NSW Crime Commission v Ibrahim & Anor [2002] NSWSC 791

NSW Crime Commission v Ibrahim & Anor [2002] NSWSC 791

The orders made on 9 April 2001 were set aside because the applicants were not heard due to human error by which their solicitor did not become aware of the hearing in time, and because the Commission had material information about the solicitor's request that the matter not proceed which was not conveyed to the Court. Simpson J would not have made, or would have vacated, the forfeiture orders had that conversation been disclosed. Despite substantial unexplained delay, common justice required the orders to be set aside, particularly because the Crown had suffered no irremediable prejudice while the property remained subject to a restraining order.

Jurisdiction
Australia
Judgment Date
06 September 2002
Procedural Posture
Notice of Motion to Set Aside Assets Forfeiture Orders / Application Under Pt 40 R 9 After Orders Were Made in the Applicants' Absence on 9 April 2001
Outcome
Notice of motion granted; orders made on 9 April 2001 set aside.
Legal Topics
['ex Parte Orders' 'setting Aside Orders Made in Absence of a Party' 'duty of Candour on Ex Parte Applications' 'assets Forfeiture Orders' 'restraining Orders']
['practice and Procedure' 'criminal Assets Recovery'] ['ex Parte Orders' 'setting Aside Orders Made in Absence of a Party' 'duty of Candour on Ex Parte Applications' 'assets Forfeiture Orders' 'restraining Orders']

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Procedural Posture

Notice of Motion to Set Aside Assets Forfeiture Orders / Application Under Pt 40 R 9 After Orders Were Made in the Applicants' Absence on 9 April 2001

Legal Issues

  1. 1 ['Whether the assets forfeiture orders made on 9 April 2001 in the absence of Romeo Shaul Ibrahim and Maria Margherita Ibrahim should be set aside under Pt 40 r 9.' "Whether common justice required the orders to be set aside where the applicants' solicitor was unaware of the fixture until shortly before the hearing." "Whether the Commission was obliged to inform the Court of the solicitor's conversation indicating that the applicants wished to contest the orders and did not want the matter to proceed in their absence." 'Whether unexplained delay in bringing the application should prevent the orders being set aside.']

Ratio Decidendi

The orders made on 9 April 2001 were set aside because the applicants were not heard due to human error by which their solicitor did not become aware of the hearing in time, and because the Commission had material information about the solicitor's request that the matter not proceed which was not conveyed to the Court. Simpson J would not have made, or would have vacated, the forfeiture orders had that conversation been disclosed. Despite substantial unexplained delay, common justice required the orders to be set aside, particularly because the Crown had suffered no irremediable prejudice while the property remained subject to a restraining order.

Court Disposition

Notice of motion granted; orders made on 9 April 2001 set aside.

Orders

  • ['Orders made on 9 April 2001 set aside.' "The respondent Commission to pay the applicants' costs of the motion." "Liberty granted to the respondent Commission to apply on two days' notice for reconsideration of the order for costs, such liberty to apply not to be exercised later than four weeks from today."]