New South Wales Crime Commission v Bonaccorso [2010] NSWSC 876

New South Wales Crime Commission v Bonaccorso [2010] NSWSC 876

There was no obligation to serve the Notice of Motion for examination on Robert Francis Agius prior to the making of the examination order as he was not an 'affected person' within the meaning of the Act or Rules, and the absence of such notice is not a ground to set aside the order. Nonetheless, as a person affected by the ex parte order, he has standing to seek discharge or variation. However, the risk of self-incrimination and the related pending criminal charges did not provide a basis to set aside or further stay the examination absent clear evidence of connection or risk. On balance, however, due to the pending appeal by the Defendant and the stay granted in relation to the...

Jurisdiction
Australia
Judgment Date
12 August 2010
Procedural Posture
Notice of Motion / Interlocutory Application to Set Aside/stay Order for Examination
Outcome
Application for stay granted in part; order for examination stayed pending appeal; costs ordered against applicant
Legal Topics
['confiscation of Proceeds of Crime' 'restraining or Freezing Orders' 'ancillary Orders for Examination' 'procedural Fairness' 'standing to Apply for Discharge of Examination Order' 'self Incrimination' 'notice Requirements']
['criminal Law' 'civil Procedure'] ['confiscation of Proceeds of Crime' 'restraining or Freezing Orders' 'ancillary Orders for Examination' 'procedural Fairness' 'standing to Apply for Discharge of Examination Order' 'self Incrimination' 'notice Requirements']

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Procedural Posture

Notice of Motion / Interlocutory Application to Set Aside/stay Order for Examination

Legal Issues

  1. 1 ['Whether there was an obligation to serve the Notice of Motion for examination on the third party applicant' 'Whether the examination order should be set aside for lack of service/notice' 'Whether the applicant has standing to apply to discharge or vary the examination order' 'Whether the risk of self-incrimination justifies setting aside or staying the examination' "Whether the pending appeal and stay of the defendant's examination warrant staying the applicant's examination"]

Ratio Decidendi

There was no obligation to serve the Notice of Motion for examination on Robert Francis Agius prior to the making of the examination order as he was not an 'affected person' within the meaning of the Act or Rules, and the absence of such notice is not a ground to set aside the order. Nonetheless, as a person affected by the ex parte order, he has standing to seek discharge or variation. However, the risk of self-incrimination and the related pending criminal charges did not provide a basis to set aside or further stay the examination absent clear evidence of connection or risk. On balance, however, due to the pending appeal by the Defendant and the stay granted in relation to the...

Court Disposition

Application for stay granted in part; order for examination stayed pending appeal; costs ordered against applicant

Orders

  • ['The examination of the Applicant is stayed until the determination of the Court of Appeal in the appeal brought by the Defendant.' 'The Applicant is to pay the costs of the Motion.' 'The Applicant is to pay the costs of the Plaintiff thrown away by reason of the examination of the Applicant not proceeding on 29...