New South Wales Crime Commission v Bonaccorso

[2010] NSWSC 876

Reported Decision: 203 A Crim R 109

New South Wales

Supreme Court

CITATION:	New South Wales Crime Commission v Bonaccorso [2010] NSWSC 876
HEARING DATE(S):	28 July 2010
JUDGMENT DATE :	12 August 2010
JURISDICTION:	COMMON LAW
JUDGMENT OF:	Davies J
DECISION:	(1) The examination of the Applicant is stayed until the determination of the Court of Appeal in the appeal brought by the Defendant. (2) I order the Applicant to pay the costs of the Motion. (3) I order the Applicant to pay the costs of the Plaintiff thrown away by reason of the examination of the Applicant not proceeding on 29 July 2010 on an indemnity basis.
CATCHWORDS:	CRIMINAL LAW - procedure - confiscation of proceeds of crime - restraining or freezing orders - ancillary order for attendance by third party for examination - Notice of Motion seeking examination not served on third party - whether obligation to serve - whether examination order should be set aside for failure to serve - standing of third party to apply for discharge of examination order - related criminal charges against both Defendant and third party - whether examination should be stayed.
LEGISLATION CITED:	Civil Procedure Act 2005 Crimes Act 1900 Crimes Act 1914 (Cth) Criminal Assets Recovery Act 1990 Criminal Code Act 1995 (Cth) Income Tax Assessment Act 1936 (Cth) Judiciary Act 1983 (Cth) Taxation Administration Act 1953 (Cth) Uniform Civil Procedure Rules
CATEGORY:	Procedural and other rulings
CASES CITED:	Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Commissioner of Police v Tanos (1958) 98 CLR 383 Hardie Rubber Co Pty Limited v General Tire & Rubber Co (1973) 129 CLR 521 International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49 Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 Oshlack v Richmond River Council (1998) 193 CLR Pickles v Gratzon (2002) 55 NSWLR 533 SS Kalibia v Wilson (1910) 11 CLR 689
PARTIES:	Robert Francis Agius (Applicant) New South Wales Crime Commission (Respondent/Plaintiff) Garry Bonaccorso (First Defendant)
FILE NUMBER(S):	SC 2009/297130
COUNSEL:	G J Jones & R Steward (Applicant) I Temby QC (Respondent/Plaintiff) J Hyde Page (First Defendant)
SOLICITORS:	Atanaskovic Hartnell (Applicant) J M Giorgiutti (Respondent/Plaintiff) SBN Lawyers (First Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

12 AUGUST 2010

2009/297130 NSW CRIME COMMISSION V BONACCORSO

JUDGMENT

1 On 28 July 2010 Robert Francis Agius made application by Notice of Motion dated 27 July 2010 to set aside an order made by Barr AJ on 28 April 2010 providing for the examination of Mr Agius under s 31B Criminal Assets Recovery Act 1990 (NSW) (the “Act”). As the examination had been fixed for 29 July 2010, the Motion was heard as a matter or urgency in the Duty Judge’s list.

2 At the conclusion of the hearing, at which date the Crime Commission (the Plaintiff) and Mr Bonaccorso (the Defendant) were represented, I said that I intended to stay the examination of Mr Agius (the details of which I will provide presently) on the basis that Mr Agius pay the Commission’s costs of the Motion and the Commission’s costs on an indemnity basis thrown away by reason of the examination being stayed.

3 Because of the time the matter concluded, I indicated that I would provide my reasons at a later date. These are the reasons for the orders I made.

The Crimes Commission’s Application

4 By Summons filed 2 December 2009 the Crime Commission sought an order against the Defendant pursuant to s 27 of the Criminal Assets Recovery Act 1990.

5 On 23 February 2010 the Commission applied by Notice of Motion in those proceedings for these orders:

1. Pursuant to section 31D of the Criminal Assets Recovery Act 1990 (NSW), Robert Francis Agius be examined on oath before a Registrar of the Court concerning the affairs of Garry Bonaccorso, including the nature and location of any property in which he has an interest.

