International Finance Trust Company Ltd v New South Wales Crime Commission (No 2)

The case before the Court of Appeal of New South Wales involved International Finance Trust Company Ltd (IFTCL) and the New South Wales Crime Commission. The dispute concerned consent orders made regarding the disposal of property, which IFTCL claimed an interest in, and which were made without notice to IFTCL. The proceedings also touched upon the interaction between various provisions of the *Criminal Assets Recovery Act 1990* (NSW) and the effect of the dismissal of proceedings on existing orders.

The Court was required to determine several legal issues. These included whether the making of consent orders for the disposal of property, without notice to a third party claiming an interest, constituted a denial of procedural fairness, specifically the hearing rule. The Court also considered the extent to which the constitutional invalidation of a provision within the *Criminal Assets Recovery Act 1990* (NSW) might affect orders made under other provisions of that Act. Furthermore, the Court examined whether it was necessary to order the revocation of overseas registrations of restraining orders following the dismissal of the proceedings in which those orders were made, and the effect of the dismissal of proceedings on specific orders made within those proceedings that were not expressly set aside. Finally, the Court considered the distinction between jurisdiction and the satisfaction of factual preconditions for its exercise, particularly in relation to consent orders.

The Court reasoned that the hearing rule, a component of procedural fairness, requires a party to be given an opportunity to present their case before a decision is made that affects their rights or interests. In this instance, the consent orders were made without affording IFTCL such an opportunity to assert its claimed interest in the property. The Court also addressed the impact of the dismissal of the underlying proceedings, concluding that orders made within those proceedings, even if not expressly set aside, were discharged by virtue of the dismissal. The Court further clarified that the constitutional invalidation of one provision did not necessarily invalidate all orders made under other provisions of the Act.

In matter No 40386/08, the Court granted leave to appeal and dismissed the appeal, with no order as to costs. In matter No 40283/09, the Court granted leave to appeal, directed the appellants to amend their notice of appeal, dismissed the appeal, and ordered the appellants to pay the respondent’s costs of the proceeding in the Court.