Woodcroft & Ors v Director of Public Prosecutions

(2000) 174 ALR 60; [2000] NSWCA 128

NSW Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Proceeds of crime
3. › Restraining orders
4. › Property of person other than defendant
5. › Whether order varying existing restraining order to include third party's property was ancillary order under s 48(1)
6. › Whether requirements of s 44(7A) had to be met
7. › Whether consent could cure non-compliance
8. › Proceeds of Crime Act 1987 (Cth), ss 43, 44(7A), 45A, 48(1)
1. Criminal Law
2. › Proceeds of crime
3. › Forfeiture
4. › Extension of waiting period
5. › Whether order extending waiting period under s 30A dependent on valid restraining order
6. › Whether setting aside restraining order avoided it ab initio
7. › Proceeds of Crime Act 1987 (Cth), ss 30, 30A
1. Practice and Procedure
2. › Judgments and orders
3. › Setting aside orders of superior court
4. › Order made without power
5. › Whether fundamental miscarriage or mere irregularity
6. › Whether party entitled ex debito justitiae to have order set aside
1. Appeal
2. › Leave to appeal
3. › Interlocutory orders
4. › Extension of time
5. › Whether consent to order precludes challenge on appeal
6. › Supreme Court Act 1970 (NSW), s 101(2)(e)

Quick Take

An order purporting to vary a restraining order under s 48(1) of the Proceeds of Crime Act 1987 (Cth) to include specified property of a third party is not an ancillary order within s 48(1) but is in substance a new restraining order requiring compliance with s 44(7A). Consent to such an order does not cure the failure to comply with s 44(7A), as consent admits only the facts necessary for the order actually sought. Setting aside a restraining order for non-compliance with s 44(7A) avoids the order ab initio, with the consequence that any order extending the waiting period under s 30A also falls.