2. The Plaintiff have leave to obtain from the Registry dates for the examination sought in prayer 1 above.

3. Until further order, there shall be no publication of the evidence given by Robert Francis Agius at his examination except to members of staff of the Plaintiff, Garry Bonaccorso and the legal representatives of the affected parties.

It is accepted that the Notice of Motion was not served on Mr Agius.

6 On 28 April 2010 Barr AJ, having considered the Summons, the Notice of Motion and a Notice of Motion by the Defendant seeking a stay of the proceedings, delivered judgment and made orders including orders in terms of paragraphs 1, 2 and 3 of the Commission’s Notice of Motion.

7 The date of the hearing of the examination of 29 July 2010 was ultimately obtained.

8 I was informed, although there was no evidence suggesting how it came about, that Mr Agius became aware of the Summons and the date of the examination on 6 July 2010.

9 No adequate explanation has been offered why there was a delay from 6 July to 27 July 2010 in making the present application, although there was some suggestion made that Mr Agius had changed his legal representatives during the period. The affidavit from his present solicitor, Michael Sophocles from Atanaskovic Hartnell, states only that at approximately 11:00am on 27 July 2010, he was asked by Mr Agius to act for him in relation to the examination order.

The present Notice of Motion

10 Prayer 2 in the present Notice of Motion seeks these orders:

1. This notice of motion be made returnable at 9.00 a.m. on 28 July 2010.
2. Pursuant to Rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW), and the inherent jurisdiction of the Court, an order setting aside the following order made herein by Barr AJ on 28 April 2010:
“pursuant to section 31D of the Criminal Assets Recovery Act 1990 (NSW), Robert Francis Agius be examined on oath before a Registrar of the Court concerning the affairs of Garry Bonaccorso, including the nature and location of any property in which he has an interest.”
3. The costs of this notice of motion be paid by the plaintiff.
4. Such further or other orders as the nature of the case may require.

11 The principal submission by Mr Agius was that he was entitled to be served with the Notice of Motion. Because he was not served he claims he is entitled to have the orders made by Barr AJ set aside. In that regard, Mr Agius points to r 18.2 UCPR, which he said required service on him, and r 36.16 UCPR, which allows the orders to be set aside.

12 Rule 18.2 (Requirement for notice) provides:

(1) A person may not move the court to make any order unless notice of motion has been filed and served on each person affected by the proposed order.

(2) Despite subrule (1), a person may move the court to make an order without notice of motion having been filed or served on a person if:

(a) that person consents to the making of the order, or

(b) the preparation, filing or service of the notice would cause undue delay or other prejudice to the person by whom the order is sought, or

(c) the court dispenses with the requirement for such notice to be filed or served, or

(d) under these rules or the practice of the court, the motion may be made without the prior filing or service (as the case may be) of notice of motion.

13 Rule 36.16 (Further power to set aside or vary judgment or order) provides:

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2) The court may set aside or vary a judgment or order after it has been entered if:

(a) it is a default judgment (other than a default judgment given in open court), or

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:

(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

14 Mr Agius points to the provision s 31D(2) of the Act where notice is required to be given to an affected person (as defined) where an application is made for an order under that section. Mr Agius concedes that the section and the Act are silent as to the issue of service on another person in his position.

15 Nevertheless, and in addition to reliance on r 18.1, Mr Agius draws attention to remarks made in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49. First, he draws attention to what French CJ said at [56]:

In my opinion the power conferred on the Commission to choose, in effect, whether to require the Supreme Court of New South Wales to hear and determine an application for a restraining order without notice to the party affected is incompatible with the judicial function of that Court. It deprives the Court of the power to determine whether procedural fairness, judged by reference to practical considerations of the kind usually relevant to applications for interlocutory freezing orders, requires that notice be given to the party affected before an order is made. It deprives the Court of an essential incident of the judicial function. In that way, directing the court as to the manner of the exercise of its jurisdiction, it distorts the institutional integrity of the Court and affects its capacity as a repository of federal jurisdiction.

