DIRECTOR OF PUBLIC PROSECUTIONS v SAFFRON (NO 2) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MATHEWS J 30 May 1989, 30 May 1989 [1989] NSWCA 60 PRACTICE — stay — application for interlocutory relief orders made under Proceeds of Crimes Act 1987 (Cth) discharged by Court of Appeal — urgent motion for stay pending decision on whether to seek special leave to appeal to High Court of Australia — held: (1) A stay order is inappropriate as there is no order the execution of which the Court must stay; (2) The appropriate relief, if any, is injunction upon appropriate undertakings as to damages which were proffered; (3) The grant of such relief should not be made in the circumstances against corporations not party to the motion without affording them an opportunity to be heard; (4) As no prejudice was claimed by the opponent relief by injunction should be given for 4 days to permit the DPP to secure advice and make a decision on whether or not to seek special leave to appeal; (5) But (semble) the grant of further relief by the Court of Appeal might not be appropriate in order to avoid frustrating the utility of the fruits of the judgment won by the opponent and having regard to the approach taken by the High Court itself to the provision of relief pending an application for special leave to appeal. Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681, 685; John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510; Halabi v Westpac Banking Corporation (No 2), Court of Appeal, unreported, 8 February 1989; (1989) NSWJB 48; Edelsten vy Ward (No 2) (1988) 63 ALJR 346; Grassby v The Queen (1989) 63 ALJR 348 referred to. Proceeds of Crimes Act 1987 (Cth). Mathews J This morning the Court delivered its reasons in an appeal concerningthe present parties. It made orders granting leave to the opponent to appeal out of time, granting leave to appeal, ordering that the appeal be allowed and setting aside orders made by Mathews J on 16 February 1989. Her Honour's orders, made pursuant to the Proceeds of Crime Act 1987 (Commonwealth) (the Act), were directed to the opponent and several companies with which it was suggested he, or property under his control, had association. The Court unanimously held that, by reason of the provisions of the Act her Honour's orders were misconceived and had to be set aside. That is what the Court ordered. A late application for a stay contemplating a High Court appeal The Director, the present claimant, was not present in Court this morning when the judgments were handed down and the orders made. No stay of the operation of the orders of the Court or other relief was then sought. The explanation given for this absence was that no notice was given to the Director of the listing of the appeal for judgment. Although there is some uncertainty about this, I must assume that the absence of the Director was because of some confusion either in the Registry of this Court or in his office. As soon as possible after learning of the orders of the Court, the Director moved the Court by motion. This has been returned instanter before me exercising the powers of the Court of Appeal pursuant to s46 of the Supreme Court Act 1970. In the terms of the motion, it sought a stay of the execution of the orders of the Court. 2 UNREPORTED JUDGMENTS Clearly, the motion is misconceived in its terms. The order of the Court was to the effect that the application of the Director before Mathews J be dismissed. Accordingly, as was properly acknowledged by counsel for the Director, more than a stay is required. Some positive relief is necessary if the purposes of the Director are to be achieved. Those purposes are to take advice on the reasons for judgment of this Court, consider an application for special leave to appeal to the High Court of Australia if so advised to seek special leave and to be protected as to the subject matter of the litigation and the utility of the application in the meantime. Recent authority of the High Court on such stays The course which this Court has adopted in respect for applications for stays or for associated relief was traced by me recently in the decision of the Court in Halabi v Westpac Banking Corporation (No 2), Court of Appeal, unreported, 8 February 1989. In that case Mr CA Sweeney QC urged upon the Court that, in its protection of the subject matter of applications for special leave to the High Court, this Court was adopting an approach more protective of the privileges of the applicant for special leave than the High Court itself adopted. Mr Sweeney had reason to know. He is recorded as counsel for the unsuccessful application for a stay in Edelsten v Ward (No 2) (1988) 63 ALJR at 346. That decision is just to hand. In it, Brennan J pointed out that the High Court's jurisdiction to stay proceedings, pending a special leave application, in order to preserve the subject matter of litigation is extraordinary and exceptional. It is not available simply to keep the matters in status quo until the resolution of the litigation. Review the authority of the Court of Appeal on such relief Being informed of the attitude taken to such application by at least one Justice of the High Court, I said in Halabi v Westpac Banking Corporation (No 2) this Court might need to reconsider the approach