New South Wales Crime Commission v D154 [2019] NSWSC 1

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v D154 [2019] NSWSC 1 Hearing dates: 5 November 2018 Date of orders: 10 January 2019 Decision date: 10 January 2019 Jurisdiction: Common Law Before: Wilson J Decision: 1. Notice of Motion filed 3 May 2016 is dismissed 2. Costs on an ordinary basis in favour of the New South Wales Crime Commission Catchwords: CRIMINAL LAW – application to set aside orders granting leave to the NSW Crime Commission to examine a person charged with criminal offences – leave previously granted pursuant to s 35A Crime Commission Act 2012 (NSW) – significant delay following grant of leave without examination taking place – related proceedings taken in the Court of Appeal - asserted change of circumstances such that orders granting leave should be set aside – question of public interest in full investigation – criminal proceedings likely to be soon resolved – scope of rule 36.16(2)(b) Uniform Civil Procedure Rules 2005 (NSW) to allow evidence of events after the entry of challenged orders to be considered - asserted invalidity of s 35A under the Constitution – asserted abuse of process in agitating an argument previously advanced Legislation Cited: Constitution, Ch III Crime Commission Act 2012 (NSW) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Commissioner of Police v Elzein [2017] NSWCA 142) D151, D152, D154 v New South Wales Crime Commission [2017] NSWCA 143; (2017) 94 NSWLR 738; (2017) 35 ALR 484 Gamser v Nominal Defendant (1977) 136 CLR 145 Grollow v Palmer (1995) 184 CLR 348 Johnson v Gore Wood & Co [2002] 2 AC 1 Love v Attorney General (NSW) (1990) 169 CLR 307 NSW Crime Commission v D150 [2015] NSWSC 1842 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 Smith v NSW Bar Association (1992) 176 CLR 256 USB AG v Tyne [2018] HCA 45 Category: Principal judgment Parties: New South Wales Crime Commission (plaintiff / respondent to the application) D154 (defendant / applicant on the Motion) Representation: Counsel: Ms. J. Williams for NSW Crime Commission Mr. P. Lange for D154