FEDERAL COURT OF AUSTRALIA
Vescio v Honourable Kristina Keneally [2008] FCA 589
PRACTICE AND PROCEDURE – Federal Court of Australia Act1976 (Cth) s 24(1A) – application for leave to appeal against an interlocutory decision – decision of primary judge clearly correct – application refused – Judiciary Act1903 (Cth) – s 78B notices – no “live issue” arising under the Constitution
Crimes Act1914 (Cth) s 43(1)
Federal Court of Australia Act1976 (Cth) s 24(1A)
Judiciary Act1903 (Cth) ss 39B(1A)(c), 78BAmrit Lal Narain v Parnell (1986) 9 FCR 479 followed
Commonwealth of Australia v Lyon [2003] FCAFC 284 followed
Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918 followed
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed
Mentyn v Westpac Banking Corporation [2004] FCAFC 149 followed
Vescio v Honourable John Hatzistergos (NSW Attorney General) [2008] FCA 332 citedCARMELO MICHAEL VESCIO v HON. KRISTINA KENEALLY (MINISTER FOR AGEING) AND ORS
NSD 510 OF 2008
FLICK J
1 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 510 OF 2008
BETWEEN:
CARMELO MICHAEL VESCIO
ApplicantAND:
HON. KRISTINA KENEALLY (MINISTER FOR AGEING)
First RespondentHON. JOHN HATZISTERGOS (ATTORNEY GENERAL)
Second RespondentANGELA D’AMORE (STATE MEMBER FOR DRUMMOYNE)
Third RespondentDIANE ROBINSON (PRESIDENT OF THE GUARDIANSHIP TRIBUNAL)
Fourth RespondentKEN GABB (THE PROTECTIVE COMMISSIONER)
Fifth RespondentCATHERINE LAY (PUBLIC GUARDIAN)
Sixth RespondentAMANDA MCDONOUGH (PUBLIC GUARDIAN REGIONAL OFFICER)
Seventh Respondent
JUDGE:
FLICK J
DATE OF ORDER:
1 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal, as contained in the Notice of Motion filed on 14 April 2008, be refused.
2.The Applicant to pay the costs of the Respondents of and incidental to the hearing of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 510 OF 2008
BETWEEN:
CARMELO MICHAEL VESCIO
ApplicantAND:
HON. KRISTINA KENEALLY (MINISTER FOR AGEING)
First RespondentHON. JOHN HATZISTERGOS (ATTORNEY GENERAL)
Second RespondentANGELA D’AMORE (STATE MEMBER FOR DRUMMOYNE)
Third RespondentDIANE ROBINSON (PRESIDENT OF THE GUARDIANSHIP TRIBUNAL)
Fourth RespondentKEN GABB (THE PROTECTIVE COMMISSIONER)
Fifth RespondentCATHERINE LAY (PUBLIC GUARDIAN)
Sixth RespondentAMANDA MCDONOUGH (PUBLIC GUARDIAN REGIONAL OFFICER)
Seventh Respondent
JUDGE:
FLICK J
DATE:
1 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 13 March 2008 a judge of this Court dismissed proceedings commenced by the present Applicant: Vescio v Honourable John Hatzistergos (NSW Attorney General) [2008] FCA 332.
Those proceedings were commenced by the present Applicant as “Prosecutor”. The “Defendants” included members of the Parliament of New South Wales, the President of the New South Wales Guardianship Tribunal, the Protective Commissioner, the New South Wales Public Guardian and the Public Guardian Regional Officer.
The “Prosecutor” alleged that acts by some or all of the “Defendants” perverted the course…
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- Case
- [2008] FCA 589
- Decision Date
CaseChat Overview and Summary
The court considered whether the search warrant met the legal standards set by the Act, specifically focusing on whether it was properly executed and whether the items seized were justified. The court reviewed the contents of the warrant, the evidence presented to support the warrant, and the circumstances under which the search was conducted. The primary consideration was whether there was a reasonable suspicion that the premises contained evidence relevant to the investigation. The court also examined whether the warrant was appropriately tailored to the specific circumstances and whether the officers conducting the search adhered to the legal requirements.
In its decision, the court found that the search warrant was lawful and the search was conducted in accordance with the legal standards set by the Act. The court determined that the warrant was supported by sufficient evidence to justify the suspicion that illegal activities were occurring on the premises. Additionally, the court found that the items seized were directly related to the investigation into organised crime, thus fulfilling the legal criteria for a valid search. Consequently, the application for leave to appeal was refused, and Vescio was ordered to pay the costs of the Respondents.
Orders
Orders of the court
1. The application for leave to appeal, as contained in the Notice of Motion filed on 14 April 2008, be refused.
2. The Applicant to pay the costs of the Respondents of and incidental to the hearing of the application.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: FLICK J
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