New South Wales Crime Commission v White [2015] NSWSC 760

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v White [2015] NSWSC 760 Hearing dates: 15 June 2015 Date of orders: 15 June 2015 Decision date: 15 June 2015 Jurisdiction: Common Law Before: Campbell J Decision: Adjournment application refused Catchwords: PROCEDURE – civil – interlocutory issues – adjournment application to request legal aid Legislation Cited: Criminal Assets Recovery Act 1990 (NSW) Category: Consequential orders (other than Costs) Parties: New South Wales Crime Commission (Plaintiff) Rodney Boyd White (Defendant) Representation: Counsel: Ian Temby QC together with Ellen Goh (Crime Commission) Defendant in person

Solicitors: File Number(s): 2014/00204099

EX TEMPORE JUDGMENT (REVISED) 1. The New South Wales Crime Commission is applying for summary judgment on its application for a forfeiture order under the provisions of s 22 Criminal Assets Recovery Act 1990 (NSW), The defendant is Rodney Boyd White who appears self-represented by audio visual link from the Wellington Correctional Centre. 2. Mr White has applied for an adjournment of the hearing to enable him to pursue an application for legal aid to apply, as I understand the only way in which it can be put, for exclusion orders with respect to the property the subject of the Commission's application. 3. The application for summary judgment was filed on 8 August 2014. The orders sought in the application, which was served upon Mr White in accordance with the invariable practice of the court, included granting him leave to make an application for exclusion orders within six months. By 15 March 2015 no such application had been made. 4. I am informed by Mr Temby QC, who appears for the Commission, that when the matter was first returned before the court a Mr Gould appeared, not on instructions from Mr White, but more or less as amicus in the expectation that he would receive instructions from Mr White. I am informed also by Mr Temby that discussions between the Commission and Mr Gould failed to arrive at any agreement in relation to the matter. 5. The matter has been mentioned before the registrar on a number of occasions. On 13 April 2015 the common law registrar set the matter down for hearing today with the expectation that the matter would be referred to the duty judge for the application to be dealt with. Mr White acknowledged that he had notice that the application would be dealt with today at, I infer, some time shortly after that date. 6. He informs me that he spoke to Legal Aid some weeks ago about the possibility of obtaining a grant of legal aid for this application. He also informs me that he has applications for legal aid, that is to say he has the forms to complete to make an application for legal aid which he has not yet completed. He tells me that he wants an adjournment to complete this application so that he can contest that the Commission is entitled to a forfeiture order. 7. Mr Temby has indicated that the proposed orders sought today are in accordance with the form of orders contained in the notice of motion for summary judgment and will also leave a six months window of opportunity for Mr White to apply for an exclusion order if so advised. 8. From what Mr White has said, he contests that the property proposed to be the subject of the forfeiture order is covered by the Act. I observe that by the court proceeding with the application today, he will not be denied that opportunity if he avails himself of the liberty which will be granted, if the Commission is successful, to bring an application for an exclusion order. 9. I am not satisfied that Mr White's application for an adjournment in those circumstances should be acceded to. He has had more than ample opportunity and notice of this application from the time it was first filed and served back in August 2014 and again from the time it was fixed today in April 2015. 10. Frankly, his explanation about being unrepresented is not satisfactory. It is apparent to me, and I infer, that having spoken to Legal Aid on the telephone he has been equipped with forms to apply for it and he has not done what he should have done to promote his own interests by applying for legal aid in a formal way. 11. Moreover, it is apparent that the relief sought today will not have the effect, if it is acceded to, of finally shutting him out from asserting any interest contrary to the interest of the Commission if and when he receives legal advice. Moreover, he spoke to me about the fact that evidence might be available which will show that the property was not the proceeds of crime, if I may put it that way. 12. Accepting the difficulties of attending to one's affairs from prison, it is apparent that he has done nothing about that since August 2014. 13. I am not satisfied that the interests of justice require that I grant the adjournment that Mr White seeks and his application is refused.