Director of Public Prosecutions for Victoria v Le

High Court of Australia|2007-11-14|Before: Crennan JJ, Gleeson CJ

The application for an exclusion order was initiated on that date. ↑

Director of Public Prosecutions v Le (2007) 15 VR 352. ↑

Section 14 (1); cf Proceeds of Crime Act 2002 (Cth), s 17 considered in Director of Public Prosecutions (Cth) v Hart [2007] QCA 184. ↑

The Act distinguishes between Sched 1 offences and the more serious offences specified in Sched 2. If a person is convicted of a Sched 1 offence, the DPP may apply for a forfeiture order in respect of tainted property, whether or not the property has previously been subject to a restraining order (see s 32). The Act provides for the automatic forfeiture of restrained property upon conviction for a Sched 2 offence (see s 35). ↑

Section 16(2)(c) provides that a restraining order could be sought if "a person has been charged with a Schedule 2 offence and that person has an interest in the property or the property is tainted property in relation to that offence". ↑

The restraining order also applied to a black 1992 Mercedes‑Benz sedan, which was not the subject of dispute in these proceedings. ↑

Although the application was made out of time, the primary judge granted leave for the wife to bring her application on the basis that the delay was not due to neglect on her part: see s 51(3). ↑

It can be noted that the description of the property in this order differs from the description in the restraining order, which refers to the property at "10/28-30 Ridley Street, Sunshine". ↑

Director of Public Prosecutions v Le (2007) 15 VR 352 at 364-365 [49]-[50]. ↑

Director of Public Prosecutions v Le (2007) 15 VR 352 at 365 [50]. ↑

Director of Public Prosecutions v Le (2007) 15 VR 352 at 367-368 [64]. ↑

Director of Public Prosecutions v Le (2007) 15 VR 352 at 364 [45] per Maxwell P and Chernov JA. ↑

Director of Public Prosecutions v Le (2007) 15 VR 352 at 362 [37] per Maxwell P and Chernov JA. ↑

Director of Public Prosecutions v Le (2007) 15 VR 352 at 359-360 [24] per Maxwell P and Chernov JA. ↑

Director of Public Prosecutions v Le (2007) 15 VR 352 at 364-367 [49]-[62] per Maxwell P and Chernov JA. ↑

Yanner v Eaton (1999) 201 CLR 351 at 365-366 [17] per Gleeson CJ, Gaudron, Kirby and Hayne JJ. ↑

Cf Director of Public Prosecutions (Cth) v Hart (No 2) [2005] 2 Qd R 246 at 257 [20]: McPherson JA construed similar, but not identical, definitions in the Proceeds of Crime Act 2002 (Cth) as comprehending both meanings of "property" but considered that "the primary meaning of 'property'" in the equivalent section is the thing itself. ↑

Director of Public Prosecutions v Le (2007) 15 VR 352 at 365 [51]-[53] per Maxwell P and Chernov JA. ↑

Commonwealth Director of Public Prosecutions v Hart [2007] QCA 184 at [45]. ↑

Explanatory Memorandum for the Confiscation Bill 1997 of 14 November 1997, cl 52: "If the applicant is able to prove the matters referred to in paragraphs (d) and (e) [matters going to 'effective control' and 'sufficient consideration'] this will prove that the defendant does not have an interest in the property." (emphasis added) ↑

Interpretation of Legislation Act 1984 (Vic), s 35(b)(iii). ↑

Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ. ↑

See s 3(1): definition of "interest" set out above at [80]. ↑

The wife's application under s 20 for exclusion from the restraining order was subsequently amended to include also the application under s 51(1) for exclusion from automatic forfeiture. ↑

Section 50(1) matters include the same matters relevant to s 52(1) set out above. ↑

Director of Public Prosecutions v Le (2007) 15 VR 352 at 368 [67] per Neave JA. ↑

Examples of which were given by Neave JA: Director of Public Prosecutions v Le (2007) 15 VR 352 at 369-370 [73]-[77]. ↑

