NSW Crime Commission v Lee

The NSW Crime Commission sought to enforce a freezing order against a defendant in order to confiscate the proceeds of crime. The defendant, Lee, was served with a notice of an application for a restraining or freezing order. However, the Commission did not provide the defendant with the documents relied upon in the application, instead requesting the defendant's solicitor to produce the documents. Lee argued that the order should not have been made without notice, and that the Commission had obtained an illegitimate forensic advantage by not providing the documents. The court was required to determine whether the order should have been made without notice, and whether the Commission's actions amounted to an illegitimate forensic advantage.

The court found that the order should not have been made without notice, as the defendant was entitled to be heard before such an order was made. However, the court found that the Commission's actions did not amount to an illegitimate forensic advantage, as the redacted documents provided to the defendant were sufficient to enable the defendant to respond to the application. The court found that the defendant had not been deprived of a fair opportunity to respond to the application, and that the Commission's actions did not amount to an abuse of process.

The court ordered that the restraining or freezing order be set aside, and that the Commission pay the defendant's costs of the application. The court also ordered that the Commission provide the defendant with the redacted documents relied upon in the application, in order to enable the defendant to respond to the application. The court emphasised the importance of ensuring that orders are made fairly and without abuse of process, and that parties are given a fair opportunity to respond to applications for such orders.