Applicant v Respondents

1 On 14 September 2007, I held that restraining orders made by Gillard J on 18 July 2005, pursuant to the provisions of the Confiscation Act 1997 ("the Confiscation Act"), should not be set aside. Such orders applied to property of Bow Ye Investments Pty Ltd (In Liquidation) ("Bow Ye").

2 The restraining order in issue declared that "the property ... is restrained for the purpose of satisfying any pecuniary penalty order that may be made under Part 8 of the Confiscation Act."

3 The basis of the rejected application by Bow Ye was a constitutional one founded on the proposition that the operation of the relevant provisions of the Confiscation Act altered, impaired and detracted from the operation of the Corporations Act 2000 (Cth).

4 The DPP has now sought an order for the costs of the application before me.

5 Bow Ye has filed written submissions pursuant to leave, contending that the Court has no power to make such an order. It is not disputed that if the power exists the DPP is entitled to an order for party/party costs.

6 The basis of Bow Ye's submission is s.133A of the Confiscation Act. This is preceded by s.133(1) which provides:

(1) Proceedings on an application under this Act are civil in nature, except as otherwise provided by this Act.

(1) Costs may only be awarded in accordance with this section.

(a) a person brings, or appears at, proceedings under this Act before a court in order -

(i) to prevent a forfeiture order or restraining order from being made against property of the person; or

(ii) to have property of the person excluded from a forfeiture order or restraining order; and

(b) the person is successful in those proceedings; and

(c) the court is satisfied that the person was not involved in any way in the commission of the offence in respect of which the forfeiture order or restraining order was sought or made -

the court may order the applicant for the forfeiture order or restraining order to pay all costs incurred by the person in connection with the proceedings or any part of those costs that is determined by the court.

(3) If a person brings, or appears at, proceedings under this Act before the Supreme Court in order -

(a) to prevent a civil forfeiture order or a restraining order for the purpose of civil forfeiture from being made against property of the person; or

(b) to have property of the person excluded from a civil forfeiture order or a restraining order for the purpose of civil forfeiture-

the Supreme Court may order the applicant for the civil forfeiture order or restraining order to pay all costs incurred by the person in connection with the proceedings or any part of those costs that is determined by the Court if-

(c) the Supreme Court refuses to make a civil forfeiture order under section 38; or

(d) the person (other than the defendant) is successful in those proceedings.

(4) The amount of costs referred to in subsections (2) and (3) is in the discretion of the court.

8 In DPP v Le (No 2)[1] the Court of Appeal held that on its proper construction s.133A left untouched the general power to award costs pursuant to s.24(1) of the Supreme Court Act 1986[2], in respect to those classes of proceeding not covered by s.133A(2) and (3) of the Confiscation Act. The Court, comprising Maxwell P, Chernov and Neave JJA stated at [4] and [5]:

The starting point for any consideration of the Court's power to make an order for costs is s 24(1) of the Supreme Court Act 1986, which gives the Supreme Court (including the Court of Appeal[3]) "full power" to order costs "unless otherwise expressly provided by ... any other Act." Since s 133A is not expressed to limit the scope of s 24(1), the question must be whether the language of s 133A requires the conclusion that Parliament intended to remove altogether the general power to order costs and to replace it with a limited power, enabling the Court to order costs only in certain specified types of proceeding. As the High Court said in Rose v Hvric, where the phrase "except where otherwise expressly enacted" is used -

"... no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests."[4]

We do not consider that the statutory language requires that conclusion. On the contrary, we think that on its proper construction s 133A leaves untouched the general costs power as it applies to types of proceeding not mentioned in s 133A(2) and s 133A(3). (emphasis added)

(a) that the application in issue falls within the classes of proceeding governed by s.133A(2) and (3) and;

(b) the DPP does not fall within the terms of such subsections enabling the recovery of costs.

(a) the application does not fall within the classes of proceeding governed by s.133A(2) and (3); and

(b) the otherwise general power granted under the Supreme Court Act 1986 enables the award of costs.

11 It is, in my view, clear that Bow Ye is a person who appeared at proceedings under the Confiscation Act. I do not accept that Bow Ye's application can be said to have been made other than in the existing proceeding pursuant to that Act, however the basis of the particular application is strictly to be analysed.

