Commissioner of the Australian Federal Police v Opal Storm Pty Ltd

[2018] VSCA 301

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Appeal against costs order
4. › Leave to appeal
5. › Whether primary judge erred in exercise of costs discretion
6. › Whether costs should only be awarded to Commissioner 'sparingly' in Proceeds of Crime Act proceedings
7. › Whether House v The King error demonstrated
8. › Whether exceptional circumstances and substantial injustice shown
9. › Proceeds of Crime Act 2002 (Cth)
10. › Supreme Court Act 1986 (Vic), ss 14A, 14C
1. Practice and Procedure
2. › Costs
3. › Proceeds of Crime Act 2002 (Cth)
4. › Civil character of proceedings
5. › Whether Commissioner in same position as ordinary civil litigant for costs purposes
6. › Whether usual rule that costs follow the event applies
7. › Judiciary Act 1903 (Cth), s 64
1. Appeal
2. › Leave to appeal
3. › Costs orders
4. › Residual discretion to refuse leave
5. › Whether real prospect of success sufficient
6. › Whether exceptional circumstances required
7. › Whether substantial injustice must be shown
8. › Supreme Court Act 1986 (Vic), ss 14A, 14C

Quick Take

There is no presumption against awarding costs to the Commissioner of the AFP in Proceeds of Crime Act proceedings; the usual rule that costs follow the event applies as the starting point, though the quasi-criminal nature and harsh operation of the Act may be relevant to the exercise of discretion in individual cases. Demonstrating House v The King error in a costs order is necessary but not sufficient for leave to appeal; exceptional circumstances and substantial injustice must also be shown.