I have successfully argued that the jurisdiction of the Magistrates Court of Western Australia, and by implication the District Court of Western Australia, is narrower than the Police and the Director of Public Prosecutions have always contended.

I acted for an objector who had just over $182,000 cash frozen under the Criminal Property Confiscation Act 2000. The freezing notice (issued by a Justice of the Peace, but drafted by and on the application of WA Police) nominated the Magistrates Court as the relevant Court in which any objection to confiscation of frozen property must be lodged. My client had complied and lodged his objection in that Court.

The freezing notice specified the Magistrates Court on the basis that the Police described the $182,000 as 13 discrete bundles of cash, and each bundle being less than the Magistrates Court’s jurisdictional limit (namely $75,000). This was in accordance with a long-standing practice of the WA Police Proceeds of Crime Squad, and which was clearly sanctioned by the Director of Public Prosecutions. The practice had the artificial effect of pushing a number of matters that belonged in the District Court into the Magistrates Court and some matters that belonged in the Supreme Court into the District Court.

In reasons published on 12 October 2017, Davis DCJ upheld my primary argument that s 101 of the Criminal Property Confiscation Act 2000 is directing the Court to determine whether the total value of all the property the subject of the objection exceeds the jurisdictional limit of the Court in question.

Section 101 relevantly provides:

(1) The Supreme Court has jurisdiction in any proceedings under this Act.

(2) The District Court has jurisdiction in any proceedings under this Act in connection with property if —
(a) the property is not registrable real property; and
(b) the value of the property is not more than the jurisdictional limit (within the meaning of section 6 of the District Court of Western Australia Act 1969) [$750,000].

(3) The Magistrates Court has jurisdiction in proceedings under this Act in connection with property if —
(a) the property is not registrable real property; and
(b) the value of the property is not more than the jurisdictional limit (within the meaning of section 4 of the Magistrates Court (Civil Proceedings) Act 2004) [$75,000].

(4) Despite subsection (3), the Magistrates Court has no jurisdiction in proceedings for an unexplained wealth declaration or an examination order.

(5) Despite subsections (3) and (4), if both the applicant and the respondent consent, the Magistrates Court may hear and determine —
(a) an objection

Obviously my client did not consent to the Magistrates Court determining his objection.

Her Honour’s full reasons are the subject of a limited non-publication order1 to preserve the integrity of my client’s upcoming jury trial. The central passage of her Honour’s reasoning was:

[83] There is, in my view, no reason to interpret ‘the property’ in s 101(3)(b) of the CPCA as a reference to each individual item of property as particularised in a freezing notice. In my view ‘the property’ spoken about in s 101(3)(b) can only mean the property the subject of the ‘proceedings under this Act in connection with property’ in the opening words of s 101(3). In this case, the ‘proceedings’ are those commenced by the filing of the objections relating to the whole of the property in the freezing notice.

[84] It is the total value of the property in issue in the proceedings, once the objection is filed, that determines jurisdiction and not how the property is set out or particularised in the freezing notice.

Accordingly her Honour granted my client’s application under s 39(2) of the Magistrates Court (Civil Proceedings) Act 2004 to transfer the objection to the District Court. These being civil proceedings her Honour also ordered the State to pay my client’s legal costs associated with the transfer application immediately in the sum of $12,500.

Great care must still be taken in advising anyone served with a freezing notice. The freezing notice will specify the Court to which an objection must be made. That direction may be to file the objection in a Court that does not have jurisdiction to deal with the objection. But that in my view does not justify an objector from disregarding the statutory direction in s 35(1)(e) to file the objection in the Court specified in the notice.2

The single most important thing when dealing with CPCA matters is to ensure that a valid objection is filed within 28 days of service of the freezing notice on the client (or 28 days from when they become aware or could reasonably be expected to have become aware of the notice).3 Failure to comply will result in automatic (and irreversible) confisaction to the State under s 7(1). Note that despite its simple wording the 28 day time limit cannot be extended under s 79(4).4

Nothing in the above constitutes legal advice. It is provided for general information only.

  1. The reasons can be supplied to “Any legal practitioner or judicial officer dealing with proceedings under the Criminal Property Confiscation Act 2000”. The reasons were published as …. v State of Western Australia [2017] WADC 133 []
  2. Davis DCJ made passing reference to this at [36] of her reasons. []
  3. See s 79(2),(3). []
  4. Centurion Trust Company Limited v DPP (WA) [2010] WASCA 133 at [255] (Buss JA), [74] (Owen JA). Centurion Trust Company Limited v DPP (WA) [2009] WASCA 97 at [59] (McLure JA), [1] (Owen JA). []