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[2025] NSWSC 863
General information, not legal advice.
Supreme Court of NSW
2025-08-05
Elkaim AJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: New South Wales Crime Commission v Weng [2025] NSWSC 863
Hearing dates: 5 August 2025
Date of orders: 5 August 2025
Decision date: 05 August 2025
Jurisdiction: Common Law
Before: Elkaim AJ
Decision: 1. If any order is necessary, Mr Theo Voros and Voros Lawyers have leave to withdraw from the proceedings and to cease to act for the defendant.
2. Pursuant to rule 12.1(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW), leave is granted to the plaintiff to discontinue these proceedings as to all claims of relief.
3. The plaintiff and the defendant are to pay their own costs of the proceedings.
4. The plaintiff is to provide the defendant with a copy of these reasons.
Catchwords: PROCEDURE — leave to discontinue proceedings under UCPR r 12.1 — where there are concerns about the plaintiff’s fitness to stand trial — leave granted
COSTS — where plaintiff sought leave to discontinue proceedings — where plaintiff largely self-represented
Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), ss 10A, 27
Uniform Civil Procedure Rules 2005 (NSW), r 12.1(1)(b)
Category: Procedural rulings
Parties: New South Wales Crime Commission (Plaintiff)
Jian Feng Weng (Defendant)
Representation: Counsel:
J Samuel (Plaintiff)
Solicitors:
New South Wales Crime Commission (Plaintiff)
Voros Lawyers (Defendant)
File Number(s): 2015/192926
Publication restriction: No
On 1 July 2015, the plaintiff filed a summons seeking orders under ss 10A and 27 of the Criminal Assets Recovery Act 1990 (NSW) relating to property in which the defendant had an interest. Ex parte orders were made by Adamson J (as her Honour then was) on the same day.
On 9 July 2025, the plaintiff filed a notice of motion seeking an order that it be permitted to discontinue the proceedings and that each party pay its own costs.
The motion is supported by an affidavit of Mr Mark Pulvirenti dated 28 May 2025. Mr Pulvirenti is an employee of the plaintiff. He sets out the history of the matter.
The defendant was represented by Mr Voros of Voros Lawyers who seems to have been endeavouring to withdraw from the proceedings since January 2017, when they telephoned the plaintiff’s office to say they no longer held instructions. A Notice of Ceasing to Act was attempted to be filed on 31 July 2020.
An email to my Associate on 1 August 2025 from Mr Voros indicated that there had been no communication with the defendant since June 2016. The lawyers sought leave to withdraw. Consent to this action was given by the plaintiff.
Returning to Mr Pulvirenti’s affidavit, he sets out the history of the matter and the reasons for the application to discontinue. In short, the defendant has significant mental health disorders such that he was declared unfit to be tried in the District Court on 3 November 2016. A further order to the same effect was made on 26 October 2017.
In June 2019 psychiatric advice was given stating that the defendant continued to be unfit for trial. On 15 November 2019 the District Court, sitting at Parramatta, issued a qualified finding of guilt. The defendant was sentenced to a “limiting term of four years imprisonment and referred to the MHRT.”
In January 2020, a psychiatric report indicated that the defendant was fit to be tried in a criminal trial, but concerns remained about his capacity to stand trial.
On 11 September 2020, the defendant was convicted of a single count of supplying prohibited drugs and was sentenced to 3 years imprisonment.
In 2024 the plaintiff “considered that the Commissions proceedings may not be suitable for hearing due to the Defendant’s lack of representation and inability to represent himself due to his extensive mental health disorders and history of being unfit for trial.”
In addition, the plaintiff has met with considerable difficulty in contacting the defendant and after pursuing a number of avenues, it was not until 5 May 2025, that the defendant provided the plaintiff with his telephone number and confirmed his address. The plaintiff nevertheless remains of the opinion that the defendant “may not have the requisite capacity to engage with the Commission in these proceedings due to his mental health disorders which he likely continues to suffer from and therefore is concerned that seeking his consent to this discontinuance would not be appropriate.”
Despite the view quoted above, the plaintiff has provided the defendant with copies of the notice of motion and Mr Pulvirenti’s affidavit. This occurred on 22 July 2025. There is an affidavit of service from Ms Nicole Garner dated 22 July 2025. There has been no response.
Another affidavit in support of the motion is from Ms Joy Samuel, a solicitor employed by the plaintiff. Her affidavit is dated 3 July 2025.
Ms Samuel says that the plaintiff, after conducting investigations has “considered that these proceedings are not suitable for hearing …”
Ms Samuel has corresponded with the defendant about discontinuing the proceedings. She arranged for the court documents to be served through the Forest Hill Police Station. She also sent the court documents to the defendant by email on 18 June 2025, and then again on 24 June 2025. He has not responded.
I can see no prejudice to the defendant in making the orders requested by the plaintiff; they are to his advantage. As to costs, it seems unlikely that the defendant has incurred any costs, not having been in contact or represented for some years.
Accordingly, I make the following orders:
If any order is necessary, Mr Theo Voros and Voros Lawyers have leave to withdraw from the proceedings and to cease to act for the defendant.
Pursuant to rule 12.1(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW), leave is granted to the plaintiff to discontinue these proceedings as to all claims of relief.
The plaintiff and the defendant are to pay their own costs of the proceedings.
The plaintiff is to provide the defendant with a copy of these reasons.
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New South Wales Crime Commission
Weng [2025] NSWSC 863