DIRECTOR OF PUBLIC PROSECUTIONS v SAFFRON (NO 2) [1989] NSWCA 60

DIRECTOR OF PUBLIC PROSECUTIONS v SAFFRON (NO 2)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MATHEWS J 30 May 1989, 30 May 1989

[1989] NSWCA 60

PRACTICE — stay — application for interlocutory relief orders made under Proceeds of Crimes Act 1987 (Cth) discharged by Court of Appeal — urgent motion for stay pending decision on whether to seek special leave to appeal to High Court of Australia — held: (1) A stay order is inappropriate as there is no order the execution of which the Court must stay; (2) The appropriate relief, if any, is injunction upon appropriate undertakings as to damages which were proffered; (3) The grant of such relief should not be made in the circumstances against corporations not party to the motion without affording them an opportunity to be heard; (4) As no prejudice was claimed by the opponent relief by injunction should be given for 4 days to permit the DPP to secure advice and make a decision on whether or not to seek special leave to appeal; (5) But (semble) the grant of further relief by the Court of Appeal might not be appropriate in order to avoid frustrating the utility of the fruits of the judgment won by the opponent and having regard to the approach taken by the High Court itself to the provision of relief pending an application for special leave to appeal. Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681, 685; John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510; Halabi v Westpac Banking Corporation (No 2), Court of Appeal, unreported, 8 February 1989; (1989) NSWJB 48; Edelsten vy Ward (No 2) (1988) 63 ALJR 346; Grassby v The Queen (1989) 63 ALJR 348 referred to. Proceeds of Crimes Act 1987 (Cth).

Mathews J This morning the Court delivered its reasons in an appeal concerningthe present parties. It made orders granting leave to the opponent to appeal out of time, granting leave to appeal, ordering that the appeal be allowed and setting aside orders made by Mathews J on 16 February 1989. Her Honour's orders, made pursuant to the Proceeds of Crime Act 1987 (Commonwealth) (the Act), were directed to the opponent and several companies with which it was suggested he, or property under his control, had association. The Court unanimously held that, by reason of the provisions of the Act her Honour's orders were misconceived and had to be set aside. That is what the Court ordered.