Finn v DPP [2011] VSC 234 – Application for extension of time within which to make application for exclusion
On 2 June 2011, Dixon J delivered oral reasons in relation to several applications for an extension of time under section 20(1B) of the Confiscation Act within which to make applications for exclusion. Written reasons were published today.
The Facts
On 16 November 2007, restraining orders were made over five houses, a motor vehicle and a sum of cash. In the usual way, the application for the restraining order was made ex parte after the alleged offenders, Matthew and Wayne Finn, had been charged with Schedule 2 (automatic forfeiture) offences.
As a result of an oversight by the solicitor no applications for exclusion were filed until 2 May 2011. The applications for exclusion should have been filed within 30 days of the date on which the restraining orders were served. Hence, the applications were made approximately 3½ years late.
When the solicitor became aware of the failure to file the applications for exclusion, she immediately filed applications seeking an extension of time.
The Relevant Principles
Dixon J noted that there had been no judicial consideration of the principles relevant to an extension of time under section 20(1B) of the Confiscation Act.
Referring to applications for extensions of time in other contexts, Dixon J referred to the decision of the Court of Appeal in Luxmore Pty Ltd v Hydedale Pty Ltd, where Maxwell P and Kellam JA stated:
“The interests of justice will almost always require than an extension of this kind be granted where there is an explanation for the non-compliance and there is no irremediable prejudice to the other party. Of course there will be circumstances in which the appeal is so obviously hopeless that the Court could be satisfied that the extension would really be futile.”
At [17], Dixon J observed the following:
“Bearing these general principles in mind, I consider that the additional considerations which would ordinarily be addressed on an application under section 20(1B) include:
- the period of delay;
- explanations for the delay and the reasons advanced to justify delay being excused;
- whether there is any injustice or prejudice to any applicant for exclusion if the period is not extended;
- whether there is any irremediable prejudice to the Director if the period is extended;
- whether the prospect of success of the application is realistic, not fanciful;
- the history of the proceedings under the Act and of the prosecution of the charges faced by the defendant; and
- the statutory context of orders providing exclusion from restraining orders.”
At [20], Dixon J noted that the exercise of the discretion to extend time prior to conviction does not affect vested forfeiture rights. Further, at [22], Dixon J observed that the real, substantial and draconian effect of automatic forfeiture is an important consideration in exercising the discretion to extend the period for an exclusion application. His Honour observed
“Assessed on the balance of probabilities, strict compliance with a statutory time limit is likely to work an injustice upon an applicant. These considerations invite a liberal approach in favour of an applicant to the application under section 20(1B) to extend the period.”
In granting the applications for extension of time, Dixon J observed at [30]
“There is, I consider, a substantial risk of prejudice to the applicants in the event that the period is not extended. Forfeiture would automatically follow on conviction, on the basis of a restraining order obtained on an ex parte application, without any opportunity for consideration of the merits of claims to interests in the property in competition with the statutory forfeiture rights of the State of Victoria. The right to be heard in relation to such competing interests before that draconian consequence would be extinguished by a mere 30-day time limit enforced at the time charges are laid rather than the time of conviction.”
Importantly, Dixon J made reference to section 20(6) of the Confiscation Act which, in essence, provides that a defendant charged with Schedule 2 offences need not give notice of grounds on which an application for exclusion is made until the charge against that defendant is finally determined or is withdrawn. Relying upon that section, his Honour observed at [32]:
“The section provides justification for giving little or no weight to the merits of the application, whether the prospects of success are more than fanciful, when exercising the discretion to extend time under section 20(1B).”
The thrust of his Honour’s ruling is that a defendant charged with Schedule 2 offences need not provide any significant evidence going to the merits of an application for exclusion in seeking an extension of time.
Dixon J found that the affidavits upon which the applicants relied were sufficient and observed, at [34]:
“I consider that the statements on oath, not challenged by the Director at this stage, are adequate. Further, the assertions on oath that the property is not tainted property, is not derived property or will not be required to satisfy any pecuniary penalty order, or an order for restitution or compensation, are plainly matters which the Director could if so minded, have challenged.”
Conclusion
The decision provides helpful guidance to practitioners in making applications for an extension of time under section 20(1B) of the Confiscation Act.
In short, the decision should greatly assist any such applicant since it points up the fact that the failure to extend time would result in significant prejudice to an applicant whilst there is unlikely to be any prejudice suffered by the Director if an extension of time is granted.
It further highlights the fact that, although an explanation for the delay is necessary, when acting for a defendant charged with Schedule 2 offences no significant evidence needs to be given in relation to the merits of the application, having regard to section 20(6) of the Confiscation Act.
