NSW CRIME COMMISSION v. MAMMONE [2003] NSWSC 950

Reported Decision : 59 NSWLR 166

New South Wales Supreme Court

CITATION : NSW CRIME COMMISSION v. MAMMONE [2003] NSWSC 950 revised - 25/03/2004 HEARING DATE(S) : 21/7/03; 23/7/03 JUDGMENT DATE : 28 October 2003 JURISDICTION: Civil JUDGMENT OF : Greg James J at 1 DECISION : I decline the respondent's claim for relief.

CATCHWORDS : Proceeds of crime - restraining order made ex parte - part of the evidence inaccurate - whether order should be dissolved - effect of s.10 - relationship to common law or equity practice - whether order should be dissolved where part only of the material put before the judge is accurate where that part is sufficient. Criminal Assets Recovery Act 1990 LEGISLATION CITED : Supreme Court Rules 1970 Supreme Court Act 1970 NSWCC v. Ibrahim & Anor [2002] NSWSC 791 CASES CITED : NSWCC v. Macris [2002] NSWSC 3 NSWCC v. Chik Chen & Ors [2001] NSWSC 331 TQM Cargo Logistic Pty. Limited v. Drake (Santow, J., 2 September 1998) PARTIES : NEW SOUTH WALES CRIME COMMISSION v. MAMMONE, Giuseppe FILE NUMBER(S) : SC No. 10733 of 2003 COUNSEL : Plaintiff: I. Temby, QC. Defendant: I. Lloyd, QC. SOLICITORS : Plaintiff: NSW Crime Commissoin Defendant: Randle Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GREG JAMES, J.

TUESDAY 28 OCTOBER 2003

No. 10733 of 2003

NEW SOUTH WALES CRIME COMMISSION v. GIUSEPPE MAMMONE

JUDGMENT

1 HIS HONOUR: By summons filed on 24 March 2003, the plaintiff, the New South Wales Crime Commission, sought various orders pursuant to provisions of the Criminal Assets Recovery Act 1990 (the Act) against the defendant, Giuseppe Mammone. 2 In support of the summons, was sworn the affidavit of Jonathan Lee Spark dated 24 March 2003 (the first affidavit). 3 In chambers, ex parte, on that day, Justice Adams, after reading the first affidavit, made orders in accordance with the orders sought in paragraphs one, two, three, five, six, seven and eight of the summons. The first order granted was for a restraining order pursuant to s.10 of the Act. The summons also sought an order pursuant to s.27 of the Act that the defendant pay to the Treasurer of New South Wales an amount assessed by the court as the value of the proceeds derived from his illegal activities ("a proceeds assessment order"). 4 The restraining order was made under s.10(2)(a) of the Act. Section 10(1), (2), (3) and (9) relevantly provide as follows:- "(1) A restraining order is an order that no person is to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property to which the order applies except in such manner or in such circumstances (if any) as are specified in the order. (2) The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of:- (a) specified interests, a specified class of interests or all the interests, in property of a person suspected of having engaged in a serious crime related activity or serious crime related activities, including interests acquired after the making of the order and before the making of an assets forfeiture order affecting the interests that are subject to the restraining order; or … (3) The Supreme Court must make the order applied for if the application is supported by an affidavit of an authorised officer stating that:- (a) in the case of an application in respect of an interest referred to in subsection (2)(a) – the authorised officer suspects that the person has engaged in a serious crime related activity or serious crime related activities and stating the grounds on which that suspicion is based; and … and the court considers that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion. … (9) After the first 48 hours of its operation, a restraining order remains in force in respect of an interest in property only while:- (a) there is an application for an assets forfeiture order pending before the Supreme Court in respect of the interest; or (b) there is an unsatisfied proceeds assessment order in force against the person whose suspected serious crime related activities formed the basis of the restraining order; or (c) there is an application for such a proceeds assessment order pending before the Supreme Court; or (d) it is the subject of an order of the Supreme Court under s.20 (effect on restraining order of refusal to make confiscation order)." 5 The making of a restraining order has a number of statutory consequences. Section 20 provides:- "1. If, while a restraining order is in force, the Supreme Court does not make an assets forfeiture order in respect of interests in property to which the restraining order relates or a proceeds assessment order in respect of any person whose interests in property are affected by the restraining order, the Court may:- (a) if it considers it appropriate, make an order in relation to the period for which the restraining order is to remain in force, and (b) make such other order or orders as it considers appropriate in relation to the operation of the restraining order. 2. An order under subsection (1) may be made to take effect:- (a) forthwith, or (b) at a specified time, or (c) on the happening of a specified event." 