Bropho v Western Australia (1990) 171 CLR 1 at 20 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ. ↑

Butt, Land Law, 5th ed (2006) at 214 [1405], 216 [1410]. ↑

Butt, Land Law, 5th ed (2006) at 237 [1458]. (original emphasis) ↑

Guthrie v Australia and New Zealand Banking Group Ltd (1991) 23 NSWLR 672 at 680 per Meagher JA. See also Mitrovic v Koren [1971] VR 479 at 481 per Gowans J. ↑

Bankruptcy Act 1996 (Cth), s 58(2). See also Re Holland; Ex parte Official Trustee in Bankruptcy (1985) 5 FCR 165 at 167 per Fisher J. ↑

Peldan v Anderson (2006) 227 CLR 471 at 483 [29] per Gummow ACJ, Kirby, Hayne, Callinan and Crennan JJ. ↑

See for example Butt, Land Law, 5th ed (2006) at 249-250 [1487]. ↑

Exceptions to the "unity of time" requirement for wills and conveyances to uses have no application here. ↑

Cf the discussion of legal duties arising in marriage in Joske, Matrimonial Causes and Marriage Law and Practice of Australia and New Zealand, 5th ed (1969) at 134. ↑

Miller v Miller [2006] 2 AC 618 at 632 [11] and 632-633 [16] per Lord Nicholls of Birkenhead, 655 [123] and 660-661[141] per Baroness Hale of Richmond. ↑

Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516 at 556 [103] per Gummow J. ↑

Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) (1948) 77 CLR 143 at 152 per Dixon J. ↑

Treitel, The Law of Contract, 11th ed (2003) at 67; see also Chitty on Contracts, 29th ed (2004), vol 1 at 216 [3-002]. ↑

Mansukhani v Sharkey [1992] 2 EGLR 105 at 106 per Fox LJ; see also Cattanach v Melchior (2003) 215 CLR 1 at 104 [292] per Callinan J. ↑

See, for example, Bret v JS (1600) Cro Eliz 756 [78 ER 987]. See also Tweddle v Atkinson (1861) 1 B & S 393 at 398 per Crompton J, 399 per Blackburn J [121 ER 762 at 764] (which is somewhat differently reported at (1861) 30 LJQB (NS) 265). ↑

Meagher, Heydon and Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 4th ed (2002) at 654 [20-025] citing Re Cook's Settlement Trusts [1965] Ch 902 at 915-916. See also Attorney‑General v Jacobs Smith [1895] 2 QB 341 at 353 per Kay LJ. ↑

Green v Paterson (1886) 32 Ch D 95 at 106-108 per Fry LJ. ↑

Popiw v Popiw [1959] VR 197 at 199 per Hudson J. ↑

Blackstone, Commentaries on the Laws of England (1766), vol 2 at 297. ↑

Property Law Act 1958 (Vic), s 18(1); Robinson, The Property Law Act Victoria (1992) at 408-409; Conveyancing Act 1919 (NSW), s 7(1); Law of Property Act 1936 (SA), s 7; Property Law Act 1974 (Q), Sched 6; Property Law Act 1969 (WA), s 7; Law of Property Act (NT), s 4. ↑

See Chief Commissioner of State Revenue (New South Wales) v Dick Smith Electronics Holdings Pty Ltd (2005) 221 CLR 496 at 505 [24] per Gleeson CJ and Callinan J (in dissent but not on this point) and the references referred to there. See also House v Caffyn [1922] VLR 67 at 75 per Cussen J. ↑

cf Garcia v National Australia Bank Limited (1998) 194 CLR 395 at 403 [19]-[20] per Gaudron, McHugh, Gummow and Hayne JJ; cf at 427 [66.5] per Kirby J. ↑

Black's Law Dictionary, 8th ed (2004) at 326; Oxford Dictionary of Law (2006) at 117: "sufficient means sufficient in law". ↑

