Dickson v Commissioner, Australian Federal Police

The applicant, Mr. Dickson, sought to set aside a restraining order and subsequent forfeiture of property, alleging fraud and abuse of process by the Commissioner of the Australian Federal Police. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court were whether the applicant was entitled to set aside the restraining order on the grounds of actual fraud, and whether the applicant, being in custody serving a sentence for Commonwealth offences, required leave to commence proceedings under section 4 of the *Felons (Civil Proceedings) Act 1981* (NSW). This latter issue involved determining whether a federal indictable offence constituted a "serious indictable offence" for the purposes of that Act, and the application of ss 79 and 80 of the *Judiciary Act 1903* (Cth) and s 21 of the *Interpretation Act 1987* (NSW).

The Court considered the stringent requirements for setting aside a judgment on the basis of actual fraud, noting that such claims must be substantiated with clear and convincing evidence. Regarding the *Felons (Civil Proceedings) Act*, the Court held that federal indictable offences were to be treated as serious indictable offences for the purposes of the Act, meaning the applicant was required to obtain leave to commence proceedings. As the applicant had not obtained this leave, his application was fundamentally flawed.

The Court of Appeal granted the applicant leave to seek leave to appeal, but ultimately dismissed the application for leave to appeal and ordered the applicant to pay the respondent's costs.