6 If a restraining order is in force, under s.22 the Supreme Court may make an assets forfeiture order affecting all or any of the interest in property that are the subject of the restraining order when the assets forfeiture takes effect. 7 Section 22(2) requires that the court must make the assets forfeiture order if the court finds it to be more probable than not that the person whose suspected serious crime related activity or activities formed the basis of the restraining order was at any time not more than six years before the making of the application for the order engaged in activity involving an indictable quantity of drugs or an offence punishable by imprisonment for five years or more. 8 The effect thus is that the court determines whether it is more probable than not that the person concerned was, during the previous six years involved, in the extended sense referred to in the definition of serious crime related activity, in a crime of the nature specified by s.22(2). The crime related activity need not be nor have any relationship to, the activity, the suspicion of which gave rise to the restraining order. The facts are to be established on the balance of probabilities. No conviction for any offence is necessary. 9 Similar provisions require that after application for a proceeds assessment order, the court must make a proceeds assessment order if findings to similar effect are made. The proceeds are then to be assessed having regard to the matters prescribed by s.28. A number of other provisions in the Act provide for investigation mechanisms in particular for the obtaining of information about the estate or property of persons whose property is subject to the restraining order. 10 Section 25 provides for that an application might be made to the court to exclude the interest of a person, whose interest in property might be subject to an assets forfeiture order if made or whose interest in property was forfeited by an assets forfeiture order, from the operation of that order or any relevant restraining order. 11 Section 25(2) provides:- "The Supreme Court must not make the exclusion order applied for unless it is proved that it is more probable than not that the interest in property to which the application relates is not illegally acquired property." 12 It is not open to an applicant to have property excluded unless it is not illegally acquired. It does not matter that it may have been illegally acquired not in or through the serious crime related activity, the suspicion of which founded the restraining order, nor that it was not acquired through serious crime related activity at all. 13 No provision is made expressly by the Act other than by s.20, s.25 and s.10(2) which would enable a restraining order to be revoked, rescinded, dissolved or somehow avoided or deprived of effect, although there is provision for ancillary orders under s.12 and certain other ancillary orders are otherwise provided for in the Act. 14 Order seven made in response to the claim numbered eight in the summons provided for the orders to take effect as of the date of their making pursuant to Part 40 Rule 3(5) of the Supreme Court Rules 1970. There is on file, the formal sealed orders of the court to which I have referred which confirms they were entered on 26 March 2003. The orders were made upon the plaintiff giving the usual undertaking as to damages. 15 Part 40 Rule 3(5) provides that, notwithstanding sub-rules (1), (3) and (4), the court may order that a judgment or order takes effect as at a date earlier or later than the date fixed by those sub-rules. Sub-rule (3) provides that the orders shall take effect subject to sub-rule (1) as of the date of entry. Thus, the orders were entered and in effect on 26 March 2003. 16 On 28 March 2003, Mr. Spark swore a further affidavit in the circumstances set out in the affidavit of Anna Louise Turnbull of 2 July 2003. In that latter affidavit, the reason given for the swearing of the further affidavit is:- "4. Later that same week I was informed by Mr. Spark that the first affidavit contained inaccurate information in respect to the suspicion of the defendant's involvement in the offence described in paragraph 2(b) of the first affidavit." 17 Paragraphs four to six of the second affidavit of Jonathan Lee Spark sworn 28 March 2003 are as follows:- "4. In paragraph 3(c) of the first affidavit, I deposed to matters of which I had been informed by John Ralston, Manager, Investigations ('Ralston') of the Commission. 5. Having reviewed the contents of paragraph 3(c) of my first affidavit and had discussions with Ralston and two other staff members of the Commission, I realise I misunderstood the information given to me by Ralston and that paragraphs 3(c)(ii), 3(c)(iii) and 3(iv) contain some inaccuracies. 