Nguyen v DPP & Attorney-General

(2019) 59 VR 27; [2019] VSCA 20

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Constitutional Law (Cth)
2. › Kable principle
3. › State legislation conferring functions on State courts
4. › Institutional integrity of courts as repositories of federal jurisdiction
5. › Whether unexplained wealth restraining order scheme substantially impairs institutional integrity
6. › Ex parte orders with self-executing forfeiture
7. › Whether scheme preserves right to inter partes hearing
8. › Confiscation Act 1997 (Vic), ss 40F, 40H, 40I, 40W, 40ZA
9. › Constitution, Ch III
1. Confiscation
2. › Unexplained wealth restraining orders
3. › Ex parte application
4. › Self-executing forfeiture orders
5. › Procedural fairness
6. › Whether inherent or implied powers of court to observe rules of natural justice excluded
7. › Power of court to direct notice be given to affected party
8. › Power of court to set aside ex parte order
9. › Whether Part 4A is a code
10. › Confiscation Act 1997 (Vic), ss 40F, 40H, 40I, 40J, 40K, 40R, 40S, 40T, 40W, 40X, 40ZA-ZD
1. Statutory Interpretation
2. › Principle of legality
3. › Construction of confiscation legislation
4. › Whether broad discretionary power encompasses power to set aside ex parte orders
5. › Whether statutory scheme operates as exhaustive code
6. › Confiscation Act 1997 (Vic), s 40W
7. › Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 24(1), 32(1)
1. Practice and Procedure
2. › Appeal
3. › Leave to raise new point on appeal
4. › Constitutional challenge raised for first time
5. › Whether interests of justice favour grant of leave

Quick Take

Section 40I of the Confiscation Act 1997 (Vic) is constitutionally valid. The Act preserves the inherent or implied power of courts to set aside unexplained wealth restraining orders obtained ex parte, and s 40W provides an additional statutory source of power to do so. Part 4A does not operate as a code excluding general court powers. The broad discretionary power under s 40W encompasses the power to set aside ex parte orders for breach of the duty of full disclosure, but this power is not available after forfeiture has occurred.