Diez v DPP [2004] NSWCA 452

Reported Decision : 151 A Crim R 343 62 NSWLR 1

New South Wales Court of Appeal

CITATION : Diez v DPP [2004] NSWCA 452 HEARING DATE(S) : 17 September 2004 JUDGMENT DATE : 9 December 2004

JUDGMENT OF : Beazley JA at 1; Santow JA at 2; Tobias JA at 64 DECISION : Appeal allowed with costs.

CATCHWORDS : COSTS - cost orders against the Commonwealth - DPP obtained restraining order in respect of appellant's interests in property - appellant serving life sentence following conviction under s233B Customs Act 1901 (Cth) - court below made orders pursuant to ss48(3)(g) and 48(4) Proceeds of Crime Act 1987 (Cth) - whether recovery of costs under s101 Proceeds of Crime Act 1987 (Cth) excludes the Supreme Court's wider power to order costs against a party including the Commonwealth in applications within the ambit of s101 - scope of that ambit - whether s101 constitutes an exclusive cost recovery code against the Commonwealth for applications to exempt property from forfeiture or restraint under the Act - whether applications under the Act of that character are limited to applications described in s101(1)(a) - whether court's discretion to order costs against the Commonwealth is wholly dependent on applicant satisfying s101 and all its conditions Judiciary Act 1903 (Cth) s64; s79 LEGISLATION CITED : Proceeds of Crime Act 1987 (Cth) s30; s43; s48; s101 Supreme Court Act 1970 s76 Supreme Court Rules Part 52A r11 Bissett v Commonwealth DPP (SC(Vic), 24 February 1993, unreported) Commonwealth DPP v Adjornay [2000] NSWSC 76 Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 CASES CITED : DPP (Cth) v Chan (2001) 52 NSWLR 56 DPP (Cth) v Saxon (1992) 28 NSWLR 263 Finance Facilities Pty Limited v the Federal Commissioner of Taxation (1970-71) 127 CLR 106 Oshlack v Richmond River Council (1998) 193 CLR 72 PARTIES : Maximiliano DIEZ (Appellant) DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) FILE NUMBER(S) : CA 41084/03 COUNSEL : S J ODGERS, SC/ G JONES (Appellant) D J FAGAN, SC/T MUIR (Respondent) SOLICITORS : Freemans (Appellant) Commonwealth Director of Public Prosecutions (Respondent)