DPP v Loo & Ors - [2007] VSC 437

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1436 of 1999

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA	Applicant
v
TAT SANG LOO AND ORS	Respondents

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On written submissions filed pursuant to the direction of Justice Osborn on 14 September 2007
DATE OF RULING:	19 November 2007
CASE MAY BE CITED AS:	DPP v LOO & ORS
MEDIUM NEUTRAL CITATION:	[2007] VSC 437

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Whether Court is precluded by s.133A of the Confiscation Act 1997, from awarding costs to the DPP in respect of an unsuccessful application to set aside an ex parte restraining order -

DPPv Le (No 2) [2007] VSCA 57 cited – Confiscation Act 1997, s.133A - Supreme Court Act 1986 s.24(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N O’Bryan SC with Mr C Juebner	Angela Cannon, Solicitor for Public Prosecutions
For the Secondnamed Respondent	Dr J Bleechmore	Brand Partners

HIS HONOUR:

On 14 September 2007, I held that restraining orders made by Gillard J on 18 July 2005, pursuant to the provisions of the Confiscation Act 1997 (“the Confiscation Act”), should not be set aside. Such orders applied to property of Bow Ye Investments Pty Ltd (In Liquidation) (“Bow Ye”).

The restraining order in issue declared that “the property … is restrained for the purpose of satisfying any pecuniary penalty order that may be made under Part 8 of the Confiscation Act.”

The basis of the rejected application by Bow Ye was a constitutional one founded on the proposition that the operation of the relevant provisions of the Confiscation Act altered, impaired and detracted from the operation of the Corporations Act 2000 (Cth).

The DPP has now sought an order for the costs of the application before me.

Bow Ye has filed written submissions pursuant to leave, contending that the Court has no power to make such an order. It is not disputed that if the power exists the DPP is entitled to an order for party/party costs.

The basis of Bow Ye’s submission is s.133A of the Confiscation Act. This is preceded by s.133(1) which provides:

133 Nature of proceedings
(1)Proceedings on an application under this Act are civil in nature, except as otherwise provided by this Act.

In turn s.133A provides:

133A Costs
(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…

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 Loo & Ors

Details

AGLC: Director of Public Prosecutions v Loo [2007] VSC 437
Case: [2007] VSC 437
Decision Date: 19 November 2007

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Loo and others, the dispute before the court was whether it could award costs to the Director of Public Prosecutions (DPP) in relation to an unsuccessful application to set aside an ex parte restraining order. The matter was heard in the Supreme Court of Victoria. The DPP sought costs under section 24(1) of the Supreme Court Act 1986, but the respondents argued that section 133A of the Confiscation Act 1997 precluded the court from doing so.

The primary issue before the court was whether section 133A of the Confiscation Act 1997 precluded the Supreme Court from awarding costs to the DPP in respect of an unsuccessful application to set aside an ex parte restraining order. The court considered whether section 133A, which deals with the costs of proceedings in the Magistrates' Court, applied to proceedings in the Supreme Court. The respondents argued that the court was precluded from awarding costs to the DPP, but the DPP contended that section 133A did not apply to proceedings in the Supreme Court.

The court held that section 133A of the Confiscation Act 1997 did not preclude the Supreme Court from awarding costs to the DPP in respect of an unsuccessful application to set aside an ex parte restraining order. The court found that section 133A only applied to proceedings in the Magistrates' Court and did not extend to proceedings in the Supreme Court. The court further held that the DPP was entitled to costs under section 24(1) of the Supreme Court Act 1986. The court found that the DPP's application to set aside the ex parte restraining order was not frivolous or vexatious and that the DPP had a reasonable prospect of success. The court therefore awarded costs to the DPP.

The court ordered that the DPP be awarded costs of the proceedings, including the unsuccessful application to set aside the ex parte restraining order. The court found that the DPP was entitled to costs under section 24(1) of the Supreme Court Act 1986, and that the respondents were not entitled to costs under section 133A of the Confiscation Act 1997. The court further found that the DPP's application to set aside the ex parte restraining order was not frivolous or vexatious and that the DPP had a reasonable prospect of success.

Orders