Bow Ye Investments Pty Ltd (in Liq) v Director of Public Prosecutions (No 2)

[2009] VSCA 278

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 1436 of 1999

BOW YE INVESTMENTS PTY LTD (IN LIQ)

(ACN 077 188 160)

Appellant

v

DIRECTOR OF PUBLIC PROSECUTIONS

and ORS (NO 2)

Respondents

---

JUDGES:	WARREN CJ, BUCHANAN JA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 June 2009
DATE OF JUDGMENT:	7 December 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 278

---

PRACTICE AND PROCEDURE – Costs – Confiscation proceedings – Application by Director of Public Prosecutions for restraining orders against appellant’s property – Appeal dismissed - Whether Director entitled to costs of proceeding on appeal – Whether costs order precluded by statutory scheme on costs – Director of Public Prosecutions v Le (No 2) [2007] VSCA 57 considered - Confiscation Act 1997, S133A - Supreme Court Act 1986, s24(1).

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr J F Bleechmore	Brand Partners
For the Director	Mr N J O’Bryan SC with Mr C G Juebner	Mr C Hyland Solicitor for Public Prosecutions

WARREN CJ
BUCHANAN JA
VICKERY AJA:

1. On 22 June 2009, judgment was delivered by this Court in an appeal by Bow Ye Investments Pty Ltd (in liq) (‘appellant’) from a decision of a judge of the Trial Division dismissing an application to set aside orders made under the Confiscation Act 1997 (‘Confiscation Act’).[1]  The appeal was dismissed.  The Director made an oral application for costs against the appellant who opposed the application.  Consequently, the Court made no order as to costs and invited the parties to file written submissions on the matter.

   [1]Bow Ye Investments Pty Ltd (in liq) v DPP [2009] VSCA 149.

1. The Director seeks an order that the appellant pay the Director’s costs of the appeal on a party and party basis.

1. The general discretionary power conferred upon the court to award costs lies in s 24(1) of the Supreme Court Act 1986 (‘Supreme Court Act’) which 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.

1. By virtue of s 133(1) of the Confiscation Act, the proceedings are civil in nature.  Costs would, therefore, ordinarily follow the event and be awarded to the Director as the successful party in the appeal. 

1. However, as was observed by the learned trial judge:

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 (footnotes omitted).[2]

[2]DPP v Loo [2007] VSC 437, [23].

1. Section 133A of the Confiscation Act restricts the Court’s power to award costs.  The section 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, proceeding sunder 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.

1. ‘Court’ is defined in s3 of the Confiscation Act to include the Supreme Court.

Do the proceedings fall within the ambit of S133A(2) or (3)?

1. Section 133A(3) of the Confiscation Act is not relevant to the present proceeding because the appeal does not relate to an application for a civil forfeiture order under s38 of the Confiscation Act. Section 133A(2)(a)(ii) is not relevant because the appeal does not concern an application for exclusion from forfeiture or a restraining order. The remaining provision to be considered is s133A(2)(a)(i).

1. The Director submits that s133A(2)(a)(i) does not apply to the present proceeding, therefore the Court has power to award costs in favour of the Director pursuant to the general discretionary power in s24(1) of the Supreme Court Act.

1. In support the Director submits two reasons as to why the appellant did not appear before the court to ‘prevent a … restraining order from being made’ as is required by s133A(2)(a)(i) of the Confiscation Act.[3]  First, the restraining order had already been made when the appeal was commenced; and secondly, unlike the hearing before the learned trial judge, the appeal was not an inter partes hearing of the Director’s application for the restraining order.

   [3]Cf DPP v Loo [2007] VSC 437, [14] – [16].

1. We reject this submission. The appellant did appear before a court within the meaning of s133A(2)(a)(i) of the Confiscation Act to prevent a restraining order being made.  The original orders were made ex parte in a hearing before the judge sitting in the Practice Court.  The appellant then applied for review of the orders and the application was heard inter partes before a judge of the Trial Division.  At that hearing the appellant was entitled to ask the Court to re-examine the appropriateness of the order ex debito justitiae.[4]  The appellant therefore appeared before the learned trial judge to prevent the restraining order being made.  The appellant then appealed the decision.  The appeal from that decision is part of the proceedings at which the appellant appeared to prevent the order being made. 

   [4]DPP v Loo [2007] VSC 437, [16].

1. The combined effect of the restriction created by s133A(1), with the preconditions detailed in s133A(2) and (3) is that the section ensures that persons challenging applications for forfeiture orders or restraining orders, if successful, are not required to pay their own costs. Such an effect is clearly the policy behind the section. This policy applies equally to the appeal as to the proceeding at first instance.

1. The Director further submitted that the present proceedings do not fall within S133A(2) of the Confiscation Act because the proceeding must not only meet the requirements under s133A(2)(a)(i), but also those in S133A(2)(b) and (c). This interpretation of s133A(2) is correct. The section must be read as a whole. The use of the conjunctive ‘and’ to link the three paragraphs it contains points to a requirement to satisfy all three preconditions for the subsection to apply.[5]

   [5]Victims Compensation Fund Corp v Brown (2003) 201 ALR 260.

1. In the present case, the appellant was unsuccessful, therefore S133A(2)(b) is not satisfied and the proceedings do not fall within the ambit of s133A(2) of the Confiscation Act. It is unnecessary to decide the issue raised by S133A(2)(c).

Does the general power to award costs remain?

1. The effect of s133A of the Confiscation Act upon the general discretionary power to award costs under s24(1) of the Supreme Court Act was examined in DPP v Le (No 2).[6]  There the Court held that where proceedings do not fall within s 133A(2) or (3) of the Confiscation Act, the general power to award costs remains intact.[7]

   [6][2007] VSCA 57.

   [7]Ibid, [5]; see also DPP v Ali (No 2) [2009] VSCA 243.

1. Section 133A does not contemplate costs orders awarded in favour of the Director, it merely deals with the situation where costs are awarded against the Director. If costs are to be awarded against the Director, certain additional factors listed in the three paragraphs of s133A(2) or (3) must be met for a party challenging an order to be awarded costs. That is, the purpose of s133A(1) as it operates with s133A(2) or (3) is to ensure that persons who successfully resist applications for forfeiture or restraining orders, or successfully have their property excluded from such orders, must meet those additional requirements as a precondition to the recovery of costs.

1. It is difficult to see why the Director, in making a successful application for a restraint or forfeiture order which is unsuccessfully challenged on appeal, should be unable to recover costs.  The Director, as a party to a civil proceeding, should be awarded costs where successful in the usual manner.  While the confiscation proceedings did spring from a criminal trial, the nature of the dispute between the appellant and the respondent was essentially civil in nature, involving competing property claims.

1. In order to exclude the Court’s general power to award costs, as conferred by s 24(1) of the Supreme Court Act 1986, clear and unequivocal language would be required. Section 24(1) provides a general discretion to the Court to determine costs ‘[u]nless otherwise expressly provided’. Section 133A does not so provide. The purpose of s133A is not to exclude the Director from obtaining an award for costs; it is to govern the circumstances under which an order for costs may be made against the director. If the intention is to exclude the Director from being awarded costs, the language of the provision must expressly provide for that to be the case.

1. Accordingly, the appellant should be ordered to pay the Director’s costs of the appeal on a party and party basis.