International Finance Trust Co Ltd v New South Wales Crime Commission

The appeal concerned restraining orders made under the *Criminal Assets Recovery Act 1990* (NSW) against International Finance Trust Co Ltd and others (the appellants), sought by the New South Wales Crime Commission (the respondent). The appellants contended that the primary judge erred in concluding that an affidavit sworn by an authorised officer disclosed reasonable grounds for the suspicion required by section 10 of the Act, and that the primary judge failed to provide adequate reasons for the orders made.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the authorised officer's affidavit established reasonable grounds for suspicion, and whether the Supreme Court of New South Wales, in making the restraining orders, exercised a power that was repugnant to or incompatible with its federal judicial power under Chapter III of the Commonwealth Constitution. Further questions arose regarding the admission of certain paragraphs of the affidavit and whether the proceedings were validly entertained without an identified defendant and in alleged non-compliance with procedural rules.

The majority of the Court of Appeal allowed the appeal, setting aside most of the restraining orders made by the primary judge. The Court reasoned that the affidavit did not sufficiently disclose reasonable grounds for the required suspicion, as it lacked specific details linking the appellants' assets to criminal activity. The Court also found that the primary judge had not adequately articulated the reasons for making the orders. While the Court acknowledged the potential for conflict between state legislation authorising such orders and the federal judicial power, it did not find it necessary to definitively resolve this constitutional question given its findings on the sufficiency of the affidavit.

Consequently, the orders of the primary judge dated 13 May 2008, 16 May 2008 (with specific exceptions), 20 May 2008, and 27 May 2008 were set aside. The respondent was ordered to pay the appellants' costs, with liberty to apply within seven days regarding the precise form of the orders.