DOWE v. COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION & ANOR; PAVAN v. COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION & ANOR; GEDEON v. COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION & ANOR; ZAITER & ANOR v. COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION & ANOR [2006] NSWSC 1312

New South Wales Supreme Court

CITATION : DOWE v. COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION & ANOR; PAVAN v. COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION & ANOR; GEDEON v. COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION & ANOR; ZAITER & ANOR v. COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION & ANOR [2006] NSWSC 1312

HEARING DATE(S) : 2 November 2006; 21 November 2006

JUDGMENT DATE : 12 December 2006

JURISDICTION : Administrative Law

JUDGMENT OF : Hall J at 1

DECISION : The questions posed for separate determination pursuant to the provisions of Part 28 of the Uniform Civil Procedure Rules 2005 are answered as follows:- "Q1. Are ss.5 to 20 of the Law Enforcement (Controlled Operations) Act 1997, or any of those section, alone or in combination, ultra vires or invalid by reason of s.109 of the Commonwealth Constitution? (the "constitutional question"). A. No. Q2. Does the jurisdiction of this Court extend to determining whether or not any conduct proposed to be authorised (or that was authorised) pursuant to s.6(1)(a) of the Law Enforcement (Controlled Operations) Act 1997 is (or was) likely to seriously endanger the health or safety of any participant or any other person, or to result in serious loss or damage to property, within the meaning of s.7(1)(b) of that Act? (the "jurisdictional fact question"). A. No. Q3. Is the report of Louisa Degenhardt (undated), being part of Annexure C to the affidavit of Stephen Dack sworn 18 August 2006, relevant to, and admissible in, the proceedings upon the Summons? A. No. Q.4 Is the report of Louisa Degenhardt (dated 31 July 2006), being part of Annexure AC to the affidavit of Stephen Dack sworn 18 August 2006, relevant to and admissible in, the proceedings upon the Summons? A. No. In relation to other relief sought in the amended summonses and foreshadowed in the document entitled "Second Further Amended Summons", the appropriate order in the circumstances is to re-list the proceedings for the purpose of: (a) Enabling the parties to consider the judgment and to apply for any orders under Part 28 Rule 4(2); (b) Issuing further directions. The proceedings are, accordingly, to be re-listed on Thursday 14 December 2006 at 9.45 am.