Onley v Commissioner of the Australian Federal Police

The applicants, Onley and others, appealed to the Court of Appeal of New South Wales against orders made by the Supreme Court of New South Wales. The dispute concerned the validity of examination orders and property orders made under the *Proceeds of Crime Act 2002* (Cth) (POCA). The applicants were suspected of involvement in a conspiracy to defraud the Australian Taxation Office, and the Commissioner of the Australian Federal Police had obtained orders for their examination and for them to provide sworn statements regarding their interests in property.

The Court of Appeal was required to determine several legal issues. Firstly, it considered whether the Supreme Court had erred in making the examination orders under section 180 of POCA, particularly in light of extant criminal proceedings against the applicants and the potential for disclosure of information that could prejudice those proceedings. This involved assessing the application of section 319 of POCA and balancing the prejudice to the applicants against the potential prejudice to the Commissioner. Secondly, the Court considered whether the Supreme Court had erred in refusing to set aside the orders under Rule 36.16 of the *Uniform Civil Procedure Rules 2005* (NSW), including whether those rules could apply to a Commonwealth statutory scheme and the exercise of federal jurisdiction. Finally, the Court examined whether the property orders made under section 39 of POCA, requiring the applicants to provide sworn statements about their interests in property, could validly extend to include the interests of companies of which the applicants were directors.

The Court of Appeal reasoned that the Commissioner had established a sufficient case for the making of the examination orders under section 180 of POCA, and that the risk of prejudice to the applicants in their criminal proceedings was adequately addressed by a protocol put in place by the Australian Federal Police. The Court found that the prejudice to the applicants did not outweigh the Commissioner's legitimate interest in obtaining the information. Regarding the application of the Uniform Civil Procedure Rules, the Court held that the rules of the Supreme Court of New South Wales could apply to proceedings in that court, even where those proceedings involved the exercise of federal jurisdiction, provided they did not conflict with Commonwealth legislation. The Court also found that the property orders under section 39 of POCA were validly made and could extend to interests held by companies where the applicants were directors, as these interests were effectively controlled by the applicants.

Consequently, the Court of Appeal granted leave to appeal to each applicant but dismissed the appeals, ordering the applicants to pay the costs of the Commissioner.