Proceeds of Crime Act 2002 (Cth), s 338; Criminal Assets Recovery Act 1990 (NSW), s 4(2); Criminal Assets Confiscation Act 2005 (SA), s 3; Criminal Proceeds Confiscation Act 2002 (Q), Sched 6; Crime (Confiscation of Profits) Act 1993 (Tas), s 4(4); Confiscation of Criminal Assets Act 2003 (ACT), Dictionary; cf Criminal Property Confiscation Act 2000 (WA), Glossary. ↑

Director of Public Prosecutions v Le (2007) 15 VR 352 at 362-363 [41] per Maxwell P and Chernov JA citing Wigan v Edwards (1973) 47 ALJR 586; 1 ALR 497. ↑

See Wigan v Edwards (1973) 47 ALJR 586 at 594-595 per Mason J; 1 ALR 497 at 512; Barba v Gas & Fuel Corporation (Vict) (1976) 136 CLR 120 at 132 per Gibbs J; McKay v National Australia Bank Ltd [1998] 1 VR 173 at 177 per Winneke P. ↑

Carter and Harland, Contract Law in Australia, 4th ed (2002) at 112 [323]. See also Australian Contract Law Reporter, vol 1 at ¶8-080: "Consideration need not be adequate, but must be sufficient … Although the words 'sufficient' and 'adequate' are normally synonymous, a distinct and well recognised meaning is attributed to each word when the above statement is made." ↑

Robinson, The Property Law Act Victoria (1992) at 408. ↑

This section was replaced by the Bankruptcy Legislation Amendment Act 1996 (Cth). ↑

(1998) 192 CLR 557 at 573 [37] per Gummow J; see also 567 [13] per Brennan CJ and McHugh J. ↑

Re Abbott [1983] Ch 45 at 57 per Sir Robert Megarry VC; see also Barton v Official Receiver (1986) 161 CLR 75 at 84-85, 86 per Gibbs CJ, Mason, Wilson and Dawson JJ; Official Trustee in Bankruptcy v Mitchell (1992) 38 FCR 364 at 368-369. ↑

This section was inserted into the Bankruptcy Act 1996 (Cth) by the Bankruptcy Legislation Amendment Act 1996 (Cth). ↑

See Australian Law Reform Commission, Confiscation that Counts: A Review of the Proceeds of Crime Act 1987, Report No 87, (1999) par 2.61. ↑

"An interest in property ceases to be serious crime derived property or illegally acquired property:

(a) when it is acquired by a person for sufficient consideration without knowing, and in circumstances that would not arouse a reasonable suspicion, that the interest was, at the time of acquisition, serious crime derived property or illegally acquired property …" ↑

"sufficient consideration, in relation to property, means consideration that reflects the market value of the property and does not include -

(d) consideration arising from love and affection". ↑

This new definition of "sufficient consideration" will not affect "the rights of the parties" in the present appeal. See s 17 of the Confiscation Amendment Act 2007 (Vic) which inserts s 178(2) into the Act. ↑

Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486 at 497 [28] per Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ. ↑

Director of Public Prosecutions v Le (2007) 15 VR 352 at 364 [45] per Maxwell P and Chernov JA. ↑

Director of Public Prosecutions v Le (2007) 15 VR 352 at 360-362 [28]-[37] per Maxwell P and Chernov JA, 367-368 [64] per Neave JA. ↑

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 567-569 [48]-[54] per Gleeson CJ. ↑

Director of Public Prosecutions v Le (2007) 15 VR 352 at 359-360 [24], [27] per Maxwell P and Chernov JA. ↑

Confiscation Amendment Act 2007(Vic)

Bankruptcy Act 1996(Cth)

Bankruptcy Legislation Amendment Act 1996(Cth)

Director of Public Prosecutions for Victoria v Le [2007] HCA 52

[1965] AC 1175 at 1247‑1248. See also the reasons of Mason J in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 342. ↑

35 Md 327 at 336 (1872). See also House v Caffyn [1922] VLR 67 at 79; Wirth v Wirth (1956) 98 CLR 228 at 235‑236; Scott on Trusts, 4th ed (1989), vol 5 at s405. ↑

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