Fewings v The State of Queensland [2007] QSC 330

SUPREME COURT OF QUEENSLAND CITATION: Wayne Malcolm Fewings v The State of Queensland [2007] QSC 330 PARTIES: WAYNE MALCOLM FEWINGS (Applicant) v THE STATE OF QUEENSLAND (Respondent) FILE NO/S: S9574 of 2007 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court DELIVERED ON: 6 November 2007 DELIVERED AT: Brisbane HEARING DATE: 6 November 2007 JUDGE: Byrne J ORDER: It is declared that: 1. The restraining order made on 4 December 2004 in Supreme Court Proceedings No BS11202 of 2003 as varied is no longer in force. It is ordered that: 2. Caveat No. 709447841 be removed from the Land Registry. 3. The respondent pay to the Applicant his costs of and incidental to the application to be assessed on the standard basis. CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – CONSTRUCTION WITH REFERENCE TO CONSEQUENCES – WHETHER APPROACH IS CONSISTENT WITH THE OBJECTS OF THE LEGISLATION – when an application is lodged outside the 28 day period mentioned in section 36(2) – when no extension had been ordered under section 54 – whether the restraining order remained in force Criminal Proceeds Confiscation Act 2002, s 4; s 28(3)(a)(iii); s 31(1); s 32(c); s 36(1); s 36(2); s 54 -- 1 of 7 -- COUNSEL: P J Davis SC, with him EJ Longbottom, for the Applicant. J B Rolls for the Respondent. SOLICITORS: Herdlaw Solicitors for the Applicant. Office of the Director of Public Prosecutions for the Respondent. -- 2 of 7 -- SUPREME COURT OF QUEENSLAND [2007] QSC 330 CIVIL JURISDICTION BYRNE J No BS9574 of 2007 WAYNE MALCOLM FEWINGS Applicant and THE STATE OF QUEENSLAND Respondent BRISBANE ..DATE 06/11/2007 ORDER -- 3 of 7 -- HIS HONOUR: On 4 December 2003, Mullins J ordered that "Under section 28(3)(a)(iii) and 31(1) of the Criminal Proceeds Confiscation Act 2002 (the "Act") none of the property of Wayne Malcolm Fewings ("the restrained property") shall be dealt with by any person. It is not in contest that this order is a "restraining order" within the meaning of Division 2 of Part 3 of the Criminal Proceeds Confiscation Act 2002. The essential question now is whether the restraining order remains in force. By section 36(1) of the Act, "A restraining order is in force for 28 days after it is made." Section 36(2), however, prescribes conditions in which the order may survive the expiration of that 28 days. Relevantly, for present purposes, these are: "(2) if- (a) before the end of the 28 days, an application for either or both of the following is made but the application has not been decided- (i) a forfeiture order for the restrained property; (ii) a proceeds assessment order against a person whose property is restrained under the restraining order; or ... (c) the order continues in force because of an order of the Supreme Court under section 54." An application for a forfeiture order was made in respect of the applicant's property within the 28 days. An application for a proceeds assessment order against him was also made; but not until after the 28 day period had expired. By order of this Court, the forfeiture application has been dismissed. -- 4 of 7 -- It is in these circumstances that the applicant contends that the restraining order is no longer in force. The State does not suggest that the restraining order could have survived the dismissal of the forfeiture proceedings had the proceeds assessment application not been on foot when the forfeiture proceedings terminated: understandably so. Rather, the State's contention is that the subsistence of the proceeds assessment proceedings sufficed to sustain the continuing operation of the restraining order despite the termination of the only pertinent proceeding commenced within the 28 day period mentioned in section 36(2), and notwithstanding that no extension has been ordered under section 54, which provides: "(1) This section applies if, while a restraining order is in force over property, the Supreme Court dismisses an application for- (a) a forfeiture order for the property; or (b) a proceeds assessment order against the person whose property is restrained under the restraining order. 2. The Supreme Court may- (a) if the Court considers it appropriate, make an order extending the operation of the restraining order for a stated period or in stated circumstances; or (b) make another order the Court considers appropriate about the operation of the restraining order. 3. An order under subsection (2) may be made to take effect immediately, at a stated time, or when a stated event happens." It is a curiosity that section 54 envisages that an extension may only be granted when both the "restraining order is in force" and the Court has dismissed the forfeiture order -- 5 of 7 -- - to mention the relief of matters in this case. For it is difficult to see how the order could remain in force if the only proceeding connected with it had come to an end. Nonetheless, the purpose of the section sufficiently emerges: viz, before the relevant principal proceeding - here the forfeiture claim - is dismissed, the Court may extend the operation of the restraining order despite dismissing an application for the principal relief. Such an extension might be justified by several considerations, including, for example, an extant proceeds assessment application that remained to be determined. And, by section 32(c), an extension under section 54 would mean that the restraining order continued in effect. But no such order has been obtained here. The consequence is that the restraining order is not continued in operation by section 36. It is therefore no longer in force. The State contends that the legislative scheme of the Act is that property the subject of a restraint remains so affected whilst there is on foot any application under the Act provided that one of those applications is brought within the time contemplated by section 36. However, read together, sections 36 and 54 require a different interpretation of the Act. Section 36 attaches obvious significance to commencing, within 28 days, a forfeiture or proceeds assessment proceeding. Where, as here, the pertinent surviving proceeding is not commenced within that 28 days, the restraining order expires unless its operation is extended by section 54. This approach is not inconsistent with the objects of the legislation stated in section 4. An extension pursuant to section 54 may be sought where one of two principal proceedings is dismissed or where there is only one principal proceeding on foot. And there is always the prospect of an application for a new restraining order - interlocutory relief after all - in connection with the surviving proceeding or a proceeding of that nature which may be imminent. -- 6 of 7 -- So the applicant has established an entitlement to a declaration that the restraining order made in December 2003 has ceased to have effect. Consequential relief for removal of a caveat lodged pursuant to the restraining order in respect of real property is not resisted. I will hear the parties with respect to the form of order. ... ----- -- 7 of 7 --