6. I have been further informed by Ralston that the information contained in paragraphs 3(c)(ii), 3(c)(iii) and 3(iv) is correct subject to the following amendments:- (a) Paragraph 3(c)(ii) The search warrants referred to in paragraph 3(c)(ii) were executed on 15 and 16 March 2003 on adjoining properties at Fifield, New South Wales. One of the properties was the property described in Item 4 of Part One of the Schedule to the first affidavit ('the Mammone Fifield property') and the other property was a property currently owned by Luca Badalamenti but which, until 17 January 2003, was owned by Skorin Holdings Pty. Limited ('the Badalamenti property'); (b) Paragraph 3(c)(iii) The 8,500 cannabis plants were located on the Badalamenti property; (c) Paragraph 3(c)(iv) The four areas apparently previously used for the cultivation of cannabis were located on a third property (being the property described in Item 3 of Part One of the Schedule to the first affidavit) pursuant to a search warrant executed on that property on 16 March 2003." 18 The first affidavit, in paragraph two, referred to the suspicion held by the deponent, of the respondent having engaged in the serious crime related activities of shooting with intent to cause grievous bodily harm and cultivating a greater than commercial quantity of a prohibited plant. In paragraph three, the defendant refers to his grounds for holding that suspicion. It reads as follows:- "The suspicion referred to in paragraph two above is held by me having had regard to:- (a) a search of the records of the New South Wales Police Service COPS system which revealed that:- (i) that on 22 April 1999, Mammone was charged with the offence described in paragraph 2 above ('the shooting charge'); (ii) the event which gave rise to the shooting charge occurred on 22 April 1999; and (iii) Mammone was convicted of the shooting charge and on 10 August 2001 in the Sydney District Court he was sentenced to three years periodic detention commencing on 24 August 2001. (c) I have been informed by John Ralston, Manager, Investigations of the Commission of the following:- (i) The Commission and New South Wales Police have been conducting an investigation which has revealed evidence that Mammone is involved in the large scale cultivation of cannabis; (ii) on 15 March 2003, police executed search warrants on two adjoining properties near Coonabarabran (being the properties described in Items 3 and 4 of Part One of the Schedule hereto). (iii) on one of the properties (being the property described in Item 3 of Part One of the Schedule hereto) police located 8,500 cannabis plants; and (iv) on the other property (being the property described in Item 4 of Part One of the Schedule hereto) police located four areas apparently previously used for the cultivation of cannabis and an irrigation pipe running from a dam on the property to the crop described in paragraph 3(c)(iii) above." 19 The second affidavit was apparently read by Justice Adams sitting in chambers on 28 March 2003 in the circumstances referred to by Anna Louise Turnbull in her affidavit of 2 July 2003 in which she says:- "5. At approximately 3.00 pm on 28 March 2003, I made a number of applications in other matters before The Honourable Justice Adams. At that time, I showed the second affidavit setting out the inaccuracies in the first affidavit to his Honour. His Honour indicated that he remained satisfied as to the grounds for granting the restraining order." 20 The effect of the inaccurate information was to put the matter before the judge on a basis suggesting that the respondent had committed the shooting offence and was, by reason of his connection with the properties, involved in cannabis cultivation. On the accurate information that latter basis was either not open or at the least the suspicion of it was considerably weakened. 21 The specific concern is that Mr. Spark had mis-stated the effect of what it was he had been told, albeit honestly, so that the basis on which he told the judge he had formed his suspicion reflected an inaccurate appreciation of what he had been told. The effect of his so providing the basis of his suspicion to the judge was to provide an incorrect basis on which to assess, so far as the suspicion related to the serious crime related activity of cultivation of a prohibited plant whether the suspicion was reasonable. On the correct information, so far as it set out the basis for the suspicion as relating to the cultivation of prohibited plants, it was at least likely the judge would not have concluded there were, in that respect, reasonable grounds for the suspicion. 22 The importance of the provision of accurate information to the authorised officer who seeks a restraining order and to the judge lies in the duty cast on the court by s.10(3) of the Act. The order must be made by the court if it, having regard to the information forming the basis for that suspicion as set out in the affidavit, considers there are reasonable grounds for that suspicion. To deprive it of the proper opportunity to assess the basis of the suspicion could result in an order being made otherwise than is authorised by the Act. The court's supervisory role under the Act would be negated. 23 Plainly the provision of inaccurate information as to those grounds and their basis might tend to prevent the court's proper performance of its functions and to subvert the court's reliance on the material placed before it on the accuracy of which it must depend to make orders of a "draconic" kind preventing persons from having any control over the whole of their own property. 