Australian Crime Commission v Gray & Anor [2003] NSWCA 318

New South Wales Court of Appeal

CITATION : Australian Crime Commission v Gray & Anor [2003] NSWCA 318 HEARING DATE(S) : 24/10/03 JUDGMENT DATE : 22 December 2003

JUDGMENT OF : Mason P at 1; Ipp JA at 67; Tobias JA at 313 DECISION : By majority: (1) Appeal upheld in part. (2) Cross-appeal dismissed. (3) Direct parties to bring in agreed short minutes withn 14 days, but, if agreement cannot be reached, each party is to file the proposed form of orders with accompanying written submssions on or before 6 February 2004. (4) No order as to costs in regard to the appeal and cross-appeal is made. (5) As regards the costs of the trial, the order made by Austin J stands unless there turns out to have been some relevant Calderbank-type settlement offer.

CATCHWORDS : EQUITABLE ESTOPPEL - Representation made by appellant to protected witnesses - Whether representation was ambiguous - The effect of an ambiguous representation on promissory estoppel - Whether a memorandum of understanding (MOU) signed by the protected witnesses superseded any representation made to them by the appellant - Whether protected witnesses were estopped from denying that they were bound by MOU - Whether appellant was required to pay protected witnesses' income tax in respect of benefits afforded to witness under witness protection scheme - Whether protected witnesses relied on appellant's representations - Whether protected witnesses suffered detriment by going into the witness protection program - Whether failure of the appellant to keep its promise caused protected witnesses to suffer loss - Whether appellant's departure from representation was unconscionable - Whether protected witnesses' criminal conduct affected his and his estate's entitlement to equitable compensation - Whether compensation for the tax liability incurred by protected witness should be paid to administator of estate or to the Australlian Taxation Office. D Director of Public Prosecutions Act 1983 (Cth) Income Tax Assessment Act LEGISLATION CITED : National Crime Authority Act 1984 (Cth), s 4 National Crime Authority (State Provisions) Act 1984 (NSW) Proceeds of Crime Act 1987 (Cth), s 82(1) Witness Protection Act 1995 (NSW) ss 3, 8, 9, 10, 11, 12, 46 Akerhielm v De Mare [1959] AC 789 China-Pacific SA v Food Corporation of India [1981] QB 403 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Crabb v Arun District Council [1976] Ch 179 Flinn v Flinn (199) 3 VR 712 Fox v Percy (2003) 197 ALR 201 Holiday Inns Inc v Broadhead (1974) 232 EG 951 Jones v Watkins [1987] CATranscript 1200, EWCACiv CASES CITED : Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563 Legione v Hateley (1983) 152 CLR 406 Low v Bouverie [1891] 3 Ch 82 Orgee v Orgee (UKCA, unreported, 5 November 1997) The Commonealth v Verwayen (1990) 170 CLR 394 Upper Hunter County District Council v Australian Chilling and Freezing Company Limited (1968) 118 CLR 429 Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Western Australian Insurance Company Limited v Dayton (1924) 35 CLR 355 Woodhouse AC Israel Cocoa Limited SA v Nigerian Produce Marketing Company Limited [1972] AC 741 Wright v Hamilton Island Enterprises Limited [2003] QCA 36 Australian Crime Commission (successor to the National Crime Authority) (Appellant) PARTIES : Margaret Gray (As administrator of the Estate of John Gray) (First Respondent) Margaret Gray (Second Respondent) FILE NUMBER(S) : CA 40334/03 COUNSEL : H K Insall SC/M Dicker (Appellant) M Aldridge QC/P Livingstone (First & Second Respondents) SOLICITORS : Andrew Adams (Appellant) Horowitz & Bilinsky (First & Second Respondents)