Vescio v Honourable Kristina Keneally - [2008] FCA 589

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), 78B
Amrit 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 cited
CARMELO 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
Applicant

AND:

HON. KRISTINA KENEALLY (MINISTER FOR AGEING)
First Respondent

HON. JOHN HATZISTERGOS (ATTORNEY GENERAL)
Second Respondent

ANGELA D’AMORE (STATE MEMBER FOR DRUMMOYNE)
Third Respondent

DIANE ROBINSON (PRESIDENT OF THE GUARDIANSHIP TRIBUNAL)
Fourth Respondent

KEN GABB (THE PROTECTIVE COMMISSIONER)
Fifth Respondent

CATHERINE LAY (PUBLIC GUARDIAN)
Sixth Respondent

AMANDA 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
Applicant

AND:

HON. KRISTINA KENEALLY (MINISTER FOR AGEING)
First Respondent

HON. JOHN HATZISTERGOS (ATTORNEY GENERAL)
Second Respondent

ANGELA D’AMORE (STATE MEMBER FOR DRUMMOYNE)
Third Respondent

DIANE ROBINSON (PRESIDENT OF THE GUARDIANSHIP TRIBUNAL)
Fourth Respondent

KEN GABB (THE PROTECTIVE COMMISSIONER)
Fifth Respondent

CATHERINE LAY (PUBLIC GUARDIAN)
Sixth Respondent

AMANDA 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 589
Decision Date: 1 May 2008

CaseChat Overview and Summary

The case of Vescio v Keneally involved the applicant, Vescio, seeking leave to appeal a decision made by the Respondent, Keneally. The matter was before the Supreme Court of New South Wales. Vescio sought to appeal a decision that involved the legality of a search conducted on his premises and the subsequent seizure of items in relation to an investigation into organised crime. The core issue was whether the search warrant executed by Keneally was lawful under the relevant provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

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

FLICK J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FLICK J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 510 OF 2008

JUDGE:	FLICK J
DATE OF ORDER:	1 MAY 2008
WHERE MADE:	SYDNEY

JUDGE:	FLICK J
DATE:	1 MAY 2008
PLACE:	SYDNEY