24 It is in this context that the motions before me were brought. The respondent, by motion sought that the orders made on 24 March 2003 be set aside; that the proceedings be dismissed and the plaintiff be restrained from seeking any further orders in the matter. In response, the Crime Commission put on a motion that the court separately determine the question of whether a single judge of the court had power to set aside a restraining order once entered even though made ex parte and that I determine as a separate question whether there was power for a single judge to set aside such an order prior to hearing of the respondent's motion. 25 While emphasising the importance of the provision of accurate information to the court, neither in evidence nor in the argument did senior counsel for the respondent challenge the correctness of the factual material in the second affidavit. 26 Senior counsel for the plaintiff described the significance of the different pieces of information in the two affidavits thus:- "TEMBY: The short history: restraining order made in relation to all interest in property of Mr. Mammone on 24 March, it is made and based on an affidavit of Mr. J.L. Spark of that same date. That affidavit accorded with the statutory requirements in that he stated his suspicion that Mr. Mammone had engaged in serious crime related activities and he defined them as being two in number, namely shooting with intent to cause grievous bodily harm contrary to s.33 of the Crimes Act, which was in the affidavit established in terms of charge, conviction and sentence; and, secondly, on the basis that Mr. Mammone had cultivated more than a commercial quantity of a prohibited plant and that suspicion was justified in Mr. Spark's affidavit on the basis of information he had been given, firstly that the Commission and New South Wales Police had been conducting an investigation which had revealed evidence that he was involved with a large scale cultivation of cannabis and then, secondly, by providing some information concerning a search warrant or search warrants executed on 15 March 2003 and relative to certain properties on which cannabis plants were found. Unhappily, the information concerning the land was incorrect. HIS HONOUR: Mr. Temby, without reading Mr. Jonathan Spark's first affidavit he swore that he was given certain information. TEMBY: Yes. HIS HONOUR: He is not said to have himself misled anybody. TEMBY: No. HIS HONOUR: He was given that information. TEMBY: that is entirely right. HIS HONOUR: But that information it turned out later was not itself accurate. TEMBY: that is right. Had the former been the case, that would be a case of fraud. HIS HONOUR: It might be. TEMBY: It would or might be a case of fraud. Your Honour is entirely right that the point I was going to make, he truthfully said that he had received the information. HIS HONOUR: The second material showed what was the nature of the mistaken information. TEMBY: Yes, but it is important for the court to understand firstly that the second affidavit brought forward a fresh understanding he had on the basis of information which had been subsequently given to him, the correctness of which is not in dispute. HIS HONOUR: that information when you say 'been subsequently given to him', after the order was made? TEMBY: after the order was made and it did not affect either the shooting charge of which Mr. Mammone had been convicted and for which he had served time and it did not affect the statement made by Mr. Spark that he held a suspicion concerning the cultivation of cannabis and that the Commission and New South Wales Police had been conducting investigations which had revealed evidence that Mammone had been involved in a large scale cultivation of cannabis. HIS HONOUR: tell me what was the mistake. TEMBY: The mistake was as to the ownership and situation of certain lots of land upon one of which cannabis plants were found to be growing. The true facts were that the lots in question were materially distant from each other and the understanding Mr. Spark had as to the ownership of the land had not been correctly stated and we concede that that weakened the particulars so far as the suspicion is concerned; but it did not deprive of content, either the shooting charge which remains in effect entirely or the proposition that the Commission and New South Wales Police were conducting an investigation which revealed evidence that Mammone was involved with a large scale cultivation of cannabis. HIS HONOUR: The first proposition was a cultivation on a block of land at Broken Hill and the second version was? TEMBY: The first version heard the execution of search warrants on adjoining properties at Coonabarabran. The true fact is that the properties were not adjoining but were a long way apart. HIS HONOUR: The differences in the owners were? LLOYD: Our client did not own them. HIS HONOUR: Either of them? LLOYD: No. HIS HONOUR: Was your client said to own the first block? LLOYD: We were said to own