Cook v NSW Crime Commission

In the case of Cook v NSW Crime Commission, the applicant sought to set aside confiscation orders that had been made in his absence, as well as in the absence of his former solicitor, who had been unable to attend due to the applicant’s incarceration. The matter was heard by the Supreme Court of New South Wales. The NSW Crime Commission had applied for the orders under the Criminal Assets Recovery Act 2006, seeking to confiscate assets valued at over $4 million, which were deemed to be proceeds of crime.

The primary legal issue before the court was whether the confiscation orders were valid given that the applicant and his former solicitor were not present when they were made. The court had to consider the requirements of natural justice and procedural fairness, particularly in light of the applicant's incarceration and the change of legal representation. The court also needed to address whether the Judge was properly informed about the change of solicitor at the relevant time.

The court held that the confiscation orders were invalid due to a significant procedural irregularity. The Judge was not made aware that the applicant had changed solicitors, which meant that the applicant was not afforded an opportunity to be heard. This failure to provide notice of the change of solicitor to the Judge and the absence of both the applicant and his former solicitor at the hearing constituted a breach of procedural fairness. Consequently, the court set aside the confiscation orders. The court also noted the importance of ensuring that both the applicant and their legal representative are given adequate notice and opportunity to be heard in such proceedings.