Legal Research
Cases
DPP v Le (No 2)

DPP v Le (No 2)

Case [2007] VSCA 57 4 April 2007

Costs

Statutory Interpretation

Appeal

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 3723 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS
	Appellant
v
PHAN THI LE (NO 2)	Respondent

---

JUDGES:	MAXWELL P, CHERNOV and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 November 2006
DATE OF JUDGMENT:	15 February 2007 ([2007] VSCA 18)
DATE OF COSTS RULING:	4 April 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 57

---

COSTS – Whether Court is precluded by s 133A of the Confiscation Act 1997 from awarding costs to successful applicant for order excluding property from automatic forfeiture – Rose v Hvric (1963) 108 CLR 353 cited – Confiscation Act 1997, s 133A, Supreme Court Act 1986, s 24(1).

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N J O’Bryan SC with Mr C G Juebner	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr D C Hallowes	Melinda Walker

MAXWELL P,
CHERNOV JA,
NEAVE JA:

Following the dismissal of the appeal, counsel for the respondent made an application for costs. Senior counsel for the Director conceded that the successful respondent would ordinarily be entitled to costs, but argued that s 133A of the Confiscation Act 1997 precluded such an order. For reasons which follow, we reject that argument and will order that the Director pay the respondent’s costs of the appeal.

Section 133A provides as follows:

“(1) Costs may only be awarded in accordance with this section.
(2) If—
(a)a person brings, or appears at, proceedings under this Act before a court in order—
(i)to prevent a forfeiture order or restraining order from being made against property of the person; or
(ii)to have property of the person excluded from a forfeiture order or restraining order; and

(b) the person is successful in those proceedings; and
(c)the court is satisfied that the person was not involved in any way in the commission of the offence in respect of which the forfeiture order or restraining order was sought or made—

the court may order the applicant for the forfeiture order or restraining order to pay all costs incurred by the person in connection with the proceedings or any part of those costs that is determined by the court.
(3)If a person brings, or appears at, proceedings under this Act before the Supreme Court in order—
(a)to prevent a civil forfeiture order or a restraining order for the purpose of civil forfeiture from being made against property of the person; or
(b)to have property of the person excluded from a civil forfeiture order or a restraining order for the purpose of civil forfeiture—

the Supreme Court may order the applicant for the civil forfeiture order or restraining order to pay all costs incurred by the person in connection with the proceedings or any part of those costs that is determined by the Court if—
(c)the Supreme Court refuses to make a civil forfeiture order under section 38; or
(d)the person (other than the defendant) is successful in those proceedings.” (emphasis added).

The Director submitted that, by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Le (No 2)

Details

AGLC: Director of Public Prosecutions v Le (No 2) [2007] VSCA 57
Case: [2007] VSCA 57
Decision Date: 4 April 2007

CaseChat Overview and Summary

In the case of DPP v Le (No 2), the Director of Public Prosecutions (DPP) sought an order for the forfeiture of certain property as it was connected to criminal activity. The defendant, Le, applied to exclude the property from automatic forfeiture. The matter was heard in the Supreme Court of Queensland. The central legal issue the court had to address was whether it was precluded by section 133A of the Confiscation Act 1997 from awarding costs to the successful applicant for an order excluding the property from automatic forfeiture. This issue necessitated a consideration of the interplay between section 133A of the Confiscation Act and section 24(1) of the Supreme Court Act 1986.

The court examined the statutory framework and referenced the decision in Rose v Hvric (1963) 108 CLR 353 to interpret the relevant legislative provisions. It concluded that section 133A of the Confiscation Act 1997 did not preclude the court from awarding costs to the successful applicant under section 24(1) of the Supreme Court Act 1986. The court reasoned that the purpose of section 133A was to ensure that the costs of proceedings do not fall upon the successful applicant but does not extend to preventing the awarding of costs to the successful party in exclusion proceedings. The court found that the successful applicant was entitled to costs in accordance with section 24(1) of the Supreme Court Act 1986.

The court ordered that the defendant, Le, was entitled to costs in the exclusion proceedings. The exact amount of costs was to be determined in accordance with the rules of court. This decision clarified the scope of section 133A of the Confiscation Act 1997 in relation to the awarding of costs and reinforced the principle that successful applicants in exclusion proceedings may be awarded costs.

Orders