all blocks. We did not own any. HIS HONOUR: The second blocks were said to be owned by people who had nothing to do with your client. LLOYD: they state the correct ownership of a different person, not us. HIS HONOUR: But was the different person said to be involved with your client in the cultivation? LLOYD: No. HIS HONOUR: that is why you say, Mr. Temby, it weakens your particulars on which the suspicion might be based? TEMBY: That is correct. We concede for the purposes of the argument that there were material mis-statements made to Mr. Spark which he in good faith carried to the court in his first affidavit, he then ascertained the true position and the matter was taken back before the judge who had issued the restraining order on the 28th. We say that that was done as a matter of propriety and courtesy, but it does appear tat any expression Adams, J. made at that time does not go to the exercise of jurisdiction. HIS HONOUR: And those matters to which you referred are such as had they been known at the time at which the order was granted were relevant to whether the court might consider that having regard to the matters contained in any such affidavit there were reasonable grounds for Mr. Jonathan Spark's suspicion. TEMBY: Yes, with respect that is right, they go to that issue." 27 Senior counsel for the respondent referred to the basis upon which he contended the order should be set aside in the following passage in the argument:- "HIS HONOUR: Mr. Lloyd, are you going to assert that the restraining order was obtained in an abuse of process, in the sense of not just a mistake but something beyond that such as to show that the processes of the court for the sake of the courts essential dignity as a court must be invoked to correct what has occurred? LLOYD: I cannot go behind and I have not sought to go behind the affidavit material filed by both parties. The highest I can put it is material non-disclosure, negligent non-disclosure. In no way am I alleging mala fides. HIS HONOUR: We cannot say mala fides, fraud or some such breach of natural justice or so inherently goes to the nature of the proceedings as to require the court in common justice to correct an abuse to act. LLOYD: I think that is fair." 28 Following that, I raised with counsel whether I should consider the merits of setting aside the order assuming I had power to do so turning only to the questions of power if it appeared a case for setting aside might be made out. 29 The parties had filed some written submissions. I invited the filing of further written submissions. Upon considering those submissions and upon hearing the oral argument, I determined that it was appropriate to proceed to ascertain whether there were any such sufficient grounds as might warrant the setting aside of the order, prior to determining whether there was power in a single judge to do so and in particular prior to considering whether or not a separate question arose and whether it was necessary for the matter to go to the Court of Appeal. 30 It was submitted that the order granting the restraining order was interlocutory thus attracting the usual incidents of an order not final that it might for proper cause be dissolved or varied and that the Act plainly contemplated (perhaps in somewhat different circumstances) the setting aside of, at least partially or a variation of restraining orders: see NSW Crime Commission v. Ibrahim & Anor [2002] NSWSC 791; NSW Crime Commission v. Macris [2002] NSWSC 3; NSW Crime Commission v. Chik Chen & Ors [2001] NSWSC 331. It is not necessary here for me to decide whether such an order is final or interlocutory. Where, as here, the order has permanent effects under the statute, affecting property and civil rights, there is much to suggest it is final. But I am concerned with a narrower question, that is, whether, assuming I might have power to set the order aside, there are grounds which would permit taking that course. 31 It was submitted that, assuming a single justice had the power to set aside an order, the practice to be followed was that applicable to orders made ex parte by the court, eg., for interim preservation of rights under Part 28 of the Rules and as had long existed in the equity jurisdiction in consequence of the practice requiring compliance with the high duty of candour and disclosure on an ex parte application for relief. I was referred, in particular, to the decision of Justice Santow in TQM Cargo Logistics Pty. Limited & Ors v. Drake (unreported 2 September 1998) and the decision of Sperling, J. in Ibrahim & Anor (supra). 32 It was not suggested that Mr. Spark had deliberately misled Justice Adams but it was submitted that the material Mr. Spark related in error, could easily have been discovered to be so by proper or further enquiry. So much I accept. It was submitted that it was irrelevant to the issue of whether the order should be set aside that there was plainly, accurately stated, sufficient other material to warrant the making of the order sought. That other material was not challenged nor its effect so far as the suspicion was sufficiently based on it. That material related to the respondent's conviction of the shooting charge. But it was submitted:- "The reality is the applicant chose to rely on such inaccurate information as material facts to be thrown into the mixing pot of matters contained in an affidavit and placed before the court as providing reasonable grounds for the requisite suspicion." 