12 Further, Bow Ye appeared at a proceeding before a "court" which term is defined by the Act to include the Supreme Court.

13 I do not accept however (as Bow Ye contends) that such appearance was in order to prevent a restraining order "for the purpose of civil forfeiture from being made against the property". The purpose of the restraining order was that stated within it, namely that of satisfying any pecuniary penalty order that might be made. It follows that s.133A(3) does not apply, and that the question arises whether the purpose of Bow Ye's appearance meets the criteria stated in s.133A(2).

14 In this respect the critical question is whether such appearance was in order "to prevent... a restraining order from being made against property of the person."

15 The application before me was, in substance, the rehearing of an ex parte application made to Gillard J.

16 At the hearing before me it was not contested by the DPP that because of the ex parte nature of the initial order, Bow Ye was entitled to ask the Court to re-examine its appropriateness ex debito justitiae. In my view, the appearance of Bow Ye upon this application was, in substance, for the purpose of preventing a restraining order from being made against the property of Bow Ye. Accordingly, in my view, the application falls within the purpose requirement governing that class of applications within s.133A(2).

17 By contrast, in DPP v Le the purpose of the application in issue did not fall within the purposes encompassed by s.133A(2) or (3) and the Court was concerned with the residual category of cases. It was in this context it reached its conclusion:

The present case illustrates the point well. Under s 133A(2)(a)(ii) an "all costs" order may be made in proceedings brought by a person -

"to have property of the person excluded from a forfeiture order or restraining order."

In this proceeding, the applicant succeeded in having property excluded from automatic forfeiture (ss 51, 52), rather than from a forfeiture order (ss 49, 50). Section 133A makes no provision for - and hence, on the Director's argument, precludes - an order for costs in such a proceeding, even at first instance. We can see no policy basis for allowing costs to be awarded to a successful applicant in one type of exclusion order proceeding but prohibiting such an order in another type of exclusion order proceeding.[5]

18 In the present case Bow Ye's application fell within the class governed by s.133A(2) but the DPP is not within that class of persons for whose benefit an order can be made. The Court's power is to make an order against the applicant for the restraining order.

19 The question which remains is whether the class of proceedings governed by s.133A(2) and (3) is to be regarded as defined by the purposive requirements first stated in the sub-sections or requires also, before a proceeding falls within that class, that the outcomes referred to in the sub-sections be achieved and where relevant the proviso contained in s.133A(2)(c) be met. In other words, to use the phraseology of the Court of Appeal in DPP v Le, what are "the types of proceedings, ... mentioned in s.133A(2) and s. 133A(3)"?

20 In my view, the provision that costs may "only" be awarded in accordance with the section, which is contained in sub-s.(1), supports the conclusion that with respect to that class of proceedings defined by the initial purposive requirements of sub-ss.(2) and (3), those sub-sections cover the field with respect to the power to award costs. This is the class of proceedings "mentioned" in s.133A(2) and (3).

21 If the contrary view be taken, then the word "only" is left with no work to do. Sub-sections (2) and (3) simply convey a power to award "all costs incurred by the person" in the circumstances specified by them, and otherwise the Court's power to award costs is replete. I prefer the view which gives sub-s.(1) some effect.

22 If the word "only" in s.133A(1) is given the effect which I prefer, then the terms of s.133A(1) constitute an express provision otherwise than in accordance with s.24(1) of the Supreme Court Act 1986. The effect of s.133A(1) is that s.133A(2) and (3) cover the field with respect to proceedings brought and appearances made for the purposes specified.

23 Although the proceedings are to be regarded as civil in character by reason of s.133(1), their genesis is the criminal law. In a criminal trial on indictment or presentment no order for costs may ordinarily be made against or in favour of the Crown. There is no statutory basis for such an order.[6] It follows that it is difficult to regard the lack of power to award the DPP costs in the present case as anomalous.

24 Accordingly, in my view, there is no power to award the DPP costs.

[1] [2007] VSCA 57.

[2] s. 24(1) provides:

(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

[3] See, in relation to the Court of Appeal, s 10(3).

[4] [1963] HCA 13; (1963) 108 CLR 353 at 358.

[6] Wright, Danci & Currie (1992) 77 A Crim R 67.