New South Wales Supreme Court CITATION : Director of Public Prosecutions (Cth) v Geraghty [2000] NSWSC 911 FILE NUMBER(S) : SC 11375/97 HEARING DATE(S) : 31 August 2000 JUDGMENT DATE : 13 September 2000 PARTIES : Director of Public Prosecutions (Cth) - Plaintiff/Respondent Kevin Michael GERAGHTY - Defendant/Applicant JUDGMENT OF : Simpson J at 1 COUNSEL : Mr F Veltro - Plaintiff/Respondent Mr S Motbey - 2,3,4 Defendants/Applicants SOLICITORS : Commonwealth Director of Public Prosecutions - Plaintiff/Respondent Barry Geraghty - 2,3,4 Defendants/Applicants LEGISLATION CITED : Proceeds of Crime Act 1987 (Cth) Supreme Court Act 1970 DECISION : DPP ordered to pay the applicants' costs of and incidental to their examination before the registrar THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SIMPSON J 13 September 2000 11375/97 DIRECTOR OF PUBLIC PROSECUTIONS (Cth) v Kevin Michael GERAGHTY Judgment HER HONOUR : 1 This judgment is concerned solely with an issue of costs, which arises as a result of proceedings brought by the plaintiff, the Director of Public Prosecutions for the Commonwealth, against Kevin Michael Geraghty, ("Geraghty") under the Proceeds of Crime Act 1987 (Cth) ("the Act"). The application for costs is made by John Magee, Maree Woodcroft, and Anthony Woodcroft, to whom I will refer as "the applicants". History 2 On 5 May 1997 Geraghty was arrested and charged with offences involving the importation and supply of cocaine and conspiracy to money launder. 3 On 8 May 1997 the DPP commenced proceedings against Geraghty under the Act. On that day a restraining order under s 43(2)(a) was made. The order applied to all of Geraghty's property and was subsequently extended on at least two occasions. 4 On 24 July 1997 orders were made for the examination of the applicants. These were made under s 48(1)(c) of the Act which relevantly provides that, at the time it makes a restraining order, the court may make any ancillary orders, including an order for the examination on oath before the court or the registrar of the court, of any person about the affairs (including the nature and location of any property) of the defendant in the proceedings. Geraghty was the defendant in the proceedings. The purpose of the DPP in seeking the order for the examination of the applicants on oath was to obtain information about Geraghty's affairs. In particular, the DPP sought to explore whether Geraghty had a beneficial interest in real property at 23 Surfside Avenue, Clovelly, of which the applicants were jointly the registered proprietors. 5 On 2, 3 and 10-11 November 1997 respectively the applicants (Magee, Maree Woodcroft and Anthony Woodcroft) were examined before a registrar of the court pursuant to the s 48(1)(c) order. At this time none of the applicants was a party to the proceedings. 6 Each sought legal advice and incurred legal costs in relation to the examination. 7 On 26 November 1999, on the application of the DPP, the applicants were joined as parties to the proceedings. On that day a restraining order was made in relation to the Clovelly property. That order was expressed to remain in force until 9 December 1999, but was continued, by consent, on 9 December 1999 without temporal limitation as to its operation. 8 On 29 May 2000, for reasons that are not now material, the Court of Appeal set aside these orders. The proceedings in this Division, however, appear to have remained alive. On 3 August 2000 they were listed before O'Keefe J. Further consent orders were made on that date. In substance, the parties agreed to an order that the proceedings against the applicants be dismissed and costs reserved. However, the order that the proceedings be dismissed was expressly made subject to the qualification that that order would not prevent the DPP bringing later proceedings in respect of the Clovelly property. The parties envisaged that the DPP might make an application under s30(8A) of the Act, which permits application to the court for a declaration that property has been forfeited to the Commonwealth in certain circumstances. However, no such application has been made. No decision as to whether such an application will be made has been made by the DPP. 9 So far as the matters between the DPP and the applicants are concerned, therefore, there is nothing, other than costs, which is outstanding. 10 The applicants' legal representative notified the DPP of their intention to seek an order for costs. The DPP advised that he did not oppose the application in so far as it related to costs incurred between 26 November 1999 (the date on which the applicants were joined as parties, and the date of the first order restraining any dealing with the Clovelly property) and 9 December 1999. (It seems that the question of costs in relation to proceedings after 9 December 1999 was disposed of by the Court of Appeal proceedings.) 