33 It was submitted that it was irrelevant that Adams, J. may have expressed the view, two days after the orders were entered and four days after the orders had been granted, that he still remained satisfied as to the grounds for granting the restraining order. (It seems clear that what then occurred was not a renewal of the former application.) 34 It was submitted that the duty on the applicant moving the court ex parte for restraining orders was so high and the practice so strict that the latter action of the judge would not cure the effect of the provision of the inaccurate information. 35 Although, on the plaintiff's part, reliance was placed on the later view of Adams, J., I am prepared to assume without deciding that it was irrelevant in the circumstances of this case. 36 The plaintiff submitted that no true analogy existed between the granting of ex parte orders under the Act and that of orders of the kind referred to by Santow, J., in particular because s.10(2) provides expressly for the application to be made in the absence of the defendant and s.10(3) provides that the court "must" make the order if the application is supported by an affidavit meeting the statutory criteria and the court considers there are reasonable grounds for the suspicion therein referred to (s.10(3)(a)). Reasonable grounds for the suspicion may remain even if there are also asserted grounds which are not accepted by the court as reasonable. 37 It was pointed out that the grant of a restraining order causes, of itself, certain immediate statutory consequences and that the variation or the setting aside of the restraining order has, by reason of other provisions of the Act, certain statutory consequences. It was submitted that this statutory machinery did not contemplate an application of the kind being made here. 38 It was submitted the Act itself supplies the only machinery (absent a case of fraud or abuse) for the setting aside of a restraining order 39 It was submitted that (at least in the absence of fraud or abuse of process) the Act, insofar as it provided for the grant or the remaining in force of restraining orders was a code or at least made specific provision such that there was no room to imply into the application of the Act in this respect, any common law or equity practice of general application under the Supreme Court Act 1970 and Rules which was not at least impliedly caught up by the Act. 40 It was submitted that, even if it were open to bring such an application as is here brought, the grounds on which the order was made which were not impugned as inaccurate were entirely sufficient in themselves to support the making of the order and that that in itself would mean that the order should not be set aside. 41 Further it was submitted, that the Act contemplated that the very nature of the applications to be made for such orders was such that they would usually need to be made urgently, in the absence of the defendant, in the context of ongoing enquires into possible criminal activity or when seeking to trace the fruits of it, the facts of which might well be expected to be difficult to ascertain fully, with accuracy and precision at the time at which it would be necessary to move the court, to prevent the dissipation of the property. It would be of the very nature of such a process, likely and expected by the legislature that there would be occasional blemishes so that if the information that had been provided was what was then available and the suspicion based on it was reasonable, the statutory criteria would be met and the order should be made, even though the provision of the information might not meet the strict tests developed in equity for full disclosure. Such considerations distinguished this process from that known in equity. 42 In TQM Cargo (supra), Santow, J. (as he then was) set out the :- "… statement of principle taken from Spry Equitable Remedies 5th ed. (LBC, 1997) at 495 as to the duty of candour in disclosure by the ex parte applicant for injunctive relief:- 'Where application is made ex parte, the obligation of the plaintiff is not merely not to mislead the court by expressly or impliedly making representations that are untrue, as is otherwise ordinarily the case in an inter partes proceeding, but in addition he is under the duty of disclosing to the court all matters which are within his knowledge or would have been discovered by proper enquiries, and which are material to the proceedings at hand and tend in favour of an absent party. A matter is regarded as material for these purposes either if it is relevant to the existence of a power to grant an injunction or if it is one of those circumstances that the court takes into account in exercising its discretion.'" 