Diez v Director of Public Prosecutions

The appeal in *Diez v Director of Public Prosecutions* concerned an application for costs against the Commonwealth. The Director of Public Prosecutions had obtained a restraining order in respect of the appellant's property interests, following the appellant's conviction under s 233B of the *Customs Act 1901* (Cth). The court below had made orders pursuant to ss 48(3)(g) and 48(4) of the *Proceeds of Crime Act 1987* (Cth).

The central legal issues before the Court of Appeal were whether the recovery of costs under s 101 of the *Proceeds of Crime Act 1987* (Cth) excluded the Supreme Court's broader power to order costs against a party, including the Commonwealth, in applications falling within the scope of s 101. Specifically, the court considered whether s 101 constituted an exclusive code for cost recovery against the Commonwealth for applications to exempt property from forfeiture or restraint under the Act, and whether such applications were limited to those described in s 101(1)(a), thereby making the court's discretion to order costs against the Commonwealth wholly dependent on the applicant satisfying all the conditions of s 101.

The Court of Appeal reasoned that s 101 of the *Proceeds of Crime Act 1987* (Cth) did not create an exclusive code for the recovery of costs against the Commonwealth. The court held that the Supreme Court retained its inherent discretion to award costs against the Commonwealth in applications made under the Act, even where s 101 might otherwise apply. The ambit of s 101 was not intended to limit the court's general power to award costs.

The appeal was allowed with costs.