DPP v Ali & Anor

1 On 26 June 2009, this Court delivered judgment allowing an appeal from the trial judge's decision that the appellant, the Director of Public Prosecutions for Victoria ('DPP'), was precluded from applying for a restraining order under the Confiscation Act 1997 (Vic) ('Confiscation Act') in relation to property of the first respondent ('KA').[1]

2 The DPP has now sought an order that KA pay the DPP's costs of the appeal.[2] KA relied upon s 133A of the Confiscation Act in submitting that this Court did not have power to award costs in favour of the DPP. Alternatively, KA contended that no order for costs should be made as this was a 'test case'. He also sought an indemnity certificate pursuant to s 4 of the Appeal Costs Act 1998 (Vic).[3]

3 In my view, for the reasons which follow, the Court has no power to make the order for costs which the DPP seeks.

4 This Court has a general discretionary power to determine by whom and to what extent costs of a proceeding should be paid. That power applies '[u]nless otherwise expressly provided' in an Act or in Rules made under the Supreme Court Act 1986 (Vic).[4] Ordinarily, a successful appellant in a civil proceeding[5] could expect to be awarded the costs of the appeal and that the costs be calculated on a party and party basis.

5 Section 133A of the Confiscation Act provides:

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

(2) If -

(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 a 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.

6 In Director of Public Prosecutions v Le (No 2),[6] Ms Le had obtained an order excluding property from automatic forfeiture. The DPP had appealed unsuccessfully from the making of that exclusion order. Ms Le sought an order that the DPP pay her costs of the appeal. The DPP submitted that s 133A was an exhaustive statement of the Court's power to order costs in confiscation matters and that an award of costs in favour of Ms Le was not authorised by s 133A. This Court rejected that submission, holding that 'on its proper construction s 133A leaves untouched the general costs power [in s 24(1) of the Supreme Court Act] as it applies to types of proceeding not mentioned in s 133A(2) and s 133A(3).'[7] The Court accordingly held that it was not precluded from ordering the DPP to pay Ms Le's costs of the appeal.

7 In Director of Public Prosecutions for Victoria v Loo,[8] Bow Ye Investments Pty Ltd (In Liquidation) ('BY') had unsuccessfully applied for the setting aside of a restraining order. When the DPP sought the costs of the unsuccessful application, BY argued that s 133A precluded an award of costs in favour of the DPP. Osborn J agreed. He held that the proceeding fell within the class of proceedings governed by s 133A(2)(a), since BY was a person who appeared at proceedings under the Confiscation Act before a court 'in order to prevent a restraining order from being made' against its property.[9] Since the only power conferred by s 133A(2) was a power to order the applicant for a restraining order to pay costs, the DPP was 'not within that class of persons for whose benefit an order can be made.'[10]

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 subsections or requires also, before a proceeding falls within that class, that the outcomes referred to in the subsections 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)"?

In my view, the provision that costs may "only" be awarded in accordance with the section, which is contained in subs (1), supports the conclusion that with respect to that class of proceedings defined by the initial purposive requirements of subss (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).

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 subs (1) some effect.

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.

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. It follows that it is difficult to regard the lack of power to award the DPP costs in the present case as anomalous.[11]

9 It was common ground that the present proceeding was also within the class of proceedings to which s 133A(2)(a) applies. That is so because KA appeared at 'proceedings under [the Confiscation Act] before a court in order ... to prevent a ... restraining order from being made against [his] property'.[12]

10 That being so, KA submitted, Osborn J's analysis must be applied, and no order for costs could therefore be made in favour of the DPP. According to KA's submission, the only relevance of the conditions in subparagraphs (2)(b) and (c) was in determining whether the power which the subsection conferred - to make an order for costs in favour of the party which appeared in order to protect or exclude property ('the opponent') - was enlivened.

11 The submission for the DPP, on the other hand, was that Osborn J's analysis was erroneous and should not be followed. On the DPP's argument, the general costs power under s 24(1) of the Supreme Court Act is not excluded from all proceedings to which s 133(2)(a) of the Confiscation Act applies but only when the conditions in subparagraphs (2)(b) and (c) are satisfied and the power to order costs in the opponent's favour is enlivened.

