DPP & Anor v Grimm [2012] NTSC 78

 

PARTIES:                                         The Director of Public Prosecutions

 

                                                         and

 

                                                         The Northern Territory of Australia

 

                                                         v

 

                                                         Grimm, Wolfgang

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

 

 

FILE NO:                                          56 of 2009 (20912076)

 

DELIVERED:                                   4 October 2012

 

HEARING DATES:                           28 & 30 August 2012

 

JUDGMENT OF:                              KELLY J

 

CATCHWORDS:

 

CRIMINAL LAW – Criminal Property Forfeiture Act (the “Act”) – restraining order made in relation to property on the basis that reasonable grounds to suspect property was crime used within the meaning of the Act – application not opposed – subsequent objection to the restraining order filed – inherent jurisdiction of the court to set aside the restraining order – can be set aside by a single judge if there is a material change in circumstances – can be challenged on the ground of an error by the judge by way of appeal to the Court of Appeal only – no requirement from the Act that value of the restrained property equate to the cost to the community of investigating and prosecuting the actual crime to which the restraining order relates – no material change in circumstances – no material non-disclosure – objection dismissed

 

 

Criminal Property Forfeiture Act s 3, s 10, s 11, s 43(2)(a), s 50, s 59, s 62

 

 

Director of Public Prosecutions (DPP) v Dickfoss (2011) 28 NTLR 71; [2011] NTSC 4; Director of Public Prosecutions (DPP) v Mattiuzo (2011) 29 NTLR 189; [2011] NTSC 60, followed

 

 

Burnett v Director of Public Prosecutions (DPP) (2007) 21 NTLR 39; [2007] NTCA 7; Director of Public Prosecutions (DPP) v Atkinson (2011) 212 A Crim R 241; [2011] NTSC 73; Director of Public Prosecutions (DPP) v Emmerson & Anor [2012] NTSC 60; Petroleum Co Ltd v Harper’s Garage (Stourport) [1965] 2 All ER 933; Regent Oil Co Ltd v J T Leavesley (Lichfield) Ltd [1966] 2 All ER 454, referred to

 

 

REPRESENTATION:

 

Counsel:

    Objector:                                      J Tippett QC

    Respondents:                                R Jobson

 

Solicitors:

    Objector:                                      Maleys Barristers and Solicitors

    Respondents:                                Solicitor for the Northern Territory

 

 

Judgment category classification:    B

Judgment ID Number:                       KEL 12021

Number of pages:                             19


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

DPP & Anor v Grimm [2012] NTSC 78

No. 56 of 2009 (20912076)

 

                                                     IN THE MATTER of objection proceedings pursuant to the Criminal Property Forfeiture Act between the Director of Public Prosecutions and Wolfgang Grimm

 

                                                     BETWEEN:

 

                                                     THE DIRECTOR OF PUBLIC PROSECUTIONS

                                                         First Respondent

 

                                                     AND:

 

THE NORTHERN TERRITORY OF AUSTRALIA

                                                         Second Respondent

 

                                                     AND:

 

                                                     WOLFGANG GRIMM

                                                         Objector

 

CORAM:     KELLY J

 

REASONS FOR JUDGMENT

 

(Delivered 4 October 2012)

 

[1]       On 6 April 2009 the DPP filed and served an application for an order under s 43(2)(a) of the Criminal Property Forfeiture Act (“the Act”) for a restraining order under the Act in relation to land owned by the objector, Mr Wolfgang Grimm, at 633 Mocatto Road, Acacia Hills (“the Land”), and a Volvo car registered in his name.

