State of Queensland v Barram[2008] QCA 53

SUPREME COURT OF QUEENSLAND

HIS HONOUR:  On 12 February 2008 White J made orders under s 46 of the Criminal Proceeds Confiscation Act 2002 authorising the seizure and sale of four cars the subject of a restraining order made by McMurdo J on 30 March 2006.  It is sufficient for present purposes to refer to the vehicles as follows:

1. 2000 Ford Falcon sedan.
2. 1997 Ford Futura sedan.
3. 2005 Ford Falcon Typhoon sedan.
4. 1991 Toyota Soarer Coupe.

White J made orders authorising the Public Trustee to take possession of those four cars and directing it to sell them.  Her Honour also ordered that the proceeds of sale of those cars are taken to be restrained under the restraining order made by McMurdo J on 30 March 2006.

The applicant, who was represented by counsel at the hearing below, represented himself in this application for a stay of those orders.

In the hearing below the applicant's counsel conceded that the orders were appropriate, the grounds for such orders in s 46(4) of the Act having been made out.

On the evidence before the learned primary Judge that concession was appropriate.  That evidence showed that the applicant had provided the restrained Ford Typhoon as security for a loan from a lender, Cash Solutions (Aust) Pty Ltd trading as “1300 Cash 2 U”, in apparent breach of s 32(1) of the Act and of the restraining order.  There was also evidence which suggested that if the cars were merely stored until after trial the storage costs would exceed the value of the three older cars and the newer car, the 2005 Ford Typhoon, would depreciate in value before the trial.

On 5 March 2008 the applicant lodged a notice of appeal against the orders made by White J.  The only ground of appeal, as was confirmed by the applicant in this hearing, is that the appellant should have been given an adjournment to enable him properly to instruct his lawyers and to adduce affidavit evidence demonstrating that he had not offered the Ford Typhoon as security for a loan and that he had maintained and secured the cars properly.

On the same day, 5 March 2008, the applicant filed the application for a stay of execution which is before me today.  That application is not supported by any affidavit by the applicant or any other person.  At the end of the application for a stay the document includes a narrative upon which the applicant apparently would wish to rely in support of his application.  It suggests that had the applicant been given more time he could have improved his evidence in opposition to the making of the orders by White J to which I have referred.  Much the same submission was made by the applicant at the hearing of this application.

Before the learned primary Judge the applicant's application for an adjournment was put on the basis that he wished to call one or two witnesses and give evidence himself.  The evidence of a Mr McInnes was outlined in a document which became an exhibit.  It was apparently intended to support a case that the applicant had not offered one of his cars as security.  In fact the outline in the documentary exhibit established only Mr McInnes's lack of precise recollection about what was said or done in that respect.

The applicant's counsel below conceded, correctly in my respectful opinion, that this evidence, or proposed evidence, lacked utility.

The applicant's counsel below, when asked by the Court, was unable to identify any evidence that the applicant could give that would be probative in relation to the application for an adjournment.  In any event her Honour was seized of the evidence which was outlined before her Honour and it could not be said that her Honour failed to take it into account.

The first question to be considered in an application of this kind is whether the applicant has demonstrated an arguable case on appeal.  The learned primary Judge's decision to refuse an adjournment was a discretionary decision.  The discretionary exercise of refusing an adjournment will only be set aside on appeal if it appears that the Judge erred in law or that the result of the refusal of the adjournment was to do an injustice to one or other of the parties.  (See Sali v. SPC Limited [1993] HCA 47; (1993) 67 ALR 625).

The evidence on that issue before the learned primary Judge demonstrated powerful reasons for refusing the adjournment.

First, the applicant had been guilty of very significant delay, causing delay in the prosecution of the State's proceedings to forfeit the restrained property.  The State had applied for forfeiture on 30 March 2006.  On 4 May 2006 the applicant had consented to a direction that by 19 June 2006 he file an application, which he had foreshadowed, seeking to exclude property from forfeiture together with his supporting affidavits.  He did not comply with that order.

Instead an application under the wrong chapter of the Act was filed on 17 November 2006.  In about February 2006 the State asked the applicant's solicitors to file a valid exclusion application and the applicant's affidavits.  Again that did not occur.  Subsequently a letter was sent to the applicant's solicitors pursuant to r 444 of the Uniform Civil Procedure Rules 1999 seeking delivery of the exclusion material by 5 October 2007.

