Cullen v State of New South Wales [2006] NSWSC 685

Cullen v State of New South Wales [2006] NSWSC 685

The declaration sought by the defendants was refused because the court was not persuaded that the 19 June 2006 order had the construction contended for. However, the further download was permitted because the inevitable risk involved in examining the ECU data was not sufficient to prevent the process altogether, while the purpose of the inherent jurisdiction was to make evidence ultimately available; the risk required a more closely defined regime and protective conditions.

Jurisdiction
Australia
Judgment Date
23 June 2006
Procedural Posture
Procedure / Duty Judge Ex Tempore Judgment on Defendants' Application Concerning Downloading and Copying Information Stored in Electronic Control Units of a Motor Vehicle
Outcome
Downloading permitted on conditions; declaration declined; liberty to apply granted.
Legal Topics
['supreme Court Inherent Jurisdiction' 'administration of Justice' 'consent Orders' 'downloading and Copying Electronic Control Unit Data' 'conditions for Inspection of Evidence']
['civil Procedure' 'evidence'] ['supreme Court Inherent Jurisdiction' 'administration of Justice' 'consent Orders' 'downloading and Copying Electronic Control Unit Data' 'conditions for Inspection of Evidence']

Case Brief

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Procedural Posture

Procedure / Duty Judge Ex Tempore Judgment on Defendants' Application Concerning Downloading and Copying Information Stored in Electronic Control Units of a Motor Vehicle

Legal Issues

  1. 1 ['Whether the variation made to the order on 19 June 2006 was not qualified by a requirement that the plaintiffs and defendants first mutually agree a time, place and methodology.' 'Whether a further download by Mr Nicholas Allan of software, data or other information contained in the vehicle should be permitted.' "What conditions should govern any further downloading and copying of information from the vehicle's electronic control units."]

Ratio Decidendi

The declaration sought by the defendants was refused because the court was not persuaded that the 19 June 2006 order had the construction contended for. However, the further download was permitted because the inevitable risk involved in examining the ECU data was not sufficient to prevent the process altogether, while the purpose of the inherent jurisdiction was to make evidence ultimately available; the risk required a more closely defined regime and protective conditions.

Court Disposition

Downloading permitted on conditions; declaration declined; liberty to apply granted.

Orders

  • ["Further download may be made by Mr Nicholas Allan of software, data or other information contained in the vehicle at Mona Vale police station at 9.30am Monday 26 June 2006, in accordance with the methodology described in Mr Allan's affidavit sworn 9 July 2005 and the process described in the affidavit of Christa...