[2]       Mr Grimm was served with the application and supporting affidavit as required by the Act on 7 April 2009.  He elected not to contest the making of the restraining order and on 29 April 2009 then Chief Justice (BR) Martin made a restraining order in relation to that property on the ground that he was satisfied that there were reasonable grounds for suspecting that the property was “crime used” within the meaning of the Act.  The evidence in support of the application for the restraining order (in summary) was as follows:

(a)      The following stolen property had been found on the Land when police executed a search warrant: nine sounders (four hidden in a cut off 44 gallon drum underneath a covering of leaves in the front yard, two in the boot of the Volvo which was parked at the residence on the Land, and three in a pot near the front entrance of the residence); a chain saw, circular saw, sander, belt sander, nibblers and jack hammer, (found in a shed); another chain saw (in a sea container); a circular saw (behind the shed); a whipper snipper and generator (in a bore pump shed); a red welder (in a small tin shed); a flat screen television and a laptop (in the lounge room of the residence).  

(b)     A dinghy, trailer and three outboard motors were found on an adjoining block of land.

(c)     The value of the property located was $36,523.00.

(d)     This property had been stolen from a number of businesses in the Winnellie, Pinelands, Yarrawonga, Coolalinga and Stuart Park areas in a series of break-ins.  Large amounts of additional property had been stolen in those break-ins and had never been recovered.

(e)     Mark Thomas Tyday (“Tyday”) and Mark Jason Kuiper were arrested in relation to the break-ins.  Tyday is the nephew of Mr Grimm’s deceased wife, and was arrested and charged with various offences including 16 counts of stealing and 17 counts of unlawful entry.  

(f)      In his record of interview Tyday made admissions relating to delivering certain items to his uncle, Wolfgang Grimm.

(g)     Mr Grimm had pleaded guilty in the Court of Summary Jurisdiction to four charges of receiving stolen property – being the property found on his land on the execution of the search warrant.

(h)     In an interview with police, Mr Grimm admitted he had received that property, knowing it had probably been stolen, but said he had not sold any of it and had not profited from the receipt of the stolen goods.  He denied receiving other stolen property and on selling it or being a party to the break-ins in any way.

[3]       On 21 April 2009 Mr Grimm, by his solicitors, Maleys, filed an objection to the restraining order under s 59 of the Act.  The grounds of the objection were as follows.

“(a)    The property is neither crime used nor crime derived property.

(b)     In accordance with the will of my deceased wife her interest in both the real property and the motor vehicle passed equally to our five children.”

[4]       The ground relating to Mr Grimm’s wife having an interest in the property was not pressed, senior counsel for Mr Grimm conceding that as the Land had been held by Mr and Mrs Grimm as joint tenants, and as Mrs Grimm had died before the application for the restraining order was made, her interest in the land had passed to him by right of survivorship.  There was no evidence of any act which might have severed the joint tenancy before Mrs Grimm’s death.

[5]       Mr Grimm’s objection was accompanied by an affidavit, but it contained no evidence of any of the matters required by s 62 of the Act to be shown for an objection to succeed.  Accordingly, at a directions hearing on 17 May 2012 I made directions for a time table for the filing of further affidavit material by the objector by 6 July 2012 and any affidavits in reply by the respondent by 10 August 2012.  No further affidavit material had been filed by the objector by 21 August 2012 so on that date I gave the objector an extension of time to close of business on Thursday 23 August for the filing of affidavits. 

[6]       A further affidavit of Mr Grimm was filed on Friday 24 August.  It too contained no evidence of any of the matters required by s 62 of the Act to be shown for an objection to succeed.

[7]       At the hearing, senior counsel for the objector, Mr Tippett QC expressly abandoned any application to set aside the restraining order under s 62 of the Act and instead relied on what he said was the inherent jurisdiction of the court to set aside the restraining order in the circumstances. 

[8]       Mr Jobson, counsel appearing for the DPP, submitted that this application was misconceived.  He conceded that a single judge had the power to vary a restraining order made by another judge if, for example, the applicant could show there had been a material change in circumstances, but contended that a restraining order could only be set aside in the circumstances provided for in the legislation or, if it was contended that the making of the original order was vitiated by error, on appeal by the Court of Appeal.

