NSW Crime Commission v Chen [2017] NSWSC 943

Supreme Court New South Wales

Medium Neutral Citation: NSW Crime Commission v Chen [2017] NSWSC 943 Hearing dates: 26 and 27 April 2017 Date of orders: 17 July 2017 Decision date: 17 July 2017 Jurisdiction: Common Law Before: Schmidt J Decision: The further restraining orders which the Commission seeks under s 10A must be made and Ms Chen's s 10C application refused.

The usual order as to costs under r 42.1 is that costs as agreed or assessed follow the event. In this case that is an order in favour of the Commission. The parties will be heard if some other order is sought.

Short minutes of the orders reflecting the conclusions reached should be filed within 7 days. Catchwords: PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining orders – notice of motion seeking to set aside restraining orders and summary orders – notice of motion seeking further restraining orders – proper construction of s 10C of the Criminal Assets Recovery Act – whether the 2014 s 10A order should be set aside – whether evidence obtained from the examination in 2014, after the dismissal of the charge, had been obtained in accordance with law and whether it was available to Crime Commission to rely on, in forming suspicions as to whether "serious crime related activity" was engaged – whether further orders under s 10A should be made – whether the Briginshaw test applies to an application under s 10A – further restraining orders to be made – s 10C application refused

STATUTES – acts of parliament – interpretation – s 10C of the Criminal Assets Recovery Act 1990 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW) Crime Commission Act 2013 (NSW) Criminal Assets Recovery Act 1990 (NSW) Criminal Assets Recovery Amendment Act 2009 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 Briginshaw v Briginshaw (1988) 60 CLR 336; [1938] HCA 34 Burge v Burge [2015] NSWCA 289 George v Rockett (1990) 170 CLR 104; [1990] HCA 26 Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52 International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 Moore v R [2016] NSWCCA 260 NSW Crime Commission v Chen (Supreme Court (NSW), Button J, 4 March 2014, unrep) New South Wales Crime Commission v Lee and Ors [2010] NSWSC 1012 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Queensland Bacon Proprietary Ltd v Rees (1966) 115 CLR 266 at 303; [1966] HCA 21 Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 November 2009 at 19 769 Category: Procedural and other rulings Parties: NSW Crime Commission (Plaintiff) Yan Ping Chen (Defendant) Representation: Counsel: Mr I Temby QC with Mr R Bhalla (Plaintiff) Mr B Walker SC (Defendant)