16 Similarly, he drew attention to what Heydon J said at [151]:

…. Illustrations of the aversion of Australian judicial process to ex parte relief of a substantive kind could be multiplied extensively, but a final illustration is Commissioner of Police v Tanos [(1958) 98 CLR 383]. In that case Dixon CJ and Webb J said: “[I]t is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard.” Their Honours then said of this “general principle” that it was “hardly necessary to add that its application to proceedings in the established courts is a matter of course.” That case concerned s 3(1)(b) of the Disorderly Houses Act 1943 (NSW), which provided that the Supreme Court of New South Wales “may declare” premises to be a disorderly house on the affidavit of a police officer claiming reasonable grounds for suspecting one or more of various conditions. The Disorderly Houses Regulations, reg 1, gave the court power to make the declaration “immediately and ex parte” if this seemed “necessary or desirable” or on notice and inter partes if the court thought an opportunity should be given to the owner or occupier to oppose the making of the declaration. Their Honours thought that on its true construction the regulation meant that prima facie the second course should be followed, and that the former course should be followed “only in exceptional or special cases” — where there was “some special hazard or cause of urgency”. The case affords an instructive contrast with the present, for no such judicial discretion is available here. (footnotes omitted)

17 Two things are to be noted about those passages. First, the opinions expressed in them were made when commenting on the Act before its amendments in December 2009, which provided for a review of orders already made, and added the provision contained in s 10A(4) that enabled the court to give notice to an affected person before the application is heard (in contradistinction to the earlier form of the legislation).

18 Secondly, it is clear that the concern in those passages was directed to the making of ex parte orders that had a substantive effect, such as restraining the use of property. In the passage relied on by Heydon J, so much is apparent from the citation from Commissioner of Police v Tanos at 395 where the concern was for persons being punished or prejudiced in their person or property. The concern there expressed is for a person in the position of the Defendant in the present case.

19 Mr Agius also drew attention to the passages in the dissenting judgment of Hayne, Crennan and Kiefel JJ at [124]–[130]. The judgment in those paragraphs is as follows:

[124] It was on this understanding of the operation of the CAR Act that the appellants submitted that their property rights could be, and in this case had been, substantially curtailed in proceedings in which they had not been and could not be heard. The construction of the CAR Act which was the premise for this submission should not be adopted. The decision of the Court of Appeal in New South Wales Crime Commission v Ollis should be overruled.

[125] If the CAR Act did not expressly provide, as it does in s 10(2), that the Commission may apply ex parte for a restraining order, it may have been arguable that a person affected by such an order was entitled, as of right, to the setting aside of any such order made without notice to that party. Section 10(2) puts beyond doubt that the argument just described is not available. But s 10(2) does not provide that the Supreme Court may make a restraining order only upon hearing the Commission in support of the application and without permitting any party affected to oppose the making of the order. Although the Commission may seek a restraining order without notice to any other person, s 11(2)(b) recognises, as already noted, that the Commission may give notice of its application to others, including a person or persons who may be thought to have an interest in the property that is to be restrained.

[126] It by no means follows that, because an application for a restraining order may be made ex parte, an order so obtained, unlike any other order made ex parte by the Supreme Court, cannot be reconsidered inter partes on the application of a person affected. That reconsideration can be undertaken by the judge who made the order, or by another judge. The grounds for reconsideration include, but are not limited to, an allegation that the Commission did not make full and frank disclosure of all matters bearing upon whether the order sought should be made. The material that may be examined on application for reconsideration of the order is not confined to the material that the Commission placed before the court in support of its ex parte application. Nothing in the CAR Act expressly excludes the applicability of these propositions. The CAR Act should not be read as impliedly denying their applicability.

[127] It is necessary to make good the propositions just stated. Each is founded on the general proposition that the relevant provisions of the CAR Act take the Supreme Court as they find it. More particularly, because statutory construction is more than an exercise in literal comprehension, the relevant provisions of the CAR Act must be read in the setting provided by the common law system of adversarial trial administered in Australian courts and the processes ordinarily followed by the Supreme Court. As the whole court said, more than 50 years ago, in Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) , it is well established that when legislation refers a particular matter for hearing and determination to an existing court established as part of the judicial system of the State,

unless and except in so far as the contrary intention appears … it is to the court as such that the matter is referred exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected.

