Time limits most commonly missed in relation to confiscation, a claim example and lesson learned.
What's on this page?
Confiscation limitations
| Action | Time limit | Legislation | Extension availability |
|---|---|---|---|
|
Action
Application to exclude assets from a restraining order |
Time limit
30 days from service of notice of making of the restraining order (where notice is required under s.19(1)) or in any other case within 30 days after the making of the restraining order |
Legislation
s.20 Confiscation Act 1997 (Vic) |
Extension availability
The court can extend time if it is in the interest of justice to do so – s.20(1B) Confiscation Act 1997 (Vic). The court may not extend the period within which an application may be made in respect of property that has been forfeited by or under the Act s.20(1C) Confiscation Act 1997 (Vic). The extension of time cannot be beyond 60 days after the later of the conviction or the making of the restraining order s.35(2A) Confiscation Act 1997 (Vic). |
Claim example
A practitioner acted for a client regarding a criminal charge. Following the client’s arrest, a restraining order pursuant to section 15 of the Confiscation Act 1997 (Vic) was made over two of the client’s properties and a bank account. The practitioner advised that the client could apply to have property that was untainted by proceeds of crime excluded from the restraining order and a potential forfeiture order. However, the practitioner did not tell the client that under section 20(1A) of the Act the application needed to be made within 30 days of the restraining order.
The client was convicted three months later. After another three months the client received an order made under section 35 of the Act forfeiting the properties and the bank account to the Minister. The client provided a copy of the order to the practitioner one week later.
The practitioner was then instructed to apply to have one of the properties and the bank account excluded from the order on the basis they were lawfully acquired and not tainted by proceeds of crime. However, the property was forfeited because the application was not made within 30 days of the restraining order. An application for leave to extend the time was also out of time because it needed to be made before forfeiture pursuant to section 20(1C). Under section 35(1), property is automatically forfeited 60 days after the making of a restraining order or 60 days after conviction, whichever is later.
The practitioner had not made an application to exclude property from forfeiture within time. He wrongly believed he would have time to apply for the exclusion order after receiving an application for the forfeiture order. In fact no application for a forfeiture order was required and the practitioner was wrong about when the application for exclusion could be made. He later acknowledged this was the first time he had to make such an application and had failed to check the legislation about timing.
Lesson
- Always double-check the relevant legislation to ascertain the steps required to be taken and the applicable time limit. This is especially important when acting in an area of law that is unfamiliar.
