b), s 31(1)

COUNSEL:

Applicant in person

J Devery for the first respondent

D A Osbourne for the second respondent

SOLICITORS:

Applicant in person

Bennett and Devery Lawyers for the first respondent

The Director of Public Prosecutions (Queensland) for the second respondent

  1. MACKENZIE J:  This is an application, drafted by the applicant in person which seeks a number of kinds of relief which seem to derive from the circumstances surrounding a loan he received from the respondent.
  1. The action in which the present application has been brought seeks declarations and orders against Goldfinger and the State of Queensland, the effect of which would be to have the original loan agreement with Goldfinger and the transactions founded upon it declared void ab initio, a declaration as to the amount the applicant owed to Goldfinger, and damages.  The action is effectively stalled because the applicant has not taken the next step required of him to progress it.
  1. The applicant summarised the purpose of the application as being to obtain a declaration that he did borrow “drug money”. He believed that such a declaration would bring him under the Criminal Proceeds Confiscation Act 2002.  He referred to an object of the Act, that is to say, protection of property honestly acquired by persons innocent of criminal activity from forfeiture and other orders affecting property (s 4(2)(b)).  He said that he was being frustrated in applying under the Criminal Proceeds Confiscation Act 2002, as I understand it, because he was required to prove that the money was proceeds of drug offences.
  1. Pursuant to s 28(3)(b) and s 31(1) of the Criminal Proceeds Confiscation Act 2002 an order was made on 10 January 2003 restraining, inter alia, the following property:

“Debt in the amount of $454,880 owed by Donald Ogle together with accrued interest or the balance owing in respect of the debt and accrued interest.”

The former of the sections allows the State of Queensland to apply for a restraining order in respect of property other than that of a “prescribed respondent”, that is, other than that of a person suspected of having engaged in serious crime related activity.  The latter of the sections requires the Supreme Court to make a restraining order if satisfied that there are reasonable grounds for the suspicion on which the application is based. 

  1. The restraining order itself is made upon evidence of reasonable grounds for suspicion (s 31(1)). It is not necessary to prove finally the character of the property restrained. That, however, is necessary if an application for a forfeiture order is made. It may conveniently be noted also that the Criminal Proceeds Confiscation Act 2002 permits a person other than a prescribed respondent whose property is restrained under a restraining order to apply to amend the order to exclude the applicant’s property from the order.
  1. The applicant has made no application for an exclusion order. It may also be noted that among the correspondence generated in relation to the action and exhibited to an affidavit in the present application is a letter from the DPP which reminds the applicant that the court was informed on one occasion during an interlocutory hearing that “the State does not allege that you are involved in the serious crime related activity surrounding this matter”. 
  1. That does not settle the issue of whether the money borrowed by the applicant was the proceeds of crime, which may be an issue in the existing proceedings against the first respondent and the State of Queensland and which also underlies any proceedings for forfeiture that may need to be pursued. Having said that, it seems appropriate to leave that issue to be determined at trial and/or in the forfeiture proceedings if it needs to be, on the whole of the evidence. That is not an exercise can be done on an application of this kind.
  1. The first relief sought in the present application is not easily understood since the underlying proceedings have been begun by the applicant. With regard to the second, third and ninth paragraphs, it was open to the applicant to seek exclusion of the property from the restraint imposed on it, but he has not done so. If he wishes to affect the order in which the existing proceedings and any forfeiture proceedings are heard, as he does in the eighth paragraph in the present application, he should consider whether he ought to seek relief available under the Criminal Proceeds Confiscation Act 2002. The other paragraphs seem to be consequential on findings that will need to be made on evidence; these proceedings are inapt to resolve them.
  1. A declaration is a discretionary remedy. In the circumstances I am satisfied that there is no justification for giving the relief in the terms sought by the applicant insofar as it is sought by way of declaration. To the extent that substantive relief is sought, it cannot be given within the confines of the present application.

The orders therefore are:

  1. That the application be dismissed.
  1. That the applicant pay the costs of and incidental to the application of the first and second respondents.
Close

Editorial Notes

  • Published Case Name:

    Ogle v Goldfinger Enterprises Pty Ltd

  • Shortened Case Name:

    Ogle v Goldfinger Enterprises Pty Ltd

  • MNC:

    [2007] QSC 25

  • Court:

    QSC

  • Judge(s):

    Mackenzie J

  • Date:

    16 Feb 2007

Litigation History

No Litigation History

Appeal Status

No Status