JUDGMENT
1 HER HONOUR: On 23 January 2009 the plaintiff commenced proceedings by filing a summons in Court pursuant to a grant of leave.
2 The relief sought in the summons included an order pursuant to s 10(2) of Criminal Assets Recovery Act 1990 ("the Act") restraining access to, or dealing in, the funds held in nominated bank accounts in the name of the defendant together with a general restraint on the disposition or dealing with other unspecified interests in property to which she is entitled ("the restraining orders"). Ancillary orders pursuant to s 12 of the Act requiring the defendant to furnish a statement verified by oath detailing the full particulars of the nature and extent of any interest in property held by her, together with an order that she be examined on oath concerning her financial affairs were also sought. In addition, pursuant to s 27 of the Act, the summons sought a substantive order requiring the defendant to pay an amount assessed by the Court as the value of proceeds derived from her illegal dealings over the previous six years.
3 In the proceedings before me the plaintiff moved on the summons only to the extent of seeking the restraining orders and the ancillary orders.
4 By way of an opening submission, but before any evidence had been tendered in support of the summons, my attention was drawn to the Court of Appeal decision in International Finance Trust Company Limited & Anor v New South Wales Crime Commission [2008] NSWCA 291 as authority for the approach which the Court is to adopt to an application under s 10 of the Act. I was also referred to a recent decision of Adams J in New South Wales Crime Commission v Vu & Tran (Supreme Court of New South Wales, 23 December 2008, unreported) and a more recent decision of Harrison J in New South Wales Crime Commission v Sun [2009] NSWSC 6 where their Honours both referred to International Finance and the principled approach to applications of this kind as reflected in the judgment of the President at [21]-[24], with whom Beazley JA agreed at [56], and the judgment of McClellan CJ at CL at [132]-[135] who was in agreement with the majority on this aspect.
5 In both cases the Court was asked to make orders of the kind sought in the proceedings before me. In each case it would appear that the application was supported by affidavit evidence of a similar kind to the evidence upon which the plaintiff proposed to rely in the instant proceedings, namely by the deponent to the supporting affidavit relying upon a facts sheet, prepared as a result of a police investigation into the defendant's conduct, to ground the suspicion that the defendant has engaged in a serious crime related activity or activities as defined.
6 In Vu & Tran Adams J refused the application. Although his Honour accepted that having regard to the decision of the Court of Appeal in International Finance it was open to the plaintiff to seek restraining orders on the basis of the deponent's reliance on a police officer's account of the findings of a police investigation, evidence that would otherwise be inadmissible hearsay, his Honour was not satisfied that the plaintiff's application was adequately supported by the evidence tendered before him where the person from whom the deponent acquired the information contained in the facts sheet was not identified. In Sun, after considering the approach taken by Adams J, Harrison J came to a different view as to the relevant principles to be applied in assessing the adequacy of the evidence tendered in support of the application and, after considering the evidence upon which the plaintiff relied in the proceedings, granted the relief sought. Despite the fact that the plaintiff sought to persuade his Honour that Adams J was in error in refusing to make the orders or that his approach to an assessment of the evidence was "unduly technical", his Honour was not satisfied it was either necessary or appropriate for him to make such a finding.
7 Given the differing approaches by Harrison and Adams JJ, coupled with the fact that I was satisfied of the need to ensure that the funds held in the nominated bank accounts were not dissipated over the long weekend, it being 4:45pm on Friday 23 January 2009 when leave was granted to commence the proceedings, I made orders restraining any dealing with the funds in exercise of the Court's inherent power and stood over the further hearing of the summons to 9:30am on Tuesday 27 January 2009.