DPP v Le (No 2)

[2007] VSCA 57

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 3723 of 2006

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

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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

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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).

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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:

1. 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.

1. 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).

1. The Director submitted that, by force of subsection (1), s 133A was to be regarded as an exhaustive statement of the Court’s power to order costs in confiscation matters. Since the section made no provision for the making of a costs order on an appeal from the making of an exclusion order, so it was submitted, the Court had no power to make any such order.

1. The starting point for any consideration of the Court’s power to make an order for costs is s 24(1) of the Supreme Court Act 1986, which gives the Supreme Court (including the Court of Appeal[1]) “full power” to order costs “unless otherwise expressly provided by … any other Act.” Since s 133A is not expressed to limit the scope of s 24(1), the question must be whether the language of s 133A requires the conclusion that Parliament intended to remove altogether the general power to order costs and to replace it with a limited power, enabling the Court to order costs only in certain specified types of proceeding. As the High Court said in Rose v Hvric, where the phrase “except where otherwise expressly enacted” is used –

“… no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests.”[2]

[1]See, in relation to the Court of Appeal, s 10(3).

[2](1963) 108 CLR 353 at 358.

1. We do not consider that the statutory language requires that conclusion. On the contrary, we think that on its proper construction s 133A leaves untouched the general costs power as it applies to types of proceeding not mentioned in s 133A(2) and s 133A(3).

1. Several considerations are relevant to the question of construction. First, s 133A leaves out various categories of proceedings in respect of which the general costs power would ordinarily be expected to be exercisable. We can discern no policy rationale which might explain what the Director contends was a deliberate legislative decision to deny the Court any power to order costs in such proceedings.

1. The present case illustrates the point well. Under s 133A(2)(a)(ii) an “all costs” order may be made in proceedings brought by a person –

“to have property of the person excluded from a forfeiture order or restraining order.”

In this proceeding, the applicant succeeded in having property excluded from automatic forfeiture (ss 51, 52), rather than from a forfeiture order (ss 49, 50). Section 133A makes no provision for – and hence, on the Director’s argument, precludes – an order for costs in such a proceeding, even at first instance. We can see no policy basis for allowing costs to be awarded to a successful applicant in one type of exclusion order proceeding but prohibiting such an order in another type of exclusion order proceeding.

1. We note in passing that the strict construction of s 133A now contended for by the Director appears not to have been identified until rather late in the day. The Judge at first instance in this proceeding made an order for costs in favour of the successful applicant. If s 133A is exhaustive, as the Director now contends, his Honour had no power to make that order. Yet the Director’s notice of appeal raised no issue about the costs order being ultra vires.  On the contrary, the Director’s notice sought an order that his costs of the appeal be paid by the respondent, an order of the very kind which he now argues this Court cannot make.

1. Re Moran[3] provides another example of a proceeding under the Act which falls outside s 133A. In that case, the Director sought to have a person “deemed to have been convicted of an offence” within the meaning of s 4(1) of the Act. Where such an application is successfully opposed, it is scarcely to be supposed that Parliament in enacting s 133A intended to deny the person the opportunity to seek the order for costs to which, as the successful party, he/she would ordinarily be entitled.

   [3][2004] VSC 421.

1. Secondly, the power conferred by subsections (2) and (3) is a power to order the applicant for the relevant order to pay “all costs incurred…”. Parliament evidently intended to enable a more generous costs order to be made than the order for party/party costs usually made under s 24(1).[4] It would seem paradoxical if Parliament had, on the one hand, enlarged the costs power in relation to the types of proceedings mentioned in s 133A while, on the other, removing the costs power altogether in relation to all other confiscation–related proceedings (including, on the Director’s argument, all appeals, even in proceedings referred to in the section.[5])

   [4]cf. Criminal Assets Confiscation Act 2005 (SA) s 227;  Criminal Proceeds Confiscation Act 2002 (Qld) s 261;  Confiscation of Proceeds of Crime Act 1989 (NSW) s 90;  Crime (Confiscation of Profits) Act 1993 (Tas) s 76(2).

   [5]In relation to the contrary proposition – that “proceedings” includes appeals - see In re Crittendon;  Ex parte The Law Institute of Victoria [1958] VR 101 per Lowe and O’Bryan JJ and Braeside Bearings Pty Ltd v H J Brignell & Associates (Boronia) [1996] 1 VR 17 per Tadgell JA.

1. We earlier rejected the respondent’s argument that the legislature must be taken to have intended to deny the Director a right of appeal from the making of an exclusion order under s 52(1), by reason of the omission from s 142(5) of any reference to s 52(1). For similar reasons, we now reject the Director’s argument that the omission of certain types of proceeding from s 133A necessarily implies that Parliament intended to prohibit the making of costs orders in such proceedings. In an Act punctuated with unexplained – and inexplicable – omissions and inconsistencies, as this Act is, such an implication is unwarranted. If that truly is Parliament’s intention, it should be stated expressly.

1. If, as we have recommended, the appeal provisions of the Act are to be reviewed, the opportunity should also be taken to review and clarify the policy underlying, and the scope of, the costs provisions.

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