[9]       Mr Tippett submitted that one judge of this court had the power under the inherent jurisdiction of the court to set aside a restraining order made by another single judge of the court in the same circumstances as a single judge might set aside an interlocutory injunction granted by another judge.  He relied on the following passages from the decision of Mildren J in DPP v Dickfoss:[1]

“Because this Court is a court of equity, and the legislature must have intended to take the Court as it finds it the Court may, … set aside an order without waiting for an objector to file an objection for reasons such as absence of jurisdiction, material non-disclosure and changed circumstances, or grant a stay for abuse of process at any stage of the proceedings.” (references omitted)

[10]     This passage, with which I respectfully agree, is authority for the proposition that the court’s power to set aside a restraining order made under the Act is not confined to the circumstances set out in the Act.  The inherent jurisdiction of the court to set aside such an order in appropriate circumstances remains.  However, Mildren J was not addressing the question of the circumstances in which the inherent jurisdiction was exercisable by a single judge.

[11]     Mr Tippett contended that a single judge of this court could set aside a restraining order made by another single judge if it were shown that the other judge had made a jurisdictional error.  He relied on the English decision of Regent Oil Co Ltd v J T Leavesley (Lichfield) Ltd[2] (“Regent Oil”).  In that case an interlocutory injunction had been granted restraining the defendant until trial from buying supplies of fuel from another supplier contrary to the provisions of a restrictive covenant in the supply agreement between the parties.  At the date the injunction was granted, it was assumed on the basis of a first instance decision in Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd[3] that the doctrine of restraint of trade had no place in commercial agreements which limited the restraint to a particular property, and that the restrictive covenant was therefore enforceable.  After the injunction had been granted, in two decisions of the Court of Appeal, it was held that the doctrine of restraint of trade does apply to such agreements and such a restrictive covenant is therefore unenforceable unless the party seeking to enforce it establishes that it is reasonable.  As there was no evidence of how long a restrictive covenant would need to be to protect the legitimate trading interests of the plaintiff, the judge hearing the application for a discharge of the injunction held:

“[I]f the plaintiff were today applying for interlocutory relief, I should be constrained reluctantly to refuse it ….  And I would have to hold that there ought not to be an injunction from today until the trial.  Taking the view that I do that the plaintiff has no built- in right to the continuance of an injunction which it has obtained after it has become apparent that it was founded on a decision which was wrong in law, I ought, in my view, to discharge the injunction, and this I do.”[4]

[12]     I reject the contention that Regent Oil is authority that one judge of this court can discharge an injunction given by another judge on the ground that the first judge had committed a jurisdictional error.  Regent Oil was a case of change of circumstances.  The injunction was rightly granted on the state of the law as it was then assumed to be.  When it became apparent that the law was otherwise, based on the two Court of Appeal decisions, the circumstances were no longer the same.  Had the application for an interlocutory injunction been made after the two Court of Appeal decisions, it would not have been appropriate to grant it:  the court therefore held that it was appropriate to discharge the injunction.  No error by the judge who granted the injunction was alleged.  Having said that, I do not want to be taken as necessarily agreeing that a single judge of this court could discharge an injunction given by another judge in similar circumstances.  It is not necessary for me to decide.

[13]     A decision of a judge of this court can only be challenged on the ground of an alleged error in the decision by means of an appeal to the Court of Appeal.  It is otherwise, it seems to me where what is alleged is not error on the part of the judge making the order but, for example, material non-disclosure by the applicant for the restraining order, or a material change in circumstances which would warrant the setting aside of the restraining order if it were an interlocutory injunction granted under the inherent jurisdiction of the Court.  In such circumstances, although one would normally expect the application to go before the judge who granted the injunction, if that is not possible another single judge can (and will) discharge the injunction.  It seems to me that, once one accepts the proposition for which Dickfoss is authority, namely that the court does have an inherent jurisdiction to set aside a restraining order in appropriate circumstances, then there is no reason why that jurisdiction ought not to be exercised by a single judge in the same circumstances in which a single judge can discharge an interlocutory injunction.  (In addition to this, of course, s 50 of the Act obliges the applicant who obtained a restraining order to make application to set the order aside if circumstances change such that the grounds for suspecting that the property is crime used (or crime derived) no longer exist.  I do not take this to preclude the respondent to the restraining order from making application to the court under the inherent jurisdiction to set the order aside on account of changed circumstances.)

