Bryce, Re [1995] QSC 162 [1996] 1 Qd R 15

IN THE SUPREME COURT OF QUEENSLAND Notice of Motion No. 643 of 1992 Brisbane Before Mr Justice Ambrose [Jeffrey Andrew Bryce] IN THE MATTER of Part III of the Crimes (Confiscation of Profits) Act 1989 - and - IN THE MATTER of an application by the Director of Prosecutions for a Restraining Order against specific property of JEFFREY ANDREW BRYCE REASONS FOR JUDGMENT - B.W. AMBROSE J. Judgment delivered 15/08/1995 CATCHWORDS: COSTS - Restraining order under Crimes (Confiscation) Act 1989 - Bryce acquitted on retrial - applicant to pay costs involving interlocutory orders. Counsel: Mr G. Cummings for the applicant Solicitors: Director of Prosecutions for the applicant Robertson O'Gorman for the respondent Hearing Date: 22 March 1995 -- 1 of 6 -- IN THE SUPREME COURT OF QUEENSLAND Notice of Motion No. 643 of 1992 Brisbane Before Mr Justice Ambrose [Jeffrey Andrew Bryce] IN THE MATTER of Part III of the Crimes (Confiscation of Profits) Act 1989 - and - IN THE MATTER of an application by the Director of Prosecutions for a Restraining Order against specific property of JEFFREY ANDREW BRYCE REASONS FOR JUDGMENT - B.W. AMBROSE J. Judgment delivered 15/08/1995 This is an application by the respondent for an order that the applicant Director of Prosecutions pay to him the costs he incurred in connection with an order that the Director obtained on 3 December 1992 pursuant to s.40 of the Crimes (Confiscation) Act 1989 restraining the disposition of the respondent's property after his conviction on 27 November 1992 in the District Court of criminal offences relating to dishonesty. Further orders extending the restraining order then made were made by Shanahan AJ on 10 December 1992 and White J on 29 July 1993. The respondent appealed against his conviction. That appeal was allowed on 24 June 1993 (reported as R v. Bryce (1994) 1 Qd R 77). A retrial of the respondent was ordered and this took place before another District Court Judge in July 1994. On this trial the respondent was acquitted of all offences charged. On 27 July 1994, Shepherdson J, pursuant to s.46(3)(b) of the Act, set aside that restraining order. -- 2 of 6 -- 2 I am informed that the respondent sought against the applicant Director an order for costs incurred with respect to the proceedings for the restraining order and this question was reserved. This is the only question that was argued before me upon this application. There is no contest in this matter as to the power of this Court to make the restraining order made in December 1994 or to extend it from time to time as was done in this case. Under s.40(20) it is provided: "The court may refuse to make a restraining order if the Crown, or the applicant on behalf of the Crown, refuses or fails to give to the Court such undertakings as the court thinks appropriate concerning the payment of damages or costs, or both, in relation to the making and operation of the order." Under s.23 of the Act, upon the conviction of a person for a serious offence, a forfeiture order may be made with respect to the property of the offender "tainted" in relation to the offence of which he has been convicted. The restraining orders made in this case were obviously made pursuant to that section with respect to the offender's property alleged to have been "tainted" in relation to the offences of which he was convicted on 27 November 1992. It is clear that upon the acquittal of the respondent upon his retrial for those offences in July 1994, the basis for any forfeiture order and the restraining order ancillary to it disappeared. The order made on 27 July 1994 setting aside that restraining order is explicable only on the basis that there was no statutory basis then in existence justifying its maintenance. It is clear on the material that costs reasonable and necessary may have been incurred by the respondent with respect to the making and discharging of the restraining order and the Director of Prosecutions does not contend to the contrary. Although it may amount to being wise after the event, it is now clear that the restraining -- 3 of 6 -- 3 order ought not to have been made. It ought not to have been made because although the respondent had been convicted of the offences charged against him, it emerged upon his appeal that he had been wrongly convicted. Upon the retrial ordered he was in fact acquitted. I have been referred to a number of authorities relating to awarding costs to a person who successfully defends summary proceedings taken against him in respect of a criminal offence. The principles to be applied in such a case were considered by the High Court in Latoudis v. Casey (1990) 50 A Crim R 287. In that case Mason CJ, at 291, observed, inter alia: "It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings." The restraining order obtained by the Director in the present case was essentially of an interlocutory kind. Its object was to preserve the status quo so that in the event of the respondent's convictions standing after time for appeal had expired or any appeal instituted had been dismissed, then a forfeiture order could be sought, obtained and enforced. Generally speaking, in civil litigation where an interim or interlocutory injunction designed to preserve the status quo between parties in conflict is obtained, an undertaking is required and the costs are reserved. The person obtaining the injunction will rarely and only in exceptional cases obtain the costs of obtaining it if he fails to vindicate in the action the right which the interim or interlocutory injunction has sought to preserve. On the facts of the present case, no material has been placed before me to suggest that there is anything out of the ordinary which would justify a refusal to order in effect that the respondent be indemnified in respect of the reasonable costs he incurred in connection with -- 4 of 6 -- 4 the making, extending and discharging of the restraining order against him. In my view, the undertaking given by the Director on the occasion when the restraining order was first made and on each of the occasions when its operation was extended was clearly given to persuade the judge involved to exercise his discretion under s.40 when considering the Director's application for the order. The undertakings given were in the following terms: "that the applicant will pay to any person adversely affected by the making or operation of this order such damages, if any, and costs, if any, as may have been incurred by the making or operation of this order as the court deems appropriate." It is quite unnecessary upon this application to express any views with respect to the question of "damages" which may be "appropriate" in the circumstances of this case. That question may well involve consideration of the principles enunciated in both the majority and minority judgments in Latoudis v. Casey (supra). However, as a matter of general principle, in the present circumstances it is indeed appropriate that the respondent ought be indemnified against the reasonable legal costs that he incurred in connection with the application for, and discharge of the restraining order made and extended as already indicated. The costs of arguing this opposed application for costs are to be included in the costs incurred by the making and operation of the restraining order. All proceedings with respect to the restraining orders have been in this Court. There has been no reason advanced as to why the costs ought not be taxed on that basis. Under s.40 of the Act, the application for the order and extensions of it could have been made in the District Court where the defendant was convicted of the offences against which he successfully appealed. No argument was advanced as to why in the circumstances the application to restrain disposition of tainted property was brought in this Court rather than in -- 5 of 6 -- 5 the District Court. In my view, it is proper that the respondent be indemnified in respect of the costs he reasonably incurred in the Court selected by the Director as the one appropriate in which to seek the restraining order. I order then that the Director of Prosecutions pay to Jeffrey Andrew Bryce in respect of the application for and extension and discharge of the restraining order procured in motion No. 643 of 1992, his costs of and incidental to those proceedings to be taxed on a party and party basis. -- 6 of 6 --