Director of Public Prosecutions for the State of South Australia v Soniard Mrishaj and Illyrian Investments Pty Ltd

The case before the court involved the Director of Public Prosecutions for the State of South Australia and two respondents, Soniard Mrishaj and Illyrian Investments Pty Ltd. The central dispute revolved around the validity of section 24 of the Criminal Assets Confiscation Act 2005 (SA), which pertains to the issuance of restraining or freezing orders to prevent the disposal of proceeds of crime. The respondents sought to have these orders declared void, arguing that the section in question infringed upon the judicial integrity of the court by potentially preventing them from challenging the orders promptly. The matter was heard by the High Court of Australia.

The primary legal issue before the court was whether section 24 of the Criminal Assets Confiscation Act 2005 (SA) was inconsistent with the institutional integrity of the court and its role as a repository of federal jurisdiction. Specifically, the court needed to determine if the provision allowed for ex parte applications and subsequent freezing orders in a manner that undermined judicial integrity, as had been found in previous cases such as International Finance Trust. The respondents argued that the inability to dissolve the ex parte restraining order without delay was a critical factor in determining the invalidity of the section. The court also needed to consider whether the section was repugnant to the court's institutional integrity and if it effectively conferred judicial power on non-judicial organs of government.

In delivering the judgment, the court held that section 24 of the Act did not undermine the institutional integrity of the court or its role as a repository of federal jurisdiction. The court retained discretion over whether to hear matters ex parte, to impose conditions on any ex parte order, and to allow respondents to apply to revoke an order once they had received notice of the application. This discretion was deemed an orthodox position and did not compromise judicial integrity. The court distinguished the present case from International Finance Trust, finding that the ability to challenge ex parte orders did not result in the impugned section being repugnant to the institutional integrity of the court. Consequently, the respondents were not entitled to have the section declared void, nor the restraining orders made on 14 April 2022 and 17 May 2022.

The final orders of the court were that section 24 of the Criminal Assets Confiscation Act 2005 (SA) was valid and not incompatible with the institutional integrity of the court. The respondents were not entitled to any order declaring the section or the restraining orders void. The court directed the parties to present their submissions on costs.