43 Powell, J. referred to the old practice in Trewenack v. Clippers Anchorage Pty. Limited (unreported 8 December 1983):- "The duty of disclosure which the law casts upon a party applying to a court ex parte for the grant of an injunction in his favour is well established, and its extent is, or ought to be, well known. Such a party is bound to bring to the notice of the court to which he applies, all facts material to the determination of his right to that injunction, and a party fails in that duty unless he brings to the notice of the court all material facts known to him which might afford to the intended defendant, if he were aware of it, a defence to the application. Since this is, in effect, the condition upon which such applications are entertained, and such injunctions are granted, prima facie, in a case in which the duty has not been fulfilled, the defendant against whom such an injunction has been granted, is ex debito justitiae, entitled to have it discharged: see Thomas A. Edison Limited v. Bullock (1912) 15 CLR 679 at 681 per Isaacs, J. (as he then was); Grant Matich & Co. Pty. Limited v. Toyo Menka Kaisha Limited (1978) 3 ACLR 375 at 376; Kerr on Inunctions, 5th ed. at 675 et seq., 6th ed. at 660 et seq; Parker's Practice in Equity, 2nd ed. at 28; Spry on Equitable Remedies, 1st ed at 448 et seq; 2nd ed. at 461 et seq. The old practice seems to have been that, if, for any reason, the proceedings were before the court, it was open to the court to dissolve an injunction granted ex parte upon an insufficient disclosure without requiring the filing of a notice of motion to that effect: Bolton v. London School Board (1878) LR 7 Ch D 766 at 771; 38 LT (NS) 277; Wimbledon Local Board v. Croydon Rural Sanitary Authority (1886) LR 32 CH D 421; 55 LT (NS) 106; Boyce v. Gill (1891) 64 LT (NS) 824. The old practice also was that upon an application to dissolve an injunction granted ex parte upon an insufficient disclosure the plaintiff must stand on the affidavits upon which he relied to obtain the grant of the injunction and was not entitled to an adjournment to meet the case put against him and might not seek to support the injunction upon a ground other than that upon which it was granted: Harbottle v. Pooley (1869) 20 LT (NS) 347; Boyce v. Gill (supra); Kerr (op. cit, 5th ed. at 676, 6th ed. at 661); indeed, the old practice was that, upon such an application, the plaintiff had no right to insist that the motion stand over in order to give him time to cross-examine the witness who had sworn affidavits for the defendant: Normanville v. Stanning (1853) 10 Hare Apx I xx; Kerr (ibid)." 44 It is plain that in the general jurisdiction at law or in equity in the event of non-disclosure, it is open to the court to dissolve an injunction granted ex parte and that, as the Supreme Court Practice in the notes to Part 28 Rule 1 expresses it:- "Any breach of that obligation of candour will generally lead to dissolution of any ex parte orders that may have been obtained." 45 But this order was not made in the exercise of that general jurisdiction but in the exercise of a specific statutory duty as a consequence of the court concluding that the statutory requirement for the duty arising had been met. It was an order which the court in that event was required by the statute to make. 46 I do not see that the Act's conferral on the applicant of a right to have the order made in the absence of the defendant impliedly incorporated the general law into the proceedings where, on the face of the statute, the court "must" make the order whether full disclosure had occurred or not. I accept that different considerations might apply in the case of fraud or abuse but, in my view, absent those considerations, the court must make the order and if, in the relevant circumstances the court must make the order, I do not see why the order should be revoked should those circumstances later come to light. 47 I do not se that there is anything in the case law considering the provisions of the Act to which I was referred which speaks to the contrary. I note that the conclusions of Adams, J. in NSW Crime Commission v. Gardner [1999] NSWSC 1210, particularly at paragraph 16, were directly against the respondent's submissions. 48 The orders set aside by Hulme, J. in NSW Crime Commission v. Macris [2002] NSWSC 3 were held by him to be conditional. The orders were set aside because the condition qualifying the making of the order had not been complied with. The case did not concern the setting aside of a restraining order. It does not assist the respondent. 