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.
8 We note in passing that the strict construction of s 133A now contended for by the Director appears not to have been identified until rather late in the day. The Judge at first instance in this proceeding made an order for costs in favour of the successful applicant. If s 133A is exhaustive, as the Director now contends, his Honour had no power to make that order. Yet the Director's notice of appeal raised no issue about the costs order being ultra vires. On the contrary, the Director's notice sought an order that his costs of the appeal be paid by the respondent, an order of the very kind which he now argues this Court cannot make.
9 Re Moran[3] provides another example of a proceeding under the Act which falls outside s 133A. In that case, the Director sought to have a person "deemed to have been convicted of an offence" within the meaning of s 4(1) of the Act. Where such an application is successfully opposed, it is scarcely to be supposed that Parliament in enacting s 133A intended to deny the person the opportunity to seek the order for costs to which, as the successful party, he/she would ordinarily be entitled.
10 Secondly, the power conferred by subsections (2) and (3) is a power to order the applicant for the relevant order to pay "all costs incurred...". Parliament evidently intended to enable a more generous costs order to be made than the order for party/party costs usually made under s 24(1).[4] It would seem paradoxical if Parliament had, on the one hand, enlarged the costs power in relation to the types of proceedings mentioned in s 133A while, on the other, removing the costs power altogether in relation to all other confiscation-related proceedings (including, on the Director's argument, all appeals, even in proceedings referred to in the section.[5])
11 We earlier rejected the respondent's argument that the legislature must be taken to have intended to deny the Director a right of appeal from the making of an exclusion order under s 52(1), by reason of the omission from s 142(5) of any reference to s 52(1). For similar reasons, we now reject the Director's argument that the omission of certain types of proceeding from s 133A necessarily implies that Parliament intended to prohibit the making of costs orders in such proceedings. In an Act punctuated with unexplained - and inexplicable - omissions and inconsistencies, as this Act is, such an implication is unwarranted. If that truly is Parliament's intention, it should be stated expressly.
12 If, as we have recommended, the appeal provisions of the Act are to be reviewed, the opportunity should also be taken to review and clarify the policy underlying, and the scope of, the costs provisions.