it had taken in John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR at 510 and in various other decisions of the Court which are referred to in Halabi. The approach of Brennan J is reflected to some extent in a companion decision of Mason CJ in Grassby v The Queen (1988) 63 ALJR at 348. Clearly, it would be undesirable for this Court, responding to the earlier observations of Brennan J in Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 685 and now providing stays in such cases to prove more willing to provide protection of the subject matter of litigation than is the High Court of Australia itself. Until Burgundy Royale this Court, as is notorious, virtually invariably declined applications for stays or other protection. It left the provision of such protection to the High Court itself. The Director, acknowledging that it is necessary to seek further orders, sought a continuance of the orders earlier made by Mathews J. He did so for the purpose of permitting the taking of advice. Mr Barker QC, appearing for the opponent, indicated that he could not point to any particular disadvantage which is client would suffer between now and Monday next when this motion would, in the ordinary course of events, be returned to the normal motion list of the Court. However, he pointed to the fact, as is recorded in my judgment in the appeal, that the whole utility of the appeal and the fruits of victory which have been secured by the opponent would be completely lost if the resolution of the present application, supporting the possible special leave application to the High Court were further delayed. Clearly, that should not occur. At least it should not occur by an order of this Court. URJ DIRECTOR OF PUBLIC PROSECUTIONS v SAFFRON (NO 2) (Mathews J) 3 In the light of the recent decisions of the High Court to which I have referred and to the remarks which were made in Halabi v Westpac Banking Corporation (No 2) I would not, for my own part, contemplate extending the order of protection beyond next Monday. However, it will be for the Court, as then constituted, to consider the matter in the light of the material placed then before it. As the companies which are defendants in the proceedings before Mathews J were not parties to the appeal, they are not parties before me now. They have not been served with the present motion. Even if they had been served, the motion does not seek positive relief against them. Accordingly, I would not be authorised (without first giving them the opportunity to be hard) to make orders against them. I therefore will not make any such orders. If it is necessary to continue the orders against them, the matter can be returned promptly before the Court pursuant to the liberty to apply. Orders: temporary relief only The orders which I make, for the reasons stated and in order to preserve the subject matter of the possible proposed application for special leave to appeal to the High Court and to permit advice to be given to the Director are: 1. That the opponent, whether acting by his servants, agents or as an employee, director or officer of any company or otherwise howsoever be restrained from disposing of or mortgaging or creating any manner of charge over or otherwise dealing with the properties described in items 1, 2, 3, 4 and 5 of the Schedule to the summons before Mathews J save that the opponent may enter into or complete any contract or other disposition with respect to the properties so described provided that the leave of a Judge of Appeal or of the Court of Appeal has first been obtained; 2. That the opponent, whether acting by his servants, agents or as an employee, director or officer of any company or otherwise howsoever, be restrained from disposing of or otherwise dealing with the shares held by" him in Nowsco Holdings Pty Ltd, Oswin Holdings Pty Ltd, Vendomatic Pty Ltd, Cloverdale Investments Pty Ltd, Cidrella Pty Ltd, Marshin Holdings Pty Ltd, Arcadia Securities Pty Ltd and PH (Electrical) Pty Ltd, save that the opponent may enter into or complete a contract or other disposition with respect to the said shares provided that the leave of a Judge of Appeal or of the Court of Appeal is first obtained; 3. Orders 1 and 2 shall continue in force until and including 4 pm on Monday, 5 June,1989 or until other earlier order of a Judge of Appeal or of the Court of Appeal; 4. Each party has liberty to apply to the Court on twenty-four hours notice; The time for the return of the motion before the Court of Appeal is abridged and the provisions of the Rules of Court in relation thereto are relaxed, to the intent that a motion for further relief, if taken out, may be returned before the Court of Appeal or a Judge of Appeal upon two hours notice to the opponent; 6. The costs of the motion shall abide the outcome of any application for special leave to appeal made to the High Court and if no such application is made or, if made, is unsuccessful the costs shall be paid by the claimant; and wm 4 UNREPORTED JUDGMENTS 7. The motion will be returned before the Court again on Monday 5 June 1989. Counsel for the Claimant: SJ Rushton 5 Solicitors for the Claimant: Director of Public Prosecutions Counsel for the Opponent: IM Barker QC and MJ King Solicitors for the Opponent: Lang Gellert Noonan and Wise