New South Wales Crimes Commission v Warren Richards [2010] NSWSC 1399

New South Wales Supreme Court

CITATION : New South Wales Crimes Commission v Warren Richards [2010] NSWSC 1399

HEARING DATE(S) : 30 November 2010

JUDGMENT DATE : 30 November 2010

JURISDICTION : Common Law

JUDGMENT OF : McCallum J

DECISION : Application granted.

LEGISLATION CITED : Criminal Assets Recovery Act 1990 Drug Misuse and Trafficking Act 1985

CATEGORY : Principal judgment

CASES CITED : International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291 New South Wales Crime Commission v Meads [2010] NSWSC 1145

PARTIES : New South Wales Crimes Commission (Applicant) Warren Richard (Respondent)

COUNSEL : A Bishop (Sol) (Applicant)

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCALLUM J

TUESDAY 30 NOVEMBER 2010

NEW SOUTH WALES CRIME COMMISSION v WARREN RICHARDS

JUDGMENT - Application for restraining order 1 HER HONOUR: Before the Court is an ex parte application by the New South Wales Crime Commission for a restraining order under s10A of the Criminal Assets Recovery Act 1990 against Mr Warren Richards. I have determined that the application must be granted, for reasons to which I shall come shortly. Before doing so, I should say something on the subject of the obligation of the Court to give reasons for making such an order.

2 In International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291, the Court of Appeal decided, by majority, that this Court was required to give reasons for granting a restraining order under s10 of the Act as it then stood: at [50] per Allsop P, Beazley JA agreeing at [56]. Separately, the Court unanimously rejected an argument that s 10 was constitutionally invalid in that it invested the Court with a power repugnant to judicial power under Chapter III of the Commonwealth Constitution: at [100] – [101] per McClelland CJ at CL; Allsop P agreeing at [2]; Beazley JA agreeing at [56]. 3 That decision subsequently went on appeal to the High Court where it was held that the section was constitutionally invalid per French CJ at [59], per Gummow and Bell JJ at [98]-[99] on the grounds that it engages the Supreme Court in activity which is repugnant to the judicial process as understood and conducted throughout Australia: at [98]-[99] per Gummow and Bell JJ; at [160] and [170] per Heydon J; Hayne, Crennan and Keifel JJ disagreeing at [136]. In those circumstances, there was no occasion for the High Court to consider the obligation to give reasons for granting an order under that section. 4 The legislation was subsequently amended. The present application is made under the amended legislation, as to which Ms Bishop, on behalf of the Crime Commission, has drawn my attention to a decision of Garling J in which his Honour concluded that reasons are no longer required to be delivered by the Court when an ex parte application is made for a restraining order under s10A: see New South Wales Crime Commission v Meads [2010] NSWSC 1145 at [33] and following.