49 In NSW Crime Commission v. Chik Chen [2001] NSWSC 331, it was not disputed that there was a discretion to set aside consent forfeiture orders. The orders had been made in consequence of a solicitor purporting to appear and consent to them on behalf of persons who had not instructed him. It was contended that the effect of the solicitor's lack of instructions was that the orders were made ex parte. That was not, however, the reasoning on which the decision was based. Howie, J., in accepting the undisputed fact that the solicitor who gave the relevant consent had no authority to do so concluded that there was a discretionary power to set aside the orders and that since the court had been misled as to a relevant matter, that is, whether there was an agreement that the orders should be made and since there were arguable grounds on which they should not have been made, of which argument the court had been deprived, set them aside. Under the Act, the parties were entitled to be heard before such orders were made. Without their fault, they were deprived of that right. There is no analogy here to be found applicable to the situation before me. 50 In NSWCC v. Ibrahim & Anor [2002] NSWSC 791, Sperling, J. determined applications to set aside assets forfeiture orders made in court in the absence of the defendants, but made conditionally upon the confirmation of proof of notification of the hearing. His Honour referred to Part 40 Rule 9(3)(a) of the Rules which gives power to set aside orders:- "where the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of motion for the order …" 51 His Honour concluded that in respect of the making of the orders he was considering the defendants had an entitlement to be, themselves or by their representative, present, they were not present without any fault on their part, the orders were made without the court being informed of a conversation between the solicitors explaining why their representative could not be present and that had the defendants or their representative been present, the orders would not have been made or would have been vacated when the reason for the absence of their representative were known to the court. The effect of the defendant's absence was that they were denied their opportunity to be heard, to agree to or to oppose the orders. It is in that context that what his Honour said concerning the duty on the applicant must be considered. 52 His Honour said:- "There is then a further dimension to what occurred. This was an ex parte application. There was an obligation to inform the court of any material consideration not otherwise apparent. A party who applies ex parte for an order in the exercise of a judicial power is required to meet a high standard of candour and responsibility, in bringing all material matters to the notice of the tribunal including matters which the absent party would rely upon if present: Garrard v. Email Furniture Pty. Limited (1993) 32 NSWLR 662 (per Mahoney, AP. At 676-7, with whom Clarke, JA. agreed). An order obtained in breach of that duty will almost invariably be set aside even if, on a fresh application following full disclosure, the applicant would be entitled to an order in similar terms: ibid (at 678). It has been said that an order obtained in breach of good faith is to be set aside ex debito justitiae, and that there is no discretion to refuse to set aside such on order: Analby v. Praetorius (1888) 20 QBD 764. These are strong words for a strong concept." 53 Even putting aside the argument based on the immediate statutory effect of the restraining order and the lack of legislative machinery to permit it to be revoked, dissolved or otherwise set aside, and noting that restraining orders raise different considerations to those raised when considering assets forfeiture orders, it is apparent that his Honour's remarks concerned orders in respect of the making of which the defendants were entitled under the Act to be heard. It was only in that context that Part 40 Rule 9(3) might apply. I do not consider that in the absence of, at least, a breach of good faith, the provisions of the Rules nor his Honour's observations should be taken to apply here where the Act expressly provides that the defendants need not be heard. 54 In the upshot, then I am of the view the Act required the order to be made if the court were of the view that reasonable grounds existed for the suspicion. Even though some grounds asserted might not have been reasonable, nonetheless reasonable grounds remained. That certain of the grounds should not have been accepted as reasonable is not the point since I do not accept the process or the remaining grounds were tainted. It follows that for the reasons I have given I have concluded it is not open to set aside the order under the machinery of the Act and there is no sufficient ground on any other basis as might warrant taking that course. 55 It should be clear that nothing in this judgment should be taken as affording any comfort for slipshod practices or mistaken statements which mislead the court. This judgment is confined to the legal effect of what occurred in this case, in particular in the circumstance that the alternative ground for the suspicion as founding the order was sufficient to support it. It is not necessary for me to express any wider view than I have and I therefore do not. 56 I conclude that I decline the respondent's claim for relief and therefore see no necessity to determine further whether there should be a separate determination of a question as raised by the plaintiff. 57 I direct the parties to bring in short minutes within seven days setting out the appropriate orders to be made in consequence of this judgment. **********