State of Queensland v Cannon (No 3)
[2011] QSC 307
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- Unreported Judgment
- State of Queensland v Cannon (No 3)[2011] QSC 307
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State of Queensland v Cannon (No 3)[2011] QSC 307
State of Queensland v Cannon (No 3)[2011] QSC 307
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | |
DELIVERED ON: | 19 October 2011 |
DELIVERED AT: | Brisbane |
HEARING DATES: | Written submissions 12 September 2011 and 5 October 2011 |
JUDGE: | Applegarth J |
ORDERS: | 1.Pursuant to s 78 of the Criminal Proceeds Confiscation Act 2002 (Qld), the respondent pay to the applicant the sum of $4,200,000, together with interest in the sum of $4,319,699 pursuant to s 47(1) of the Supreme Court Act 1995 (Qld). 2.The respondent pay the applicant’s costs of and incidental to the proceeding for a proceeds assessment order on the standard basis. |
CATCHWORDS: | CRIMINAL LAW – PROCEDURE – CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS – PECUNIARY PENALTY AND LIKE ORDERS – ASSESSMENT OF BENEFIT– where court assessed the value of the proceeds derived from the respondent’s illegal activity – where applicant seeks interest under the Supreme Court Act 1995 s 47(1) in addition to the assessed value of the proceeds derived from illegal activity – whether an application for a proceeds assessment order under s 78 of the Criminal Proceeds Confiscation Act 2002 is a “proceeding for the recovery of money” within the meaning of s 47(1) of the Supreme Court Act INTEREST – RECOVERABILITY OF INTEREST – OTHER CASES – where the applicant sought an award of interest pursuant to the Supreme Court Act 1995 s 47(1) – where the purpose of an award of interest is to compensate for a decline in the value of money over time – how the appropriate assessment of a decline in the value of money is to be measured in the circumstances. |
LEGISLATION: | Criminal Proceeds Confiscation Act 2002 (Qld) Supreme Court Act 1995 (Qld) |
CASES: | Cinema Plus Ltd v ANZ Banking Group Ltd (2000) 49 NSWLR 513, cited. Crisp & Gunn Cooperative Ltd v Hobart Corporation (1963) 110 CLR 538, cited. Director of Public Prosecutions v Walsh (1989) 98 FLR 175, cited. Maksimovic v Coshott (1987) 11 NSWLR 184, cited. State of Queensland v Cannon (No 2) m, considered. Victoria Workcover Authority v Esso Australia (2001) 207 CLR 520, cited. |
COUNSEL: | M D Hinson SC and J S Brien for the applicant S Shearer for the respondent |
SOLICITORS: | Director of Public Prosecutions for the applicant Caroll Fairon Solicitors for the respondent |
[1] On 19 August 2011 I gave the parties leave to make supplementary submissions on the issue of interest, or that I should assess the value of the proceeds derived from the respondent’s illegal activity having regard to the decline in the value of money between the time the proceeds were derived and the date the proceeds assessment order is formally made. The circumstances which gave rise to that order are explained in State of Queensland v Cannon (No 2).[1] The parties have now made written submissions.
[2] The applicant submits that an application under the Criminal Proceeds Confiscation Act 2002 (“the Act”) for a proceeds assessment order is a proceeding in respect of a cause of action “for the recovery of money” within the meaning of s 47(1) of the Supreme Court Act 1995. It relies upon Victoria Workcover Authority v Esso Australia[2] as authority for the proposition that the word “recovery” in such a statutory context relates to a proceeding in which a claim for money is made, as distinct from a claim for other specific relief. I accept that the word “recovery” in s 47(1) does not have the limited meaning of getting back into possession something lost or taken away.[3] It has a wider meaning, namely to obtain in a legal manner, including by action.[4] Accordingly, I find that the expression “any proceedings in respect of a cause of action ... for the recovery of money” in s 47(1) means a proceeding in which a claim for money is made, in contrast to declaratory relief and claims for specific forms of relief such as mandatory injunctions, charging orders and orders for specific performance.[5] It includes a claim for a money sum arising under a statute.[6] Section 47(1) applies to a proceeding in respect of a cause of action for a proceeds assessment order under the Act. The cause of action consists of the facts necessary to prove an entitlement to a proceeds assessment order.