[14]     The objector submitted that the judge granting the restraining order on 29 April 2012 lacked the jurisdiction to do so.  Counsel for the objector submitted that the combined effect of s 3 and s 10(2) of the Act was that the court’s power to restrain property on the ground that there were reasonable grounds to suspect that it was crime used was limited to property the total value of which was equal to the cost to the community of investigating and prosecuting the actual crime to which the restraining order relates.  He submitted further that, as there was no evidence before the Court as to the cost of these things in the instant case, there had been no jurisdiction to make the order.

[15]     Sections 3 and 10(2) are in the following terms:

Section 3: “The objective of this Act is to target the proceeds of crime in general and drug-related crime in particular in order to prevent the unjust enrichment of persons involved in criminal activities.”

Sub-section 10(2): “The property (real or personal) of a person who is involved or taken to be involved in criminal activities is forfeit to the Territory to the extent provided in this Act to compensate the Territory community for the costs of deterring, detecting and dealing with the criminal activities.”

[16]     Mr Tippett submitted that as the object of the Act was to compensate the Territory for the cost of investigating and prosecuting crime, the court had no jurisdiction to make a restraining order without some evidence before it of the actual amounts expended for which the Territory is to be compensated.  He drew the analogy of a Mareva injunction in which, he said, one would expect some evidence of the size of the plaintiff’s claim before an injunction would be granted, and he relied on obiter remarks by Southwood J in DPP v Emmerson & Anor:[5]

“In my opinion, it is arguable that in a case where a restraining order is sought on the ground that the offender is likely to be declared a drug trafficker, the scope of the restraining order may be confined to the cost of deterring, detecting and dealing with the criminal activities of the particular offender whose property is sought to be restrained.  Further, any affidavit material relied on in support of the application for a restraining order should contain evidence of those costs including the costs of the police investigations of the offender’s criminal activities, the likely costs of prosecuting the offender and the likely costs of any term of imprisonment that the offender is likely to be required to serve.  Nowhere in either Act is there any suggestion that an offender should be required to pay for the costs of deterring, detecting and dealing with the criminal activities of others and specific provision is made for the forfeiture of property that constitutes unexplained wealth or a criminal benefit.

In Burnett v Director of Public Prosecutions the Court of Appeal held that the court had a virtually unfettered discretion as to whether or not to make a restraining order under s 42 to s 46 of the Criminal Property Forfeiture Act.  While s 44(3) of the Act prevents the court from refusing to make an order if the only reason is because the value of the property exceeds, or could exceed, the amount that the person could be liable to pay to the Territory if the relevant declaration were made, the subsection does not prevent the Court making a restraining order over only such property that is of sufficient value to pay for the costs of deterring, detecting and dealing with the criminal activities of the particular offender that is before the Court.  A restraining order which is so confined would be consistent with the object specified in s 10(2) of the Act and with the objects of the Act as a whole.”[6] (references omitted)

[17]     It seems to me that Emmerson is of no assistance to the objector.  There Southwood J was dealing with an application for a drug offender declaration and his remarks were specifically directed to (and limited to) that situation.

[18]     Moreover, the objector’s contention does not withstand even the most cursory perusal of the relevant sections of the Act.  Subsection 10(2) is followed by s 10(3) which provides:

“Crime-used or crime-derived property (real or personal) is forfeit to the Territory to deter criminal activity and prevent the unjust enrichment of persons involved in criminal activities.”