12 In my respectful view, Osborn J's analysis is correct. As his Honour recognised, the emphatic language of s 133A(1) must be given effect to: 'Costs may only be awarded in accordance with this section.' This Court in Le[13] held that the general costs power continued to apply to classes of proceedings not covered by

s 133A(2) and (3), but it seems clear, in my view, that the general power was intended to be displaced in relation to the classes of proceedings which are covered by those subsections. The plain intent of s 133A(1) is that, in such proceedings, the only order for costs which may be made is an order in favour of the opponent, and then only if that person satisfies the statutory conditions.

13 The only question which remains, therefore, is whether the phrase 'proceedings under this Act', as it appears in s 133A(2) and (3), should be read as including proceedings by way of appeal. In my view, it should. The word 'proceedings' is plainly wide enough to include proceedings on appeal, and the purpose of the provision militates in favour of a wide construction.[14]

14 The evident policy of s 133A is that, in proceedings to which the section applies, an unsuccessful opponent should not have to pay the DPP's costs. In the present case, had the DPP succeeded before the trial judge, there could have been no order that KA pay the DPP's costs. The appeal proceeding has established that that is what should have occurred. The policy of s 133A applies with equal force to the appeal as to the proceeding at first instance.

15 In Le,[15] the Court recommended that the substantive appeal provisions under the Confiscation Act be reviewed and that 'the opportunity should also be taken to review and clarify the policy underlying, and the scope of, the costs provisions'.[16] The former recommendation was taken up, and the appeal provisions were amended.[17] The costs provisions have not, however, been amended. This case, and the continuing uncertainty which it exemplifies, underline the urgent need for a rationalisation of the costs provisions.

16 KA submitted that, if the Court determined that it had power to award costs in favour of the DPP, there should nevertheless be no order for costs because the proceeding was in the nature of a 'test case' of significant importance to the DPP and the public at large. In view of my conclusion that there is no power in this case to award costs to the DPP, it is strictly unnecessary to address this alternative submission. For completeness, however, I should state that I would have rejected it, for the following reasons.

17 Counsel for KA referred to the recent ruling of this Court in Director of Public Prosecutions v Nguyen ('Nguyen'),[18] where the Court held that that proceeding had the characteristics of a test case. That proceeding raised significant questions of general application and had been conducted in the public interest.[19]

18 In Nguyen,[20] the DPP had appealed from an order of a judge of the trial division dismissing an application for judicial review of a decision of the County Court. The critical issue was whether the date of conviction was the date on which

an accused was arraigned and the allocutus was administered, or the date upon which his or her plea was heard and unequivocally accepted. The Court concluded that significant questions of general application were raised by the proceeding - both at law and for the purposes of the Confiscation Act - and that the respondents could rightly be characterised as having been parties to a proceeding which the DPP had conducted in the public interest. Accordingly, the Court made no order as to costs, either of the proceeding in the trial division or of the appeal.

19 The present case does not fall into that exceptional category. Almost every case under the Confiscation Act requires interpretation of a provision of the Act. That cannot be sufficient for this purpose. The point at issue must be capable of being viewed as of wide general importance before it can be regarded as a test case.

20 I have had the advantage of reading, in draft, the judgments prepared by the President, and by Kyrou AJA. I agree with the orders proposed by Kyrou AJA, and with his Honour's reasons. I will briefly set out why.

21 The issue to be resolved seems to be purely one of construction. Section 133A of the Confiscation Act makes provision for costs to be awarded in proceedings brought under that Act.

22 Section 133A(1) provides that 'costs may only be awarded in accordance with this section'.

23 Section 133A(2) then sets out the circumstances under which a person who successfully resists the making of a forfeiture order or restraining order, or succeeds in having his or her property excluded from any such order, may recover costs awarded against the unsuccessful applicant for such an order.

