New South Wales Crime Commission v Lee [2011] NSWCA 398 (5 December 2011)

Last Updated: 22 December 2011

Court of Appeal New South Wales

Case Title:	New South Wales Crime Commission v Lee
Medium Neutral Citation:	[2011] NSWCA 398
Hearing Date(s):	5 December 2011
Decision Date:	05 December 2011
Jurisdiction:
Before:	Macfarlan JA at [1]; [8] Whealy JA at [6] Tobias AJA at [7]
Decision:	Proceedings adjourned to the Registrar's list on Monday 12 December 2011. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - procedure - respondent proposing to challenge the correctness of intermediate appellate court decision - respondent failed to notify Registrar at the earliest opportunity in accordance with Practice Note SC CA 1 - application for leave to appeal adjourned for hearing before a five judge bench - question of costs thrown away by adjournment to be considered at the further hearing
Legislation Cited:
Cases Cited:	Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Hammond v Commonwealth of Australia [1982] HCA 42; 152 CLR 188
Texts Cited:
Category:	Principal judgment
Parties:	New South Wales Crime Commission (Appellant) Jason Lee (also known as Do Young Lee) (First Respondent) Seong Won Lee (Second Respondent)
Representation
- Counsel:	Counsel: R Bromwich (Appellant) M Thangaraj (First Respondent) G Jones (Second Respondent)
- Solicitors:	Solicitors: New South Wales Crime Commission (Appellant) Nyman Gibson Stewart (Respondents)
File number(s):	CA 2010/118966
Decision Under Appeal
- Court / Tribunal:
- Before:	RS Hulme J
- Date of Decision:	28 February 2011
- Citation:	NSW Crime Commission v Lee And Anor [2011] NSWSC 80
- Court File Number(s)	SC 2010/118966
Publication Restriction:

JUDGMENT

1. MACFARLAN JA : This is an application to appeal from a judgment of RS Hulme J in which his Honour distinguished the majority decision of the Full Federal Court in Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258. The respondent seeks to support RS Hulme J's approach but in the alternative says that the decision in OK was incorrect.

2. The minority judgment in OK was given by Spender J. His view accorded with that taken at first instance by Mansfield J. The decision raises an important question of principle as to the effect of the High Court's decision in Hammond v Commonwealth of Australia [1982] HCA 42; 152 CLR 188 as to the protections that are, or may be, afforded by the law to persons accused of serious crime.

3. The High Court's decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135] indicates that OK is a decision that this Court should follow unless convinced that it is plainly wrong. Paragraph 38 of Practice Note SC CA 1 relating to the Court of Appeal accordingly applies. It requires a party wishing to challenge a decision such as OK to give notice to the Registrar at the earliest opportunity. That did not occur in this case and it was necessary for the Court to give notice to the parties yesterday of the existence of the requirement.

4. Argument has taken place today as to the course that should be followed. In light of the importance of the question with which the decision in OK deals, my view is that the application for leave should be adjourned for hearing before a five judge bench of this Court on a date to be fixed. Directions should be made as to the filing of written submissions and any further evidence.

5. Ordinarily one would expect an order for costs to be made against the respondents in circumstances such as the present as it is they who seek to challenge the decision in OK and it is they who did not give the notice required by the Practice Note. However, it seems from the discussion that has occurred today that the applicant Crime Commission may wish to enlarge its arguments. Such enlargement might provide the basis for a different order as to costs being made. In those circumstances my view is that costs should be reserved and the question of whether the respondent should be ordered to pay the costs thrown away by the adjournment today should be considered at the further hearing of the appeal.

6. WHEALY JA : Yes, I agree.

7. TOBIAS AJA : I also agree.

[Discussion with counsel then ensued].

8. MACFARLAN JA : The only order that the Court will make at this stage is that the proceedings be adjourned to the Registrar's list next Monday 12 December 2011 for the purpose of the fixing of a further hearing before a bench of five and for the purpose of the making of directions as to the further conduct of the application for leave and the prospective appeal.

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