Director of Public Prosecutions v Disorganized Developments Pty Ltd

In the matter of the Director of Public Prosecutions versus Disorganized Developments Pty Ltd, the latter entity sought costs on an indemnity basis due to a formal offer filed shortly after the action was instituted, or alternatively on the standard costs basis. The Director of Public Prosecutions opposed such orders. Disorganized Developments, incorporated in the 1990s, was the registered proprietor of approximately 15 hectares of land, known as Ponde, located at 591 Kenny Road, Cowirra. The Director's case involved an alleged assault on 30 January 2017, resulting in the death of Mark Boyce, and the subsequent discovery of the burnt and buried remains of a blue Toyota Echo sedan on the Property. The Director instituted this action against A and Disorganized Developments, seeking a restraining order and forfeiture order under the relevant Act.

The legal issues before the court centred on whether the Director's failure to provide adequate notice of its case in the affidavits warranted costs on an indemnity basis, or whether the standard costs basis was more appropriate. The court had to consider the effect of the Formal Offer and its non-acceptance by the Director on the costs order, as well as the notice requirements under the relevant legislation. The court also needed to determine whether the Director's case was sufficiently disclosed in the affidavits filed, and whether the failure to identify the material facts relied on in seeking a restraining order or forfeiture order warranted indemnity costs.

The court held that despite the mandatory requirement to take into account the Formal Offer and its non-acceptance, it was not appropriate to order that the Director pay Disorganized Developments' costs on any basis other than a standard costs basis. The court found that the Director's failure to provide adequate notice of its case in the affidavits did not warrant indemnity costs, as the material facts relied on in seeking a restraining order or forfeiture order were not fundamentally different from those identified in the affidavits. The court concluded that the Director's case was sufficiently disclosed, and that the failure to identify the material facts relied on in seeking a restraining order or forfeiture order did not warrant indemnity costs.

The court ordered that the Director pay Disorganized Developments' costs of action on a standard costs basis. This decision was based on the court's finding that the Director's failure to provide adequate notice of its case in the affidavits did not warrant indemnity costs, and that the standard costs basis was more appropriate in light of the Formal Offer and its non-acceptance.