[19]     It is clear from s 10(3) that, contrary to the objector’s submission, the objects of the forfeiture provisions of the Act are not confined to “compensation”.  They include compensation to the Territory for the cost of deterring, detecting and dealing with criminal activities, prevention of unjust enrichment and deterring crime.  

[20]     Under the Act, the court may order that crime used property be forfeited to the Crown.[7]  Section 11 provides a very wide definition of crime used property.  There is not the slightest indication of any limitation on the value of the property to be forfeited.  Moreover, the suggestion that the property which can be restrained is limited in value to the actual cost to the community of investigating and prosecuting the actual crime to which the restraining order relates is directly contrary to s 11(2) which provides that property which falls within the wide definition in s 11(1) is crime used whether or not any person who made the use of the property (or performed the acts or omissions) which brought the property within the definition has been identified, and whether or not any person has been charged with or convicted of the relevant forfeiture offence.

[21]     On top of that, there is directly contrary authority.  In DPP v Mattiuzo[8] Riley CJ, disposed of essentially the same argument in the following terms:

The objective of the Criminal Property Forfeiture Act

Counsel for the objectors submitted that the present proceedings fell outside the legislative scope of the Criminal Property Forfeiture Act.  Reliance was placed on s 3 of the Act which is in the following terms:

“The objective of this Act is to target the proceeds of crime in general and drug-related crime in particular in order to prevent the unjust enrichment of persons involved in criminal activities.”

It was argued that, because the objective of the Act is expressed to be specifically targeted at property possessed as the proceeds of crime or as a consequence of unjust enrichment from criminal activity, its operation is limited to property which fits that description.

It was submitted that s 3 of the Act created a "threshold" in relation to all provisions of the Act and those provisions were to be invoked only when the prosecution of the matter targeted the proceeds of crime; and to prevent the unjust enrichment of persons involved in criminal activities.  It was submitted that the threshold was not crossed in the current matter.  Counsel argued that the property, the subject of the restraining order, was validly held by the objectors through “legal and bona fide acquisition ... in the absence of criminal profits” and could not be the subject of a forfeiture application.

Whilst it is arguable that the objective identified in s 3 of the Act is narrowly described, reference to the whole of the Act makes it clear that the purpose of the legislature extended beyond such a narrow focus.  The approach to objects clauses has been held to be much the same as the approach to preambles in legislation.  Such a clause cannot cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear.

The intended wider operation of the legislation is readily apparent from other provisions of the Act.  For example, s 10 is in the following terms:

‘(2)    The property (real or personal) of a person who is involved or taken to be involved in criminal activities is forfeit to the Territory to the extent provided in this Act to compensate the Territory community for the costs of deterring, detecting and dealing with the criminal activities.

(3)     Crime-used or crime-derived property (real or personal) is forfeit to the Territory to deter criminal activity and prevent the unjust enrichment of persons involved in criminal activities.

(4)     For the purposes of this Act, a person is taken to be involved in criminal activities if:

(a)    the person is declared under section 36A of the Misuse of Drugs Act to be a drug trafficker;

(b)    an unexplained wealth declaration or a criminal benefit declaration is made in relation to the person; or

(c)    the person is found guilty of a forfeiture offence.’

The Act provides for the forfeiture of two classes of property namely crime-used property and crime-derived property.  In relation to crime-used property there is no suggestion in the legislation that such property will only be liable to forfeiture if ownership resulted from the proceeds of crime or was a part of the unjust enrichment of a person involved in criminal activities.  It is sufficient if the property concerned meets the statutory definition of crime-used property. The submission made on behalf of the objectors cannot be sustained.”[9] (references omitted)

[22]     In Dickfoss, Mildren J said, in relation to the forfeiture stage of proceedings:

