Barbeliuk v NSW Commissioner of Police

BARBELIUK
v
NSW COMMISSIONER OF POLICE & ORS
[2020] HCASL 187
S43/2020

The applicant requires an extension of time within which to seek special leave to appeal from an interlocutory order of the Court of Appeal of the Supreme Court of New South Wales (Leeming and Payne JJA, Simpson A‑JA) reserving to a single judge of appeal a question concerning the use that may be made of a computer seized pursuant to an invalid search warrant. The applicant also requires an extension of time to seek special leave to appeal from a subsequent interlocutory order of the Court of Appeal (Leeming JA) permitting the legal representatives of the police, but not the police themselves, to access information contained on the computer, upon confidentiality undertakings, in order to determine whether to argue that the police not be prohibited from having access to the information on the computer in accordance with the process described in Caratti v Commissioner of Australian Federal Police [No 2] [2016] FCA 1132.
Given that it remains to be determined whether the police will be required to return the computer to the applicant or prohibited from accessing the information it contains, and it is not suggested that an appeal would not lie from Leeming JA's order to the Court of Appeal, this is not an appropriate vehicle for the grant of special leave. It would be futile, therefore, to grant the extension of time sought.
Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell G.A.A. Nettle

9 September 2020

CaseChat Overview and Summary

The applicant, Barbeliuk, sought an extension of time to appeal an interlocutory order from the Court of Appeal of the Supreme Court of New South Wales concerning the use of a computer seized pursuant to an invalid search warrant. Barbeliuk also requested an extension to appeal an order permitting the police's legal representatives, but not the police themselves, to access information on the computer under confidentiality undertakings. The High Court was asked to grant special leave to appeal and an extension of time.

The legal issues before the court were whether the police would be required to return the computer or be prohibited from accessing the information it contained, and whether an appeal lay from the interlocutory order to the Court of Appeal. The court had to determine if granting the extension of time would be futile given the unresolved issues and the possibility of a future appeal.

The court found that it was not appropriate to grant special leave as it remained uncertain whether the police would be required to return the computer or be prohibited from accessing the information. Additionally, the court noted that it was not suggested that an appeal would not lie from the interlocutory order to the Court of Appeal. Therefore, granting the extension of time would be futile. The application was dismissed with costs.

Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), the Registrar was directed to draw up, sign and seal an order dismissing the application with costs.

CaseChat Overview and Summary

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