Ex parte applications and the duty of candour
The Supreme Court of New South Wales dismissed an application brought against the Commissioner of the Australian Federal Police seeking to discharge an order made ex parte for the registration of a foreign restraining order.
The United States District Court for the District of Columbia made the foreign restraining order on 5 October 2023 covering real property in Australia. The Commissioner brought an ex parte application on 31 October 2023 to register the foreign restraining order pursuant to s 34A of the Mutual Assistance in Criminal Matters Act 1987 (Cth). The defendants applied on 21 November 2023 to discharge the ex parte order, on the basis that the registration order was based on evidence that was inaccurate.
On 6 December 2023, the Court dismissed the defendants’ application against the Commissioner, and concluded that the error relied upon did not satisfy the requirement of materiality, and was not deliberate or intentional. The Court considered the principles relevant to the duty of candour on ex parte applications, and the circumstances in which such orders may be discharged for non-compliance with the duty of candour.
The Court’s decision can be found here:
https://www.caselaw.nsw.gov.au/decision/18c3bf022eefe33feb626d2e
Media coverage of the matter can be found here:
https://www.abc.net.au/news/2023-12-06/nsw-daniel-duggan-marine-pilot-forfeiture-home/103194278
The Commissioner was successfully represented in the proceeding by Greg O’Mahoney and Daniel Habashy.
