Victorian Current Acts Victorian Current Acts(1) If a court makes an unexplained wealth restraining order against property, any person claiming an interest in the property may apply to the court that made that order for a section 40S exclusion order.
(2) An application under subsection (1) must be made—
(a) if notice is required to be given under section 40J—within 90 days after service of notice of the making of the unexplained wealth restraining order; or
(b) in any other case—within 90 days after the making of the unexplained wealth restraining order.
(3) Subject to subsection (4), the court may extend the period within which an application may be made, whether or not that period has expired, if it is in the interests of justice to do so.
(4) 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 this Act.
(5) An applicant must give notice of the application, and, subject to subsection (10), of the grounds on which it is made—
(a) to the applicant for the unexplained wealth restraining order; and
(b) to any other person whom the applicant has reason to believe has an interest in the property.
(6) Any person referred to in subsection (5) is entitled to appear and to give evidence at the hearing of an application for a section 40S exclusion order but the absence of that person does not prevent the court from making a section 40S exclusion order.
(7) If the person referred to in subsection (5)(a) proposes to contest an application for a section 40S exclusion order, that person must give the applicant notice of the grounds on which the application is to be contested.
(8) If a person claiming an interest in the property is charged with an offence, any statement made or evidence given by the person in support of an application under this section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.
(9) If a person claiming an interest in the property is charged with an offence, any information, document or thing obtained as a direct or indirect consequence of any statement made or evidence given by the person in support of an application under this section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.
(10) If—
(a) a person applies under this section for a section 40S exclusion order; and
(b) that person is charged with an offence relevant to the application for the section 40S exclusion order; and
(c) that person has made an application under subsection (11)—
the person need not give notice of the grounds on which the application for the section 40S exclusion order is made until the application under subsection (11) has been determined.
(11) Any person referred to in subsection (5) may apply to the court for an order that the hearing of the application for a section 40S exclusion order be stayed until the charge referred to in subsection (10)(b)—
(a) is finally determined; or
(b) is withdrawn.
(12) The court may only order that the hearing of the application for a section 40S exclusion order be stayed if the court considers that not ordering a stay of the hearing would prejudice the fairness of the hearing of the charge.
Notes
1 Section 40C provides that an unexplained wealth restraining order may be made in respect of property or an interest in property.
2 Section 40W enables the court to make orders varying the property to which the unexplained wealth restraining order relates.
S. 40S inserted by No. 79/2014 s. 16.