[3] The purpose of a proceeds assessment order is to remove the financial gain associated with illegal activity. The Act creates a statutory liability to pay to the State the value of the proceeds of illegal activity, and that liability is enforced by an application for a proceeds assessment order.
[4] The applicant cites a footnote reference in Mason, Carter and Tolhurst, Restitution Law in Australia[7] as suggestive that legislation such as the Act provides for restitution following the commission of crimes. The learned authors make brief reference in that footnote to statutes providing for restitution following the commission of crimes, and note that such statutes are outside the scope of their work. The respondent accepts the applicant’s submission that the Act creates, in effect, a statutory liability to pay to the State the value of the proceeds of illegal activity, but contests that the obligation is a restitutionary obligation. He submits that the Act creates a confiscatory power, and does not speak in terms of a restitutionary obligation. He submits that a proceeding under the Act is not a claim in restitution.
[5] I do not consider that it is necessary or helpful to describe the cause of action as one for “restitution” or “confiscation”. My present task is to decide whether the proceeding is in respect of a cause of action for the “recovery of money”. I accept the applicant’s submission in reliance upon Victorian Workcover Authority v Esso Australia that it is.
[6] The applicant has made helpful supplementary submissions in support of the proposition that the purpose of an award of interest is to compensate for a decline in the value of money over time, and about the manner in which a decline in the value of money may be measured. The respondent does not contest these submissions and makes no submissions with respect to the decline in the value of money.
[7] I am persuaded that I should exercise the discretion to award interest pursuant to s 87(1). If I had concluded that s 47(1) did not apply, then I would have granted the applicant’s alternative application for leave to make a proceeds assessment order that relies upon s 82(2) of the Act. I addressed s 82(2) at paragraphs [13] – [16] of my previous judgment.
[8] One approach in measuring the decline in the value of money is to have regard to the Consumer Price Index.[8] The applicant has addressed the decline in the value of money by reference to the CPI All Groups Index for Brisbane, government bond rates and interest rates in relevant Practice Directions. It has undertaken calculations based upon my findings that between March 1999 and October 2000 the respondent derived proceeds valued at $3,428,000, and that between April 2001 and August 2001 he derived proceeds of $772,000. I exercise my discretion to award interest on the basis of the rate specified in relevant Practice Directions in force from time to time. The calculations made by the applicant were for the period to 3 September 2011. They calculated interest of $4,267,198. I consider that it is appropriate to award interest up to the date of this judgment and, accordingly, I have calculated interest for an additional one and a half months. This results in an award of interest of $4,319,699.
[9] Accordingly, in addition to a proceeds assessment order of $4,200,000 I will order that the respondent pay to the State of Queensland the sum of $4,319,699 as interest pursuant to s 47 of the Supreme Court Act 1995. I confirm the costs order made by me on 19 August 2011.
[10] The order of the Court will be:
1.Pursuant to s 78 of the Criminal Proceeds Confiscation Act 2002 (Qld), the respondent pay to the applicant the sum of $4,200,000, together with interest in the sum of $4,319,699 pursuant to s 47(1) of the Supreme Court Act 1995 (Qld).
2.The respondent pay the applicant’s costs of and incidental to the proceeding for a proceeds assessment order on the standard basis.
Footnotes
[1] [2011] QSC 245.
[2] (2001) 207 CLR 520 at 534-535 [31] – [32] and 538 [41].
[3] Compare in a different context the word “recover” in Cinema Plus Ltd v ANZ Banking Group Ltd (2000) 49 NSWLR 513 at 545 [121].
[4] Maksimovic v Coshott (1987) 11 NSWLR 184 at 187D which considered the word “recover” in the context of whether a solicitor was not entitled to recover costs in respect of a proceeding.
[5] Victorian Workcover Authority v Esso Australia (supra) at 538 [41].
[6] Crisp & Gunn Cooperative Ltd v Hobart Corporation (1963) 110 CLR 538 at 543.
[7] K Mason, J W Carter and G J Tolhurst, Restitution Law in Australia (Second ed, 2008, Lexis Nexis Butterworths) p 93 [225] (footnote 155).
[8] See for example DPP v Walsh (1989) 98 FLR 175 at 191.