NSW Crime Commission v Chen

Judgment

1. In July 2017 I gave judgment in NSW Crime Commission v Chen [2017] NSWSC 943, concluding that the further restraining orders which the Commission sought under s 10A of the Criminal Assets Recovery Act 1990 (NSW) had to be made and refusing the application made by Ms Chen under s 10C, in respect of the orders earlier made by Button J under s 10A in NSW Crime Commission v Chen (Supreme Court (NSW), Button J, 4 March 2014, unrep).
2. The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event, that being an order that Ms Chen bear the Commission's costs of the two motions.
3. Ms Chen seeks a departure from the usual order, submitting that some other order should be made under r 42.1, namely, that while conceding that she should bear the costs of the Commission's November 2016 motion, on which it succeeded, the order as to the costs of her 4 October 2016 motion should be that each party should bear their own costs.
4. There is no question as to the Court's discretion to make such an order under s 98 of the Civil Procedure Act 2005 (NSW), but the Commission opposed such a departure from the usual order.
5. Ms Chen's case was that while the proper construction of s 10C of the Criminal Assets Recovery Act had not been addressed in the parties' written submissions, it arose at the hearing and was dealt with at [22] - [86] of the July 2017 judgment. That comprised close to one third of the reasons given for the orders made, after that had become a focal point of the hearing, following questions which I had raised with the parties.
6. Further, in relation to Ms Chen's application, there was an issue as to whether the affidavit sworn by Mr Spark in support of the original s 10A application, dealt with by Button J, had to be tendered. I concluded at [90] - [94]: "Did Mr Spark's 2014 affidavit need to be separately tendered on the s 10C application? 90 It was not Ms Chen's case that when the s 10A orders were made by Button J in 2014, that no reasonable grounds then existed for the suspicions to which Mr Spark deposed in his 2014 affidavit. There was, however, a question as to whether, on the s 10C application, his 2014 affidavit had to be tendered. 91 Given that the Commission has no right to tender evidence on the s 10C application, the affidavit could only have been tendered by Ms Chen, if that were necessary. I am satisfied that it was not. 92 The ground specified in s 10C(1)(a) on which Ms Chen advanced her case is concerned with "the relevant suspicion", namely that to which Mr Spark deposed in his 2014 affidavit. That affidavit forms part of the Court record. It is not only what the Commission relied on, to advance its s 10A application, but as Button J explained in his judgment, what then satisfied the Court that the restraining order sought had to be made ex parte, it establishing the existence of reasonable grounds for Mr Spark's suspicions and concerns. 93 Section 10C(1)(a) expressly requires the Court to consider that affidavit again, on the application to set aside the restraining order, together with any other evidence adduced either on the s 10A application, or by the applicant on the s 10C application. In the result, without reference to Mr Spark's affidavit, Ms Chen could never satisfy the onus s 10C imposes upon her. 94 It is accordingly not necessary for the affidavit supporting the restraining order application to be separately tendered on the s 10C application."