As the court went on to say:

It may be remarked that the rule or principle invoked is but an expression of the natural understanding of a provision entrusting the decision of a specific matter or matters to an existing court. It is no artificial presumption. When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality.

[128] Neither s 10(2), providing for a restraining order to be sought ex parte, nor the provisions of s 12, enabling the making of various forms of orders ancillary to the making of a restraining order, shows that the Act should be read as inferentially excluding application by the party affected by a restraining order , after the order has been made, to contest whether it should have been made or should continue and to adduce evidence in support of that party’s case. Indeed, absent express and clear indication of that intention (“reasonably plain intendment”), the CAR Act should not be construed as working such a fundamental alteration to civil procedure as would be required to conclude that an order made ex parte should not be open to subsequent review and reconsideration on the application of a party adversely affected by it. An intention to effect such a change is not “to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations”. And neither the provision for making application ex parte nor any other feature of the Act engaged principles of the kind discussed in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia and, more recently, Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom .

[129] As a general rule, since the late 19th century, a court or judge has had no power to review, rehear, vary or set aside any judgment after it has been passed and entered, or any order after it has been drawn up. That is, as a general rule, a judgment or order, once formally recorded, can be discharged or varied only on appeal. It is not necessary to stay to consider the recalling of an order that has been pronounced but not formally recorded, or the particular position of the orders of this court as the court of final resort.

[130] The general rule that a judgment or order that has been formally recorded cannot be reconsidered except by processes of appeal has long been recognised to be subject to some qualifications. In particular, it is a rule that does not apply to an order made ex parte. As Griffith CJ rightly said, in Owners of SS Kalibia v Wilson :

when a judicial order has been obtained ex parte the party affected by it may apply for its discharge. This is an elementary rule of justice, of the application of which familiar instances are afforded by writs of ca re and ex parte injunctions.

And it is, therefore, unsurprising that rules of court, including the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”), provide expressly for applications of that kind in cases where a judgment or order given or made in the absence of a party has been entered. But as the UCPR also recognise, the power of the Supreme Court of New South Wales to set aside judgments or orders made ex parte is not derived only from the Rules; it is a power necessarily implied as a part of the power of the court to proceed ex parte. That is, as Griffith CJ put the point, it is “an elementary rule of justice”. (footnotes omitted – emphasis added)

20 What is said there does not appear to provide any support for the position of Mr Agius. It was in those paragraphs that the minority took the view that the arrangements in the Supreme Court in terms of its practices and processes were sufficient to afford the necessary protection to a Defendant in an application under s 10 of the Act in its unamended form. Hence, the minority did not think that the provisions of the Act were unconstitutional under what Heydon J referred to as “the Kable Doctrine”.

21 Moreover, the discussion concerned a person affected by an ex parte restraining order including a person who had an interest in the property – see the highlighted passages. Nothing in those paragraphs suggests that the judges had in mind persons other than persons whose property was affected by the ex parte order.

22 Mr Agius also drew attention to what the Court of Appeal said in Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 at 7 and 13-14. These passages in turn made reference to Tanos which was discussed by Heydon J in International Finance Trust and which I have discussed above (paras 17 and 18).

23 There is a number of matters which indicates that there was no obligation upon the Crime Commission to give notice to Mr Agius before obtaining the order from Barr AJ for his examination. First, s 31D(2) of the Act only requires notice to an affected person, although the section makes a clear distinction between such a person and any other person. It must be inferred that the Legislature did not intend that another person must be given notice.

24 Secondly, no order affecting Mr Agius’s property or his person is being made other than a requirement that he attend to be examined. That puts him in no different position from a witness who receives a subpoena to give evidence or a person who is required to attend for an examination by a liquidator concerning the affairs of the company in liquidation. Outside the jurisdiction of this Court, Mr Agius is in no different position from a person required to attend for examination by a trustee in bankruptcy concerning the affairs of a bankrupt. It cannot seriously be suggested that a person in any of those positions is entitled to be given notice prior to the time when the subpoena or examination summons is served upon the person. He or she may have a right to reply to set aside the subpoena or the summons but no right in advance to preventing its issue and service.