24 Section 133A(3) is to the same effect. The only difference is that it deals with what are known as 'civil forfeiture orders', and 'restraining orders for the purpose of

25 A singular feature of s 133A is its use of the expression in sub-section (1) 'may only be awarded in accordance with this section'. The drafting is poor. It is unclear, from the language used, whether the legislature intended to shut out entirely from any possible order as to costs, an applicant (such as the DPP) who is successful, whether at first instance or on appeal, in obtaining the relief sought under the Confiscation Act.

26 Plainly, there are two possible views of the section. The first is that only a person who falls precisely within s 133A(2), or s 133A(3), that is a person who holds an interest in the property sought to be forfeited or restrained, can ever recover costs in any proceeding under the Confiscation Act. The second is that if such a person seeks to prevent such an order from being made, or seeks to have his or her property excluded from an order of that kind, that person can only recover costs if each and every one of the limiting conditions set out within those subsections is satisfied.

27 In other words, s 133A(1) can be construed as preventing any recovery of costs by anyone other than a person who falls specifically within s 133A(2) or s 133A(3). In practical terms that would exclude the DPP, who is generally the applicant for such orders, from ever being able to recover costs. The alternative is to read s 133A(1) as enabling anyone who successfully resists a forfeiture order or restraining order, or succeeds in having his or her property excluded from such an order to recover costs, but only if that person meets each of the preconditions for such costs to be awarded, as set out in s 133A(2), or s 133A(3).

28 In my opinion, the second of these interpretations is correct. It would require clearer language than that used in s 133A(1) to prevent a successful party in what is, after all, a civil proceeding, from recovering that party's costs in accordance with ordinary practice.

29 It is true that, in one sense, s 133A(2) and s 133A(3) 'cover the field'. Section 133A(1) makes that clear. However, the question remains what 'field' do these subsections cover? In my view, all that is excluded from the purview of possible costs orders in proceedings under the Confiscation Act are orders in favour of those applicants for relief from confiscation under the Confiscation Act who meet some, but not all, of the conditions set out in s 133A(2) or s 133A(3). The DPP is not such a person. He falls entirely outside the scope of s 133A. Accordingly, he is not precluded by s 133A(1) from seeking, and being awarded, costs.

30 My reasons for preferring this construction of s 133A may be briefly summarised. They are as follows:

• the second of the two interpretations discussed above accords broadly with the reasoning of this Court in Le[21] where it was held that 'on its proper construction s 133A leaves untouched the general costs power [in s 24(1) of the Supreme Court Act] as it applies to types of proceedings not mentioned in ss 133A(2) and 133A(3)'. The Court held, in Le,[22] that it was not precluded by s 133A from ordering the DPP, who had unsuccessfully appealed against an order excluding Le's property from automatic forfeiture, to pay Le's costs of the appeal;

• the legislature would not normally be expected to allow one party to civil proceedings to be able to recover costs, but not the other. If there is to be a restriction on costs, the more usual approach would be to preclude costs from being available to either party;[23]

• there is nothing in either the structure of the Confiscation Act, or the text of s 133A, which suggests that the DPP, if successful in contested confiscation proceedings, should not have his costs. The word 'only' in s 133A(1) can be given full effect, and is not tautologous, if the section is read in the manner set out above. Of course, the section must be read as a whole; [24]

• the construction of s 133A which I prefer accords with a 'purposive' approach to statutory interpretation. It would be odd to think that civil proceedings could be fought over property that is said to be tainted, or the proceeds of crime, that the DPP could succeed in establishing that fact, but that the benefit to the community could be dissipated by the inability to recover costs. This might provide a disincentive to the DPP from taking proceedings in cases where only relatively small amounts of property are in question, and the defendant indicates that the matter is to be heavily contested.

• in a broad sense, s 133A(1) operates as a kind of privative clause. It excludes the operation of the ordinary rules governing costs in civil proceedings, but should, for that reason alone, be read as doing so only within the parameters of the subject matter dealt with in s 133A. Provisions which operate to exclude the ordinary rights of parties to litigation, including the ability to recover costs if successful, should if possible, be given a restrictive, rather than broad interpretation; and

• although confiscation proceedings have a quasi-criminal aspect, that does not of itself suggest that costs should not be available to the DPP if he is successful in a contested hearing. By analogy, costs are normally awarded in extradition proceedings which, of course, have the same criminal flavour as do confiscation proceedings.

