Director of Public Prosecutions v Vu

In the case of Director of Public Prosecutions v Vu, the court was called upon to interpret the provisions of the Confiscation Act 1997 (Vic) in relation to the ex parte application for a restraining order under section 16. The Director of Public Prosecutions sought to confiscate property believed to be derived from criminal activities, and in the interim, applied for a restraining order to prevent the disposal or removal of the property. The central issue before the court was whether the judge is obligated to consider the appropriateness of giving notice to the respondent when making a decision under section 17 of the Act to order that notice of the ex parte application be given. Additionally, the court examined whether the common law principles concerning the notice of ex parte applications are pertinent in this statutory context.

The court considered whether Part 2 of the Confiscation Act 1997 excludes or impacts the common law right to be heard, with reference to the decision in Navarolli v. DPP [2005] VSCA 323. It was argued that the statutory scheme should be interpreted in a way that does not necessarily exclude the common law principles but rather incorporates them where appropriate. The court found that while the statutory process provides a framework for making ex parte orders, the common law principles still play a role in ensuring fairness and justice, particularly when considering whether to order that notice of the application be given to the respondent. The court concluded that the judge has the discretion to consider these principles, and must do so in accordance with the statutory objectives and the particular circumstances of the case.

Ultimately, the court determined that the judge is not strictly bound by common law principles but must consider them in making a decision under section 17 of the Act. The court held that the statutory framework is not intended to exclude the common law right to be heard but rather to provide a structured approach to dealing with ex parte applications in a manner that aligns with the principles of natural justice. This balanced interpretation ensures that the statutory objectives are achieved while also upholding the fundamental rights of the parties involved. The court's decision provides clarity on the interplay between statutory provisions and common law principles in the context of ex parte applications for restraining orders under the Confiscation Act 1997.