25 Thirdly, even if reliance is placed on the minority judgment in International Finance Trust, the rules and practices of the Court allow for non-service of process in certain situations. The right not to serve is expressly provided for in r 18.1(d) UCPR if the established procedure is other than service being required. This is a matter somewhat connected with the previous reason, but the matter extends beyond that. For example, after proceedings have been commenced between parties, a proposed cross-defendant (being a third party) is not ordinarily given notice that a cross-claim may or will be brought to enable that proposed party to argue that no such cross-claim should issue. One reason at least for that is that the proposed party will at all times have available to them the provisions of Part 13 and Part 14 of the UCPR which enable the party to move to strike-out the pleading on the grounds set out in those rules.

26 The provisions contained in the amendments to the Act made in December 2009 give express right to persons against whom ex parte orders have been made to move to review those orders. However, the right is confined to a “person whose interest in property is affected by a restraining order” (s 10C(1)). This is a further indication, particularly when considered with s 31D(2), that a person in the position of Mr Agius is not entitled to notice of an application for an order that he attend to be examined.

27 In my opinion there was no obligation to give notice to Mr Agius of the application for an examination order. The absence of notice, without anything more, provides no basis to set aside the orders of Barr AJ.

28 It must next be considered whether Mr Agius has standing to apply to vary or discharge the order of Barr AJ for any other reason.

29 The general power of the Court to order a person to attend for examination (s 108 Civil Procedure Act 2005) does not provide any means for a person so ordered to set aside the order. As noted above, a person served with a subpoena is entitled to apply to set it aside under r 33.4 UCPR. Similarly r 36.16 enables the Court to set aside or vary an order, even after it has been entered, if it has been made in the absence of a party. Mr Agius is probably not a party within the meaning of the Rules: Pickles v Gratzon (2002) 55 NSWLR 533 at [37].

30 I noted above that the provision entitling a review of orders (s 10C) is confined to persons whose interest in property is affected by the order. Mr Agius is not such a person.

31 Nevertheless, in a similar situation to the present Gibbs J, in Hardie Rubber Co Pty Limited v General Tire & Rubber Co (1973) 129 CLR 521 at 527, noted with apparent approval that:

It is not disputed that since the order in that case was obtained ex parte the applicant is entitled to apply for its discharge or variation.


See also SS Kalibia v Wilson (1910) 11 CLR 689 at 694 per Griffiths CJ. In my opinion there is an inherent power in the Court to permit a person affected by an ex parte order to apply to set it aside or vary it. Mr Agius is such a person. He has standing to make an application to set aside or vary the order made against him.

32 Mr Agius submitted that because an examination under s 31D of the Act requires him to take an oath or affirmation and to answer questions of a broad and far-reaching nature from the Crime Commission, and because Mr Agius is facing criminal charges himself brought by the Crime Commission, it is not appropriate that he be examined because of the risk of self-incrimination concerning criminal charges he is facing. Accordingly, he submits, it is appropriate to set aside the orders made by Barr AJ as they affect him.

33 It appears from a notice pursuant to s 78B of the Judiciary Act 1983 (Cth) that the Defendant was a party to the proceedings in International Finance Trust and, as a result of the High Court’s decision, had the proceedings against him dismissed. The proceedings, which resulted in the orders of Barr AJ, are the first proceedings brought by the Crime Commission against the Defendant. The Defendant is charged under s 178BA Crimes Act 1900 that he dishonestly obtained financial advantage by deception in dishonestly engaging in activities to avoid the payment of tax.

34 It appears from the investigation report, which was before Barr AJ, that International Finance Trust Company Limited and IFTC Broking Services Limited were companies owned and used by a firm of chartered accountants in Vanuatu called PKF Vanuatu that advised clients about the benefits of Vanuatu as a tax haven country. It seems that the Defendant paid money to IFTC that formed the basis of the charges brought against him.

