Director of Public Prosecutions v Kobelt, Searle, Searle, Butler & Beare

The case between the Director of Public Prosecutions and Kobelt, Searle, Searle, Butler & Beare was before the court to determine the validity of a restraining order and the subsequent application for exceptions and exclusions. The restraining order dated 28 May 2004 was issued under the Proceeds of Crime Act 1999 (Vic) and sought to be converted to a statutory forfeiture under the amended Proceeds of Crime Act 2005 (Vic). The applicants, Kobelt, Searle, Searle, Butler & Beare, argued that the statutory forfeiture should not apply to them as their convictions were made after the repeal of the previous Act and the introduction of the 2005 Act. They further sought an exception or exclusion from the statutory forfeiture on the basis of exceptional hardship.

The court had to determine whether the 2005 Act applied to the convictions made under the previous Act and whether the applications for exception were validly made within the stipulated timeframe. The court found that the 2005 Act applied to the convictions as they were made after the repeal of the previous Act. The court further held that the applications for exception were not validly made as they were filed after the six-month period from the date of conviction had expired, and no application for an extension order was made. The court held that the failure of the defendants to seek an extension order or to bring their applications within the six months of conviction proved fatal to their claims.

The court found that the restraining order of 28 May 2004 remained valid and in tact, and the Director’s application to transfer the proceedings with respect thereto was validly made. The applications for exception or exclusion were now precluded. The court found that the result was unpalatable but was dictated by the clearly expressed legislative intent to determine extant proceedings under the repealed Act in accordance with the 2005 Act. The court ordered that the applications for exception be dismissed, and the matter be heard on the other issues arising, including the issue of declarations as sought pursuant to s77 of the 2005 Act. The parties were given liberty to apply on short notice.