31 To the extent that the approach taken by Osborn J in Loo[25] would suggest a contrary interpretation of s 133A, I would respectfully decline to follow that

32 It follows that s 133A does not prevent this Court from exercising its general discretionary power to determine by whom, and to what extent, costs of any proceeding should be paid. The section does not 'otherwise expressly provide' within the meaning of s 24(1) of the Supreme Court Act.

33 I also agree with Kyrou AJA's analysis regarding the other matters raised on behalf of KA. I do not think that this case merits the description of a 'test case'. I would, for the reasons given by his Honour, grant to KA an indemnity certificate under the Appeal Costs Act.

34 In my opinion, the DPP, having succeeded on this appeal, is entitled, in the ordinary way, to the costs of the appeal. Those costs should be assessed on a party and party basis.

35 For the reasons that follow, I have concluded that the Court has power to award costs in favour of the DPP, that such an order should be made and that an indemnity certificate should be granted in favour of KA.

Section 133A of the Confiscation Act

36 Section 133A of the Confiscation Act does not exclude the Court's general power in relation to costs under s 24(1) of the Supreme Court Act, except as it applies to types of proceeding mentioned in s 133A(2) and (3).[26] The parties agreed that the present proceeding satisfied s 133A(2)(a)(i) in that it is a proceeding in which 'a person ... appears at ... proceedings under [the Confiscation Act] before a court in order ... to prevent a ... restraining order from being made against [their] property'. However, it is clear that s 133A(2)(b) and (c) were not satisfied, as the relevant

person, namely KA, was not successful and this Court has not made a finding to the effect that it is satisfied that KA was not involved in any way in the commission of the offence in respect of which the restraining order was sought.

37 Despite these considerations, KA submitted that the award of costs in this proceeding is exclusively governed by s 133A(2) and that the Court therefore does not have power to award costs in favour of the DPP. He referred to Loo[27] and submitted that if the 'purposive' requirement in s 133A(2)(a) is satisfied, as is the case in this proceeding, then the proceeding falls within s 133A and is exclusively governed by s 133A.

38 In my view, KA's submission cannot be accepted. Section 133A(2) must be read as a whole, and on the section's plain words, each of the requirements in s 133A(2)(a), (b) and (c) must be satisfied before the costs consequences for which it provides will apply. Paragraphs (a), (b) and (c) are linked by the conjunctive 'and', which makes it clear that the requirements are cumulative. It follows that each of the requirements must be satisfied before it can be said that s 133A(2) exclusively governs the Court's power to award costs. To hold otherwise would be to place an untenably strained construction on the provision.

39 This conclusion does not mean that s 133A(1) has no work to do. Where each of the requirements in s 133A(2)(a), (b) and (c) is satisfied, s 133A(1) mandates that costs may only be awarded in accordance with s 133A. This means that:

(a) costs may only be ordered in favour of a person who satisfies the requirements;

(b) costs may only be ordered against the applicant for the relevant order; and

(c) the Court's power in relation to the basis upon and the extent to which costs are to be awarded is governed by s 133A.

1"> 40 On the other hand, on KA's construction, s 133A(2)(b) and (c) will not have any operation. If the effect of s 133A is that, where the purposive requirement in s 133A(2)(a) is satisfied, the Court's only power is to order the applicant to pay the relevant person's costs notwithstanding that the person has not satisfied the requirements of s 133A(2)(b) and (c), those requirements are left with no work to do. In my view, it would strain the language of s 133A to read it as deferring the effect of s 133A(2)(b) and (c) until after the exclusivity of s 133A is attracted upon s 133A(2)(a) being satisfied. I accordingly reject the construction that only the requirement in s 133A(2)(a) must be satisfied for the exclusivity of s 133A to be enlivened, after which the requirements in s 133A(2)(b) and (c) must separately be satisfied if an order for costs is to be made in accordance with s 133A.