35 Mr Agius was a partner in PKF Vanuatu, as well as being a Director of the two companies. He was charged with the offences of conspiracy to defraud contrary to sections 86(2) with 29D of the Crimes Act 1914 (Cth), conspiracy to defraud contrary to s 135.4(3) of the Criminal Code Act 1995 (Cth) and money laundering contrary to sections 11.5(1) with s 400.3(1) of the Criminal Code Act 1995 (Cth). Nevertheless, the precise connection between the charges preferred against the Defendant and the charges preferred against Mr Agius was not made clear.

36 Bearing in mind the protections accorded under the Act against self-incrimination (ss 13A and 31D(3)), and the absence of clear evidence linking Mr Agius’s examination with his criminal charges, I am not persuaded that it is appropriate for this reason either to set aside Barr AJ’s orders or to stay the examination until the conclusion of the criminal charges against Mr Agius have been heard. There is no indication when those criminal charges might be heard. Mr Agius is not in custody and that makes it likely that a trial date will be further away than would otherwise have been the case.

37 Mr Agius further submitted that it is not appropriate that he be examined at the present time because the Defendant has applied to the Court of Appeal for leave to appeal the decision of Barr AJ, .and in that regard, the examination ordered by Barr AJ of the Defendant has itself been stayed. The appeal to the Court of Appeal involves questions whether Part 3, Division 2 of the Act, and in particular sections 27 and 28, are invalid to the extent that those provisions cover the case of alleged intentional non-payment of tax pursuant to the Income Tax Assessment Act 1936 (Cth) inconsistent with Part IV Taxation Administration Act 1953 (Cth) and contrary to s 109 of the Constitution.

38 The Crime Commission submitted that the appeal itself does not operate as a stay on the orders of Barr AJ (so much can be accepted) so that appeal should not provide any reason for the examination of Mr Agius not going ahead as planned. That is because, it is said, there is a usefulness in obtaining the information from Mr Agius that may be elicited at the examination.

39 It seems to me, however, that if the whole basis of the orders made by Barr AJ is being challenged and, bearing in mind that the order for an examination of Mr Agius was ancillary only to the application against the Defendant, it would not be appropriate for Mr Agius to be examined until the Court of Appeal determines if Barr AJ ought to have made the orders he did. That view is strengthened by the fact that the Defendant’s examination has been stayed, whether by consent or by contested order. Since Mr Agius’s examination is ancillary only to that, the appeal and the stay of the Defendant’s examination points against the examination of Mr Agius going ahead. It does not, on the other hand, point to an order setting aside Barr AJ’s order in relation to Mr Agius. That is something which will either be determined on the appeal or will stand or fall depending on the outcome of the appeal. It is appropriate, however, to stay his examination until the Court of Appeal has delivered its judgment on that appeal.

40 As I indicated earlier, there has been no real explanation about the delay in making this application in circumstances where Mr Agius became aware of the examination by no later than 6 July 2010. For that reason, and because he is seeking an indulgence of the Court, it is appropriate that he pay the costs of this application.

41 Further, because the application was left to the last minute, the Crime Commission had made all necessary arrangements for the examination to take place on 29 July 2010. It is appropriate in those circumstances to require Mr Agius to compensate the Crime Commission for all of its wasted costs in that regard. His delinquency justifying an order for indemnity costs (Oshlack v Richmond River Council (1998) 193 CLR 72 at [44]; Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353) can be found in applying to stay the examination the day before it was due to take place, and in addition, providing no explanation for that delay.

42 It was for these reasons that I made these orders on 28 July 2010:

(1) The examination of the Applicant is stayed until the determination of the Court of Appeal in the appeal brought by the Defendant.

(2) I order the Applicant to pay the costs of the Motion.

(3) I order the Applicant to pay the costs of the Plaintiff thrown away by

reason of the examination of the Applicant not proceeding on 29 July 2010 on an indemnity basis.

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