“There is no requirement of proportionality between the forfeiture offence and the value of the property to be forfeited.  There is no power to take into account hardship, except for the very limited purposes of s 63(1)(a) of the Act which requires proof, amongst a host of other things, that the objector is either an innocent party or less than 18 years of age, and is a spouse, de facto partner or dependant of the owner of the property.  If the property has sentimental value, the Court has a limited power to set aside the restraining order if it orders the objector to pay the value of the property to the Territory.  There is no power to order forfeiture of only a part of the property.  Thus if only a tiny fraction of the property is crime-used, the forfeiture order, if it is made at all, applies to the whole property or to its full value.”[10] (references omitted)

[23]     Even if the Act were to be construed in the manner contended for by the objector, I do not think that making a restraining order without requiring evidence of the quantum of the compensation rightfully claimable by the Territory (or the amount of the alleged unjust enrichment to the person who committed the forfeiture offence) would amount to an error of law (especially when the objector stood by and made no submission that such evidence was required) let alone a jurisdictional error.  Finally, even if there had been a jurisdictional error, as explained above, the appropriate remedy would have been for the objector to appeal.

[24]     The second submission made by Mr Tippett was that the restraining order should be set aside because of changed circumstances since it had been made or because there had been material non-disclosure by the DPP when the order was first obtained.

[25]     The argument in relation to “changed circumstances”, as I understand it, is this.  Although Mr Grimm was legally represented at the time of the application by the DPP for a restraining order, he was not aware that he could have resisted the making of the restraining order on a number of grounds – hardship to himself from the loss of his home, and the disproportionality between the value of the Land and vehicle the subject of the restraining order and the value of the stolen property which was found on the Land.  In fact he deposed that he received advice from his solicitor at the time that he had no grounds for resisting the making of the restraining order. 

[26]     Mr Tippett said that there have been developments in the law since then which have rendered that advice inaccurate.  He referred to DPP v Emmerson (above) and to DPP v Atkinson[11] in which Barr J re-affirmed the existence of a discretion to refuse to make a restraining order or to limit the amount of property to be subject to a restraining order, and considered a submission by a convicted drug dealer that a restraining order should be refused over his unit.  Mr Jobson, for the DPP pointed out that the existence of such a discretion has been clear, at least since the decision of the Court of Appeal in Burnett v DPP[12] in 2007: there has been no change in the law.

[27]     In any event, I do not consider that the objector can show that circumstances have so changed since the time the restraining order was made that, though properly made then, it is no longer appropriate for the restraining order to remain in force.  (As stated above, if the allegation is really that the restraining order was not properly made at the time, the remedy is an appeal.)  Mr Grimm was cross examined about the advice he received and when he received it and he was very vague about it.  He could not recall just who served him with the application or when, or when he saw his solicitor or why.  However, it appears from the Court records that Ms Davidson of Messrs Maleys (Mr Grimm’s current solicitors) appeared for him on the date the restraining order was made.  As Mr Jobson pointed out, if the “changed circumstance” relied upon is the state of the law, then that is simply not right.  If the “changed circumstance” is Mr Grimm’s knowledge that he would have been able to make submissions that the restraining order should not have been made or should have been restricted to more limited property because of hardship to himself and/or a lack of proportionality between the amount of stolen property found on the Land and the value of the Land, then all he is really saying is that he received wrong legal advice at the time and so elected not to resist the making of the order.  That is not a circumstance that, by itself, would justify the discharge of an injunction; nor is it sufficient to justify the discharge of the restraining order.  In saying this, I do not want to be taken to be agreeing with the proposition that the advice Mr Grimm received at the time of the making of the restraining order was in fact wrong.  In fact I very much doubt whether there would have been any utility at all in making such submissions.  In Atkinson, the case now relied on by the counsel for Mr Grimm, it was alleged that the respondent’s unit had been used for storing drugs. Barr J exercised his discretion to make a restraining order over the unit on the ground that there were reasonable grounds to suspect that the property was crime used in circumstances where the respondent’s financial circumstances were worse than Mr Grimm’s and the consequent hardship greater.  In doing so, Barr J said:

