Coleman v DPP (No 2)

[2018] VSCA 282

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0045

ANTHONY COLEMAN

v

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA (NO 2)

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JUDGES:	KAYE, ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF SUBMISSIONS AND COSTS:	Written Submissions of Respondent 24 October 2018 Written Submissions of Applicant 31 October 2018
DATE OF JUDGMENT:	22 October 2018 ([2018] VSCA 264)
DATE OF COSTS RULING:	1 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 282

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PRACTICE AND PROCEDURE – Costs – Confiscation proceedings – Application by applicant for declarations in respect of restraining order – Application dismissed – Application for leave to appeal refused – Usual costs rule applied – Applicant ordered to pay respondent’s costs of application for leave.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Coleman in person
For the Respondent	Mr T Gyorffy QC	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA
ASHLEY JA
WEINBERG JA:

1. In this matter, the applicant sought leave to appeal a decision of a judge of the County Court dismissing a summons issued by the applicant by which he sought orders for declarations in respect of a restraining order that had been made on 9 March 2012.  On 22 October 2018, this Court delivered judgment refusing the applicant such leave to appeal.[1]  The respondent seeks an order that the applicant pay the respondent’s costs of the application on a party/party basis. 

   [1]Coleman v Director of Public Prosecutions [2018] VSCA 264.

1. In response, the applicant has submitted that no order for costs should be made in favour of the respondent.  That submission was made on three grounds.  First, it is submitted, there were no previous decisions on the interpretation of various sections of the Confiscation Act that were relevant to the application for leave to appeal, and s 73(6)(a) of the Crimes Act.  Accordingly, it is contended that the respondent now has the ‘benefit’ of a judgment that will assist in future confiscation matters.  Secondly, it is submitted, the respondent has already, as a result of confiscation proceedings, confiscated approximately $1,500,000 of assets that were tainted, but were not directly obtained through illegal activity of the applicant.  Thirdly, it is submitted that any costs order will be futile if the applicant has no funds to pay it. 

1. It is not in issue that the Court has power to make an order for costs in a proceeding of this type.[2]  In the present case, the Court refused to grant leave to the applicant to appeal the decision of the County Court, as the Court concluded that the four grounds of appeal, sought to be relied on by the applicant, were not reasonably arguable.  Particularly having regard to the weakness of the applicant’s case, there is no reason to depart from the ordinary rule that costs follow the event.  The fact that the substantive application for leave to appeal might have involved the construction of a number of provisions of the Confiscation Act, and of s 73(6)(a) of the Crimes Act, did not constitute it a test case, nor in all the circumstances of the matter does it justify a departure from the ordinary rule relating to costs.  Further, the fact that the applicant may suffer financial hardship, and indeed be unable to pay the costs, does not disentitle the respondent for an order in respect of those costs. 

   [2]See, eg, DPP v Le [2007] VSCA 57 [5]; Bow Ye Investments Pty Ltd v Director of Public Prosecutions (No.2) [2009] VSCA 278 [17]–[18]; Director of Public Prosecutions (Vic) v Ali (No 2) (2009) 25 VR 656.

1. Accordingly, it shall be ordered that the applicant pay the respondent’s costs of the application for leave to appeal, including any reserved costs.