Lee v New South Wales Crime Commission

The applicants, Lee and others, sought leave to appeal to the Court of Appeal of New South Wales against an order made by a judge of the Common Law Division. The dispute concerned an application to vary a restraining order made under the *Criminal Assets Recovery Act 1990* (NSW) to allow for legal expenses related to sentencing proceedings. The applicants had previously given an undertaking to the New South Wales Crime Commission not to make any further applications for legal expenses "with respect of the trial of drug charges".

The primary legal issues before the Court of Appeal were whether the applicants' undertaking precluded them from applying to vary the restraining order for legal expenses in sentencing proceedings, and whether sentencing proceedings could be considered "with respect of the trial of drug charges" for the purposes of the undertaking. The court was also required to consider the principles applicable to the construction of such undertakings and consent orders.

The Court of Appeal held that the phrase "with respect of the trial of drug charges" in the undertaking referred to the trial itself and did not extend to subsequent sentencing proceedings. The court reasoned that a narrow construction of the undertaking was appropriate, particularly given the context of restraining orders and the need for individuals to meet legal expenses. The court found that the primary judge had erred in construing the undertaking too broadly, thereby preventing the applicants from seeking necessary legal representation for their sentencing.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and ordered the respondent to pay the appellants' costs of the application for leave to appeal and the appeal. The proceedings were remitted to the primary judge or another judge of the Common Law Division for determination in accordance with the Court of Appeal's reasons, with the costs of the motion in the court below to be at the discretion of the judge who ultimately determined that motion.