“There is no doubt that the respondent would suffer considerable hardship through the loss of the Unit, and the resultant obligation to pay rent for the rest of his life after his release from prison.  However, such hardship to the respondent may have very little influence on the exercise of my discretion.  Having regard to the objects and purposes of the Act, the restraint (and ultimately the forfeiture) of the Unit is the almost inevitable consequence of the Unit being crime-used in the way it was in March 2008 and January 2009.”[13] (references omitted)

He said further:

“As to ground 9, the respondent’s submissions as to lack of proportionality raise the issue of hardship touched on by me in par [37].  In Dickfoss, Mildren J made the following observations in the course of considering the court’s discretion as to whether or not to make a restraining order:-

‘A court of equity has the power to refuse injunctive relief if that would result in substantial hardship and disproportionate prejudice to the defendant .... Bearing in mind that the Act is particularly draconian, and complex in its various provisions, in my opinion it would be open to the court to refuse an application where the forfeiture offence was minor, technical or trivial, and the value of the crime-used property was substantial so that there was significant disproportionality between the remedies sought and the purposes which the remedies sought to achieve, particularly if there would be significant hardship to the defendant or others with an interest in the property.’

His Honour was referring to the court of equity taking into account disproportionality and hardship to a party in the court’s consideration of the balance of convenience on an application for an interlocutory injunction.  That is made clear from the context, where his Honour was referring to the making of freezing orders, and the footnoted reference to paragraph 21-380 of Meagher, Gummow & Lehane, Equitable Doctrines and Remedies, 4th edition.

I do not consider that the stated principles relating to substantial hardship and disproportionate prejudice to a defendant in interlocutory injunction applications have particular relevance to the exercise of my discretion in the present case, where the respondent has been investigated and successfully prosecuted for two lots of offending and the outcomes are clear.”[14] (references omitted)

[28]     Mr Grimm swore an affidavit in which he deposed to increasing ill health since the forfeiture proceedings had been instituted and annexed medical reports which spoke of his having tremors and depression which had become worse.  Counsel for Mr Grimm contended that this too amounted to “changed circumstances” which would justify the setting aside of the restraining order.  I reject that contention.  Any changed circumstances relied upon have to be material to the question of whether an order should be made – that is to say, that although in the circumstances that existed at the time the making of the order was appropriate, it would not have been appropriate to make the order if the circumstances had been as they are in their changed form.  Mr Grimm’s ill health does not qualify as such a relevant circumstance.  It would have been of little, if any, significance in the exercise of the discretion to make a restraining order over the property.

[29]     The other basis for arguing that the restraining order ought to be set aside under the inherent jurisdiction was material non-disclosure by the DPP on the application for the order.  The objector contended that the DPP ought to have disclosed in its affidavit in support of the application for a restraining order the cost to the Territory of investigating and prosecuting the crimes to which Mr Grimm pleaded guilty so that the judge hearing the application could consider and determine whether to restrain the whole of the property or only part thereof.  This argument rests entirely upon the contention I have already rejected that the combined effect of s 3 and s 10(2) of the Act is to place an implied limit on the value of the property which can be restrained and, subsequently forfeited.  Accordingly, this submission too must be rejected.

[30]     For the above reasons, the objection is dismissed.

 

____________________



[1]           (2011) 28 NTLR 71, [2011] NTSC 4 at [91].

 

[2]           [1966] 2 All ER 454.

 

[3]           [1965] 2 All ER 933.

 

[4]           Regent Oil Co Lit v J T Leavesley (Litchfield) Ltd at 459.

[5]           [2012] NTSC 60.

[6]           Ibid [53] and [54].

[7]           Sections 95 and 96.

 

[8]           (2011) 29 NLLR 189; [2011] NTSC 60.

[9]           Ibid at [11] to [16].

 

[10]          Dickfoss at [72].

[11]             (2011) 212 A Crim R 241; [2011] NTSC 73.

 

[12]          (2007) 21 NTLR 39; [2007] NTCA 7.

[13]             At [37].

 

[14]             At [43] to [45].