DPP (CTH) v. DIEZ [2005] NSWSC 306

New South Wales Supreme Court

CITATION : DPP (CTH) v. DIEZ [2005] NSWSC 306

HEARING DATE(S) : 31/03/05

JUDGMENT DATE : 15 April 2005

JURISDICTION : COMMON LAW

JUDGMENT OF : Greg James J at 1

DECISION : The plaintiff is to pay the defendants costs on a party, party basis.

CATCHWORDS : Costs - Proceeds of Crime - Defendant successful in having property excluded from forfeiture in discretion - consideration of matters to be taken into account on costs and on indemnity costs.

LEGISLATION CITED : Proceeds of Crime Act 1987 (Cth)

Bissett v Commonwealth DPP SC (Vic), 24 February 1993 (unreported) Oshlack v Richmond River Council (1998) 193 CLR 72 CASES CITED : The Queen v Dietrich (1992) 177 CLR 292 Latoudis v Casey (1990) 170 CLR 534

PARTIES : COMMONWEATH DIRECTOR OF PUBLIC PROSECUTIONS v. MAXIMILIANO DIEZ

FILE NUMBER(S) : SC No 10408 of 2000

Plaintiff: T Muir COUNSEL : Defendant: G Jones

Plaintiff: Commonwealth DPP SOLICITORS : Defendant: Freemans Solicitors

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GREG JAMES, J.

15 APRIL 2005

No 10408 of 2000

COMMONWEATH DIRECTOR OF PUBLIC PROSECUTIONS v. MAXIMILIANO DIEZ

JUDGMENT 1 HIS HONOUR: The Court of Appeal in Diez v DPP 2004 NSWCA 452, unanimously concluded that the order I had made on 28 October 2003, declining to order costs in favour of the defendant, Mr Diez, be set aside and the question of the costs of the proceeding be remitted for determination, in accordance with the reasons given by the Court of Appeal. The salient facts are set out by the Court of Appeal in that judgment. I need not repeat them here. 2 The relevant statutory provisions are also set out in that judgment, again I need not repeat them. In that judgment the court had regard, not only to the statutory provisions of the Proceeds of Crime Act 1987 (Cth), but also to the statutory and general basis for making costs orders against the Commonwealth. The Court noted that it was common ground that Section 101 (1) of the Act, provided for a discretion to award costs in the event that the conditions referred to in paragraph (a), (b), (c) of Section 101 (1) are satisfied. In the judgment of Santow JA, appears the following;- 47 That rather suggests that there is no exhaustive code at all under s101 of the Act. Rather there is simply a non-exclusive delineation of a set of circumstances in which the court has a discretion to order all, some, or no costs against the Commonwealth. Bissett then points to the strong likelihood that even if s101 were not exhaustive, nonetheless courts would in practice rarely if ever award costs against the Commonwealth when the conditions in s101 were not made out.