Proceeds of Crime Act 2002

CHAPTER 2 - THE CONFISCATION SCHEME

PART 2-3 - FORFEITURE ON CONVICTION OF A SERIOUS OFFENCE

Division 3 - Recovery of forfeited property

SECTION 104 Applying for an order under section 102

104(1)

A person who claims an *interest in property that has been forfeited to the Commonwealth under section 92 may, at any time after the forfeiture, apply to the court that made the *restraining order referred to in paragraph 92(1)(b) for an order under section 102 .

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104(2)
However, unless the court gives leave, the person cannot make an application for an order under section 102 if he or she:

(a) either:

(i) was given a notice under subsection 92A(1) in relation to the property; or

(ii) was not given such a notice because of subsection 92A(2) ; and

(b) either:

(i) did not make an application under section 29 or 94 in relation to the property; or

(ii) made such an application and appeared at the hearing of the application.

104(3)
The court may give the person leave to apply if the court is satisfied that:

(a) if subparagraph (2)(b)(i) applies - the person had a good reason for not making an application under section 29 or 94 ; or

(b) if subparagraph (2)(b)(ii) applies - the person now has evidence relevant to the person's application under this section that was not available at the time of the hearing; or

(c) in either case - there are other special grounds for granting the leave.

104(4)

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The applicant must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.

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104(5)

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The *responsible authority may appear and adduce evidence at the hearing of the application.

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104(6)

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The *responsible authority must give the applicant notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.

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104(7)

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The application must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.

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History

S 104 substituted by No 4 of 2010, s 3 and Sch 1 item 63, applicable in relation to property covered by restraining orders made on or after 20 February 2010, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. S 104 formerly read:

SECTION 104 Applying for orders under sections 102 and 103
104(1)
An application for an order under section 102 or 103 must, unless the court gives leave under subsection (2), be made before the end of the period of 6 months commencing on the day on which the property to which the application relates is forfeited to the Commonwealth.

104(2)
The court may give a person leave to apply after the end of that period if the court is satisfied that the delay in making the application is not due to neglect on the part of the applicant.

104(3)
A person who was given notice of:

(a) proceedings for the application for the * restraining order by virtue of which the property is forfeited; or

(b) the making of the restraining order;
must not apply for an order under section 102 or 103 relating to the property unless the court gives leave under subsection (4).

104(4)
The court may give a person leave to apply if the court is satisfied that the person ' s failure to seek to have the property excluded from the forfeiture by an order under section 94 was not due to any neglect on the part of the applicant.

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