Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Kane (No 2) [2015] NSWSC 1650 Hearing dates: 29 October 2015 Date of orders: 29 October 2015 Decision date: 29 October 2015 Jurisdiction: Common Law Before: Campbell J Decision: Under s 10A(4) Criminal Assets Recovery Act 1990 (NSW) the plaintiff is required to give notice to the defendant of its application by serving him no later than 5th November 2015 with the following: Summons; Statement of facts and circumstances; Form of proposed order; The order made on 28th October 2015 in respect of the Dural property; The non-publication made in the Camilleri matter. List for directions before me at 9:30 am 12th November 2015 with a view to dealing with the interim application if the parties are ready to proceed. Catchwords: CIVIL – ex parte orders sought under Criminal Assets Recovery Act 1990 – whether defendant should be notified of application Legislation Cited: Criminal Assets Recovery Act 1990 (NSW) Category: Consequential orders (other than Costs) Parties: New South Wales Crime Commission (Plaintiff) David Stuart Kane (Defendant) Representation: Counsel: Ms A. Miranda (Crime Commission) No appearance (Defendant) Solicitors: New South Wales Crime Commission (Plaintiff) File Number(s): 2015/318326 Publication restriction: Non Publication orders lifted as matter has concluded EX TEMPORE JUDGMENT (REVISED) 1. In this matter the New South Wales Crime Commission has commenced proceedings by summons, claiming an unexplained wealth order against the defendant. Yesterday, Ms Miranda, solicitor who appears for the Commission, moved for interim orders including a restraining order under s 10A in respect of the specified interests of the defendant in five parcels of land. For reasons I gave yesterday, I only made a restraining order in respect of the property referred to in those orders as the Dural property. 2. The reasons I am about to give assume some familiarity with my reasons from yesterday. I made a non-publication order in respect of those matters but that order does not apply to either the plaintiff or the defendant, of course. I adjourned the application until today so far as it related to the other four properties and ancillary relief under s 12, including compelling the defendant to provide a statement of particulars of his interests in property and submit himself to an examination under oath before the registrar. I did so to enable Ms Miranda to obtain further instructions in relation to the matter. 3. I expressed a provisional view, which is not accepted by the plaintiff, that as the ground upon which the restraining order was sought is a s 10A(5)(a)(ii) ground, I was not satisfied on the material that there were reasonable grounds for the suspicion of the authorised officer of the plaintiff that any serious crime derived property the defendant may have acquired, because of any serious criminal activities of Mr Camilleri, extended to his interest in the other four parcels of land. 4. In summary, the Commission argues that if I am satisfied he has acquired serious crime derived property in the circumstances encompassed by subparagraph (ii) of s 10A(5), then that is sufficient to justify, and indeed require, a restraining order directed to all of the property or, rather, all of the defendant's interests in property that the Commission had so far, by its investigations, been able to identify. 5. I have not heard the further argument about that matter which Ms Miranda wishes to direct me today because, it seems to me, there is a threshold question in this case about whether it is proper for me to require the Commission to give notice of the application to the defendant in accordance with the power conferred on the court by s 10A(4) before I consider making the restraining order. The Commission accepts that the defendant is a "person" within the meaning of subsection (4), but it argues I should refrain from requiring it to give him notice because of the facility with which even interests in real property can be dealt with by way of unregistered dealings, to the disadvantage of the Commission's interest in administering the Criminal Assets Recovery Act 1990 (NSW), and indeed the purposes of the Act itself. 6. I accept as a general proposition that even an interest in real property possibly can be dealt with expeditiously to the disadvantage of the public interest in the way the Commission puts it. However, that general proposition, whilst relevant, is not decisive of the discretion vested in the court under subsection (4). With great respect, that general proposition, in the nature of a truism, is always applicable and, where it decisive, the discretion vested in the court under subsection (4) would never be engaged and no occasion would ever arise for it to be exercised. 7. As proved by the affidavit of the authorised officer, Ms Bourne, there is just no evidence whatsoever from which I can infer that the defendant has engaged himself in any serious crime related activities, and indeed the Commission does not say so. There is no suggestion whatsoever that he has been complicit in the apparent serious crime related activity of Mr Camilleri. It is also apparent the other four parcels of land are held in common with other members of the defendant's family and there is simply no suggestion, let alone evidence, or other reliable information, that Mr Camilleri has any interest in those parcels of land or indeed that they were acquired by any funds derived from his apparent defalcations. 8. All the evidence establishes is that the defendant entered into a joint venture with Mr Camilleri to develop the Dural property requiring him to provide the materials, equipment and labour for the development. As consideration for his part in it, he was given the interest in the property, from which I infer he was to derive recompense upon completion of the development from its re-sale. I must say there is nothing before me to suggest that the defendant is other than a completely upright and honest member of the community. Bearing that in mind, and bearing in mind the right of citizens to full enjoyment of their property free from interference from the government other than where expressly justified by statute, I am of the view that the particular circumstances of this case engage the s 10A(4) discretion and I propose to require the Commission to give notice of this application to the defendant before I decide it so that he may have the fair opportunity of appearing and adducing evidence at the hearing of the application. 9. My orders are: 1. Under s 10A(4) Criminal Assets Recovery Act 1990 the plaintiff is required to give notice to the defendant of its application by serving him no later than 5th November 2015 with the following: 1. Summons; 2. Statement of facts and circumstances; 3. Form of proposed order; 4. The order made on 28th October 2015 in respect of the Dural property; 5. The non-publication made in the Camilleri matter. 1. List for directions before me at 9:30 am 12th November 2015 with a view to dealing with the interim application if the parties are ready to proceed. ********** Amendments 08 August 2018 - Non publication orders lifted as matter concluded DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2018