New South Wales Crime Commission v D154 [2019] NSWSC 1

New South Wales Crime Commission v D154 [2019] NSWSC 1

Although r 36.16(2)(b) permitted the Court to consider evidence and submissions about present circumstances bearing on the grant of leave, the asserted change in circumstances was not sufficiently significant because it could not be assumed that charges against co-accused would soon cease to be current charges or that the Commission would shortly be able to examine them without restriction. The constitutional challenge to s 35A was an abuse of process because it could have been raised in the earlier Court of Appeal proceedings, and in any event was answered by the Court of Appeal's conclusion that s 35A confers a judicial power. The grounds for setting aside the orders were therefore not...

Jurisdiction
Australia
Judgment Date
10 January 2019
Procedural Posture
Notice of Motion Under R 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (nsw) to Set Aside Ex Parte Orders Granting Leave Under S 35 a of the Crime Commission Act 2012 (nsw) / Determination of Notice of Motion Filed 3 May 2016
Outcome
Notice of Motion dismissed; costs on an ordinary basis in favour of the New South Wales Crime Commission.
Legal Topics
['crime Commission Examination Powers' 'ex Parte Orders' 'setting Aside or Varying Orders' 'current Criminal Charges' 'chapter III of the Constitution' 'abuse of Process']
['criminal Law' 'civil Procedure' 'constitutional Law'] ['crime Commission Examination Powers' 'ex Parte Orders' 'setting Aside or Varying Orders' 'current Criminal Charges' 'chapter III of the Constitution' 'abuse of Process']

Case Brief

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Procedural Posture

Notice of Motion Under R 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (nsw) to Set Aside Ex Parte Orders Granting Leave Under S 35 a of the Crime Commission Act 2012 (nsw) / Determination of Notice of Motion Filed 3 May 2016

Legal Issues

  1. 1 ['Whether r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) permitted the Court to consider evidence and submissions about changed circumstances after the ex parte orders were made.' 'Whether the asserted progress of related criminal proceedings made it inappropriate for the Commission to retain leave to examine D154 under s 35A of the Crime Commission Act 2012 (NSW).' 'Whether s 35A of the Crime Commission Act 2012 (NSW) was unconstitutional because it conferred an executive or administrative function on the Supreme Court inconsistent with Ch III of the Constitution.' "Whether D154's constitutional argument was an abuse of process because related constitutional questions had already been determined by the Court of Appeal."]

Ratio Decidendi

Although r 36.16(2)(b) permitted the Court to consider evidence and submissions about present circumstances bearing on the grant of leave, the asserted change in circumstances was not sufficiently significant because it could not be assumed that charges against co-accused would soon cease to be current charges or that the Commission would shortly be able to examine them without restriction. The constitutional challenge to s 35A was an abuse of process because it could have been raised in the earlier Court of Appeal proceedings, and in any event was answered by the Court of Appeal's conclusion that s 35A confers a judicial power. The grounds for setting aside the orders were therefore not...

Court Disposition

Notice of Motion dismissed; costs on an ordinary basis in favour of the New South Wales Crime Commission.

Orders

  • ['The Notice of Motion filed by D154 on 3 May 2016 is dismissed.' 'Costs on an ordinary basis in favour of the New South Wales Crime Commission.']