State of Queensland v. Nuttall

[2007] QSC 80

SUPREME COURT OF QUEENSLAND

CITATION:

State of Queensland v Nuttall [2007] QSC 080

PARTIES:

STATE OF QUEENSLAND
(applicant)

v

GORDON RICHARD NUTTALL
(respondent);

QUEENSLAND NEWSPAPERS PTY LTD
(by leave)

FILE NO/S:

BS527 of 2007

DIVISION:

Trial Division

PROCEEDING:

Determination of Costs

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

11 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

29 March 2007

JUDGE:

Moynihan J

ORDER:

1.        No order as to costs.

CATCHWORDS:

COSTS – Rule 680, Uniform Civil Procedure Rules 1999 (Qld) exception to general rule - where applicant obtained a restraining order against the respondent under the Criminal Proceeds Confiscation Act 2002 (Qld) – where respondent sought an order suppressing material relied upon to sustain restraining order - where Queensland Newspapers granted leave to appear and oppose suppression order – whether the respondent should pay the costs of Queensland Newspapers

Criminal Proceeds Confiscation Act 2002 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), 680, 689
Jeffrey v DPP (Cth) (1995) A Crim R 514, considered
DPP v Toro-Martinez (1993) 33 NSWLR 82, considered

COUNSEL:

Michael Byrne QC for the respondent.
DC Spence by leave.

SOLICITORS:

Carne Reidy Herd for the respondent.

Thynne & Macartney by leave.

1. There is an issue as to the order for costs to be made in these proceedings.

1. It arises in proceedings between the State of Queensland and the respondent under the Criminal Proceeds Confiscation Act 2002 (Qld) (the Act) and is between the respondent and the applicant by leave.

1. The legislation permits the State to obtain a restraining order against a respondent who has not been convicted of an offence on material which tends to show, on the balance of probabilities, that a respondent had engaged in serious crime related activity as defined by the Act. 

1. The affidavits in support of the State’s application contained material which was untested, inadmissible in a trial and from which a number of inferences prejudicial to the respondent to the State’s applications could be drawn.

1. On the hearing of the State’s application a restraining order was made.  The respondent sought an order suppressing the material relied on to sustain the restraining order on the grounds that it was prejudicial to a fair trial.  That was a legitimate concern in the circumstances and the respondent might be regarded as having reasonable prospects of success in obtaining a suppression order. 

1. Queensland Newspapers sought and obtained leave to appear and succeeded in an argument that on balance the public interest should be served by the material not being suppressed.  Queensland Newspapers of course publishing the leading newspaper in the state.  Apart from public interest consideration its readers might be thought to be interested in the matters dealt with in the State’s application.

1. The State’s position with respect to the application for the suppression order was that it neither consented to nor opposed it.  It made no submission in respect of the costs in issue here.

1. UCPR 689 deals with the general rule about costs and provides that costs of a proceeding, including an application in the proceeding are in the discretion of the court but follow the event unless the court considers otherwise.

1. Proceedings under the Act are designed to preserve assets until the determination of criminal proceedings in which a conviction would provide a basis for establishing that the assets were unlawfully obtained and so forfeited. 

1. The usual evidentiary and procedural protections afforded to persons suspected of criminal offences do not apply to such applications.  The exceptional nature of the legislation has been adverted to in Jeffrey v DPP(Cth) (1995) 79 A Crim R 514 at 517 and DPP v Toro-Martinez (1993) 33 NSWLR 82.

1. Those considerations together with the potential effect on the criminal trial of the material relied on to obtain the order under the Act are relevant to whether there should be an exception to the general rule under UCPR 680.

1. The proceedings in which the Queensland Newspapers application for joinder was made were not instigated by the respondent.  Queensland Newspapers was not a party and not entitled to appear as a matter of right but obtained leave justified in the particular circumstances.

1. In those circumstances it does not seem to me that the respondent should bear the costs of Queensland Newspapers and as I have said the order should be that there is no order as to costs.