Because the applicant changed solicitors a further Rule 444 letter was sent to the applicant on 30 January 2008 seeking delivery of the relevant material by 31 March 2008.  It appears that the applicant still has not filed the material on which he would seek to rely in support of such an application.

Secondly, there were powerful reasons for thinking that the order was appropriate.  As a result of the applicant's delay, which I have mentioned, the trial is still some distance away.  It is estimated on behalf of the State that the matter will not proceed to trial for some eight to 12 months.  The State's evidence suggests the following:

1. A reasonable apprehension that in the light of the applicant's poor financial circumstances and his apparent inability to keep the vehicles preserved and free of charges, it was unlikely that the applicant could preserve the four cars as he is obliged to do under s 32(1) of the Act and under the order.
2. If those cars are not preserved their value by the time of the trial would be greatly diminished.
3. The registration of three of the cars had lapsed and that of the remaining car was due to lapse in the near future.
4. The applicant did not hold a current valid driver's licence.

Thirdly, the application was served in ample time before the hearing below.  It was served on 3 February 2008 returnable on 12 February 2008.  The hearing of the application was stood down on a number of occasions during the day on 12 February 2008 to enable the applicant to provide further instructions to his legal representatives and to obtain further evidence, the result of which I have mentioned.

In my respectful opinion, nothing has been demonstrated which suggest any reasonably arguable ground for interfering with the exercise of the primary Judge's discretion to refuse the adjournment.

The absence of any demonstration that there is a good arguable case on appeal is, of course, putting it conservatively, a consideration adverse to the exercise of this Court's discretion to grant the stay which the applicant seeks.  (See Croney v. Nand [1999] 2 Qd R 342 at 348, Kostopolous v. GE Commercial Finance Australia Pty Limited [2005] QCA 311 at 69 citing Asia Pacific International Pty Ltd v. Pure Valley Mushrooms Limited [1998] QCA 414 at 8; [1999] 2 Qd R 458 at 463 to 464).

There are further considerations adverse to the applicant's application for a stay.  During the hearing below the applicant did not inform the Court or the State, so the State's evidence suggests that one of the applicant's creditors had sold the restrained 1997 Ford pursuant to a lien to recover the cost of that creditor's repairs.

The applicant complained in the hearing here that the person who sold his car was not in fact a creditor.  Nevertheless, this evidence demonstrates a substantial basis for the State's concern that the applicant is either unwilling or unable to preserve the restrained cars free of charges in favour of others.

In addition, the applicant's delay in applying for a stay of execution is also a consideration adverse to his application.  In the period between when the orders were made in the Trial Division and the filing of the application for a stay the Public Trustee took possession of the three remaining cars, the 2000 Ford Falcon sedan, the 2005 Ford Falcon sedan and the 1991 Toyota Soarer coupe.  The Public Trustee organised repairs appropriate to the sale of those cars, as it had been directed, and incurred costs in doing so.  The costs are significant relevant to the apparent value of the cars.

Given the applicant's apparently perilous financial position, the erosion of equity in the cars by storage fees, and the evidence casting doubt on the applicant's willingness or ability to keep the cars free of charges and appropriately preserved, any order having the effect of returning the cars to the applicant or staying the sale might lead to those repair costs and other expenses being thrown away.

The applicant has not adduced any evidence which demonstrates prejudice to him as a result of the orders made below and certainly no prejudice which might conceivably outweigh the prejudice to the State if those orders are stayed.

For example, the applicant's material does not establish that the cars are income-earning assets.  On the contrary, as I have indicated, his driving licence was suspended for a period, in fact from 19th December 2007 until 18th March 2008 and, in any case, on the State's material, was issued in reliance on a falsified birth certificate. 

Further, the evidence demonstrated that three of the cars were unregistered.  There is no evidence that any of the cars are income producing.

If the sale of the cars goes ahead then the proceeds will, of course, be restrained under the restraining order made by McMurdo J on 30 March 2006 so that the proceeds will be available to the applicant if it turns out that the orders, with hindsight, ought not to have been made.

The applicant complained that nevertheless he would be prejudiced because the cars would, in his view, be sold at an undervalue.  There is, however, no evidence supporting any such complaint. 

In my opinion the discretionary factors very much favour refusal of this application for a stay.  The application is refused.

HIS HONOUR:  I order that the applicant pay the respondent's costs of the application.