Fantakis v Crime Commission of NSW

[2013] NSWSC 765

Supreme Court

New South Wales

Medium Neutral Citation:

Fantakis v Crime Commission of NSW [2013] NSWSC 765

Hearing dates:

13/06/2013

Decision date:

13 June 2013

Before:

Fullerton J

Decision:

1. Plaintiff's summons dismissed.

2. First defendant's notice of motion dismissed.

3. No orders as to costs.

Catchwords:

ADMINISTRATIVE LAW - plaintiff seeks an order the effect of which would be to stay any hearing conducted by the Crime Commission at which the plaintiff is summonsed to appear

Legislation Cited:

Crime Commission Act 2012
Criminal Assets Recovery Act 1990
Uniform Civil Procedure Rules 2005

Category:

Principal judgment

Parties:

Antonia Fantakis (Plaintiff)
Crime Commission of NSW (1st Defendant)
Police Commissioner of NSW (2nd Defendant)

Representation:

In person (Plaintiff)
R Bhalla (1st Defendant)
In person (Plaintiff)
Solicitor to the NSW Crime Commission (1st Defendant)
B Thomson (2nd Defendant)

File Number(s):

2013/120005

Judgment

1. HER HONOUR: The plaintiff brings proceedings by summons dated 18 April 2013 in which the New South Wales Crime Commission is the first named defendant and the New South Wales Commissioner of Police the second named defendant. Mr Thomson, instructed by the Crown Solicitor, appeared in the proceedings but sought orders by notice of motion, filed instanter, that the second defendant be permanently removed as a defendant in the proceedings pursuant to r 6.29(a) of the Uniform Civil Procedure Rules 2005 (UCPR) as no orders were sought against his client. That order was made (without any order as to costs) and Mr Thomson, with my leave, withdrew.

1. Counsel appeared for the New South Wales Crime Commission and moved by notice of motion filed 30 May 2013 for orders under r 13.4 of the UCPR dismissing the summons as disclosing no reasonable cause of action or otherwise as an abuse of the process of the Court.

1. The hearing of the motion and the summons are listed together. It is convenient to deal with the summons, and the evidence in support of it, which will have the effect of disposing of the notice of motion by the final orders I propose to make.

1. In support of the summons, the plaintiff relies upon an affidavit sworn by her on 18 April 2013. She also tendered a document headed "Tendered Statement of Issues" which is, in effect, a repetition of the orders sought by summons and the supporting affidavit. A further document headed "Attachment 1", attaches a body of material which has, in my view, no relevance to the proceedings.

1. In summary, and as best as I can understand it, the relief the plaintiff seeks is an order the effect of which would be to stay any hearing conducted by the Crime Commission at which she is summonsed to appear on the basis that a precondition to the exercise of the jurisdiction to compel the attendance of a person by summons under s 24 of the Crime Commission Act 2012 ("the Act") has not been met and that the proceedings before the Crime Commission are otherwise an abuse of process.

1. In that connection I note that a series of summonses have issued pursuant to s 24 of the Act under which the plaintiff was summonsed to appear before the Crime Commission (the most recent being dated 16 April 2013) which, in terms, require the plaintiff to appear before the Crime Commission on a given date, at a given time, to give evidence and produce any document or other thing required by the executive officer presiding at that hearing.

1. It would appear that the plaintiff has not appeared in answer to any of the summonses that have issued and, most particularly, did not appear in answer to the most recent summons dated 16 April 2013 on the basis, inter alia, that she was medically unfit as certificated by Dr Saker, a consultant psychiatrist. It would also appear, as counsel has informed me, that it remains the current intention of the Crime Commission to issue a further summons to require the attendance of the plaintiff at a rescheduled hearing.

1. The statutory precondition to the exercise of the power to compel the attendance of the plaintiff is said, in submissions by her, to result from the operation of Pt 4 of the Act which provides, in s 61(1), that the Governor may appoint an Inspector of the New South Wales Crime Commission who has the functions conferred on an Inspector under the Act. As I understand the situation, no Governor has been appointed at this time. Be that as it may, the fact that an Inspector has not been appointed has no relevant bearing on the operation of the Act. Neither does it operate as a precondition to the exercise of the powers and functions of the Crime Commission under the Act, in particular, its power to investigate relevant criminal activity and to obtain evidence for use in criminal prosecutions under the Criminal Assets Recovery Act 1990.

1. I note that on the face of the summonses, to which I have earlier referred, the Assistant Commissioner of the New South Wales Crime Commission advises that the hearing at which the plaintiff was required to appear is being held for the purposes of an investigation by the Crime Commission, the ambit of which is identified by a notice issued under s 61 of the Act which accompanied service of the summons.

1. Since no other basis for a stay of the proceedings was pressed or otherwise identified in the evidence an order seeking a stay of proceedings before the New South Wales Crime Commission is refused.

1. The plaintiff also seeks an order that she be excused permanently from attending any Crime Commission hearing by reason of the fact that she claims to be permanently medically unfit.

1. This Court has no jurisdiction to determine the question of permanent medical unfitness, either at all or at the very least in the absence of evidence bearing directly upon that question. The evidence which is before me is in the form of medical certificates dated variously 12, 13 and 20 March 2013, to the effect that, as at that date, in the view of the plaintiff's medical advisors, she was unfit to attend the Crime Commission, in part by reason of what is said to be her severe depression and because of a major anxiety disorder from which she suffers.

1. The plaintiff has appeared before me today with the assistance of an interpreter. My observations, uninformed as they are by medical evidence, are that she does appear to have a compromised capacity to participate in curial proceedings. However, the question as to whether or not that founds a reasonable excuse to excuse her from answering any summons which may be served upon her is a matter to be properly determined by the presiding officer at any hearing that is rescheduled. The plaintiff would, no doubt, be well aware of the need to consult with medical advisors and to have whatever medical certification in support of her claim to be unable to participate in proceedings available to produce if she is to press the excuse for non-attendance which is provided to her under the Act.

1. Accordingly, the further order she seeks by summons that she be excused permanently from attending any Crime Commission hearing is also refused.

1. The orders I make are as follows:

1. The plaintiff's summons is dismissed.

2. The first defendant's notice of motion is dismissed.

3. No orders as to costs.

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Decision last updated: 13 June 2013