41 With great respect to Osborn J, I am unable to adopt his interpretation of s 133A in Loo[28] insofar as it is inconsistent with my analysis of the section.

42 I respectfully agree with the President's view that there is an urgent need for rationalisation of the costs provisions in the Confiscation Act.

43 As the President has stated, KA relied on Nguyen[29] in support of his submission that, if the Court determined that it had power to award costs, no order for costs should be made in the proceeding because it was in the nature of a 'test case'.

44 In my view, this case stands in a different position from Nguyen.[30] It cannot be described as a test case. While this Court's decision in the substantive judgment on this proceeding[31] clarifies the position in relation to an important provision of the Confiscation Act, it cannot be said that the question was either of the significance or general application that would be expected of a proceeding in the nature of a test case. Nor was the proceeding conducted by any party in the public interest or on the basis that it was a test case. Accordingly, I would not decline to order costs on the basis that this was a test case.

45 KA has applied for an indemnity certificate pursuant to s 4 of the Appeal Costs Act in respect of his costs of the appeal and any of the DPP's costs that KA was ordered to pay. The application was not resisted by the DPP. In my view, as the requirements of the Appeal Costs Act are met and there are no circumstances that would give rise to a refusal of an indemnity certificate, this is an appropriate case for the grant of such a certificate.

46 Accordingly, I would order that KA pay the DPP's costs of the appeal on a party and party basis and that a certificate be granted in favour of KA under s 4 of the Appeal Costs Act in respect of the costs of the appeal.

[1] Director of Public Prosecutions for Victoria v Ali [2009] VSCA 162 ('DPP v Ali').

[2] The DPP has not sought costs of the trial or the remittal.

[3] 'Appeal Costs Act'.

[4] Supreme Court Act 1986 (Vic) ('Supreme Court Act') s 24(1).

[5] Proceedings on an application under the Confiscation Act are civil in nature except where the Act otherwise provides: s 133(1) of the Act.

[6] [2007] VSCA 57 ('Le').

[8] [2007] VSC 437 ('Loo').

[11] Loo [2007] VSC 437, [19]-[23] (citation omitted).

[12] The present proceeding also satisfied s 133A(3)(a) because the restraining order was sought for the purpose of satisfying any civil forfeiture order that may be made, but did not satisfy s 133A(3)(d). The parties relied only on s 133A(2). In my view, similar principles apply to both subsections.

[13] [2007] VSCA 57 ('Le').

[14] Interpretation of Legislation Act 1984 (Vic) s 35(a).

[15] [2007] VSCA 57.

[17] See Confiscation Amendment Act 2007 (Vic) ss 1, 16 and 17_._

[18] (2009) VSCA 147.

[19] The substantive judgment on the proceeding was published as [2009] VSCA 147. The ruling on costs was delivered orally on 25 June 2009, following argument as to costs after the substantive judgment was published, and has not been published in written form.

[20] (2009) VSCA 147.

[21] [2007] VSCA 57.

[23] See for example s 347 of the Workplace Relations Act 1996 (Cth) where the costs of proceedings are not normally awarded to either party. In trials on indictment the Crown neither seeks nor pays costs. The position is different in relation to summary proceedings, and committals. See, generally, Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534.

[24] It is trite law that an Act must be read as a whole so that a particular section is interpreted in its context, as part of the legislative instrument. See, generally, F Bennion, Bennion on Statutory Interpretation, ( 5th ed, 2008), 1155-7.

[25] [2007] VSC 437.

[26] Le (2007) VSCA 57, [5].

[27] [2007] VSC 437, [19]-[23].

[28] [2007] VSC 437, [19]-[23].

[29] The substantive judgment on the proceeding was published as [2009] VSCA 147. The ruling on costs was delivered orally on 25 June 2009, following argument as to costs after the substantive judgment was published, and has not been published in written form.

[31] DPP v Ali [2009] VSCA 162.