Ollis v New South Wales Crime Commission [2007] NSWCA 311

Reported Decision: 177 A Crin R 306

New South Wales Court of Appeal

CITATION: Ollis v New South Wales Crime Commission [2007] NSWCA 311 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 2 April 2007

JUDGMENT DATE: 2 November 2007

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 88; Tobias JA at 104

DECISION: 1. Extend the time in which to file the Summons for Leave to Appeal to 4 October 2006; 2. Grant leave to appeal; 3. Appeal allowed; 4. Set aside orders made by Rothman J on 7 June 2006; 5. Dismiss the Notice of Motion for summary judgment; 6. The respondent is to pay the appellant's costs of the Summons for Leave to Appeal, the appeal and the costs at first instance.

CATCHWORDS: CRIMINAL LAW – statutory construction – criminal conduct may constitute more than one offence – s 6(2)(d) of the Criminal Assets Recovery Act 1990 (NSW) does not refer to specific offences but categories of offences – perjury may satisfy the concept of perverting the course of justice – failure to establish defendant made false statement with intent to pervert course of justice – real question to be tried – error in ordering summary judgment - EVIDENCE – witness immunity – exceptions – statements made in the course of judicial proceedings – immunity otherwise applicable – whether Criminal Assets Recovery Act 1990 (NSW) provided an exception to the immunity – application under the Act not typical civil suit or criminal prosecution – intention of legislature – Act concerned with conduct not liability or potential liability to punishment - PROCEDURE – summary judgment – r 13.1 Uniform Civil Procedure Rules 2005 (NSW) – inappropriate where real question to be tried - PROCEDURE – application for summary judgment – defendant did not adduce evidence on application – trial judge made adverse credit finding and drew Jones v Dunkel inference from failure to call witness – whether trial judge's reasoning was consistent with principles governing summary judgment