Confiscation proceedings – at what cost?
On 4 April 2007, the Court of Appeal (Maxwell P, Chernov and Neave JJA) handed down their cost ruling in DPP v Phan Thi Le (No2) [2007] VSCA 57.
That ruling relates exclusively to the interpretation of s.133A of the Confiscation Act, being the section that deals with costs in confiscation proceedings.
Until yesterday’s cost ruling, s.133A had been interpreted as “covering the field” in respect of costs in confiscation proceedings. See the decision of Teague J in Re Moran [2004] VSC 421.
The question of costs in confiscation proceedings has historically been applied as follows:
- that costs cannot be awarded in favour of the DPP; and
- that cost orders can only be made in favour of third party applicants who obtain exclusion orders, successfully oppose forfeiture or prevent a restraining order being made.
However, in DPP v Le (No2) the Court unanimously held that s.133A “leaves untouched the general costs power”.
Further, the Court commented that, where a successful applicant for exclusion seeks costs under s.133A, the costs’ order is likely to be for “all costs incurred”, as opposed to party / party costs.
The effect of the Court’s decision appears to be that costs can now be ordered in confiscation matters as in any other civil proceeding.
Importantly, it appears that the DPP can now seek costs where the Crown succeeds in its applications.
This clearly is a matter that practitioners should bring to the attention of their clients before embarking on confiscation litigation.
Further, it is likely that costs orders will now be made in respect of interlocutory applications, such as applications for adjournments or the vacation of hearing dates.