11 The DPP, however, asserted that the applicants were not entitled to costs of their examinations, and it is only the question of the costs incurred in relation to that procedure that now calls for determination. 12 S76 of the Supreme Court Act 1970, and Part 52A of the Supreme Court Rules, govern (in the absence of specific legislation) questions of costs in the court. Generally, costs are in the discretion of the court, the court has full power to determine by whom and to what extent costs are to be paid and the court may order costs to be assessed, and the basis on which they are to be assessed. By s76(2) "costs" includes costs of or incidental to proceedings in the court. 13 By SCR 52A R11, again subject to other provisions, if it makes any order as to costs the court is to order that costs follow the event, except where it appears that some other order should be made as to the whole or any part of the costs. 14 The nature of the proceeding in which the applicants were involved does not fit readily into the language or scheme of the Supreme Court Act and Rules, that proceeding being a creature of a statute that post-dates and was not envisaged at the time of drafting, the Supreme Court legislation. The correct approach, I think, is to consider what was the nature of the proceeding before the registrar and what the DPP sought to achieve by having the applicants examined. It was common ground that what he sought to do was ascertain whether there was any basis for a finding that they were not the beneficial owners of the Clovelly property. 15 I am satisfied that the costs incurred by the applicants were costs of and incidental to proceedings in the court, notwithstanding that the applicants were not parties at the time of the examinations. The proceedings having concluded in favour of the applicants, I see no reason of discretion why they would not be entitled to such an order. I would have taken a different view, and deferred ruling on the application, had there been any extant proceedings against the applicants, or in relation to the Clovelly property, but, since there are no such proceedings, and since the DPP was not in a position to advise that such proceedings were to be taken, I do not see the vague contemplation of an application for a declaration under s 30(8A) as a reason against exercising the discretion in favour of the applicants. 16 On behalf of the DPP it was argued that proceedings under s 48(1) are investigatory and not adversarial, and that they therefore should not attract an order for costs in the same way as adversarial litigation. It may well be (indeed it is) the case, that the proceedings were essentially an inquiry, but the clear purpose was to enable the DPP to attempt to dislodge the applicants' entitlement to what is, in law, their property; it is quite plain that the applicant's property was at risk as a result of these proceedings, and I am not attracted to any argument that they should be treated differently to any other litigants in the court who incur legal costs as a result of proceedings instituted against them. (In saying this I do not intend to imply that, at the time of the examinations, they were formally in a position of having proceedings taken against them, but it is clear that they had significant interests which required legal advice and representation.) 17 Counsel also referred to the principal objects of the Act, as set out in s3, and argued that to award costs would be to diminish the effectiveness of law enforcement activity, and would be contrary to the objects specified. I do not see anything in s3 that favours the view that individuals who have been put to expense as a consequence of proceedings in the court, and who are successful, should not be entitled to recover the costs. 18 The argument based on the inquisitorial balance of the proceedings is not without appeal, but as no authority was cited, and as the true purpose of the proceedings was as I have outlined, I am unpersuaded that it should be accepted so as to present the applicants recovering the costs they incurred. 19 Reference was made, by way of pre-emptive argument by counsel for the applicants, to s 101 of the Act, which specifically deals with costs. The section provides for orders for costs in specified circumstances that do not include the present circumstances. S 101 does not speak in relation to the issue I have to decide. There is nothing in s 101 that excludes the ordinary provisions as to the award of costs by this court and I do not regard it as confining the power of the court. 20 I order the DPP to pay the applicants' costs of and incidental to their examination before the registrar. ********* Last Modified: 09/27/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.