On 11 May 2018, Button J delivered the decision in the Commissioner of the Australian Federal Police v Steffan Treptower [2018] NSWSC 677.
The Commissioner of the Australian Federal Police (Commissioner) had made an ex parte application for an examination order under s.180 of the Proceeds of Crime Act 2002.
Button J determined that it was inappropriate to hear and determine an application for an examination order ex parte. Button J stated (at [15]):
In short, in my opinion this is not the kind of matter whereby things must be done ex parte, otherwise the whole purpose of the proceedings will be set at naught. To the contrary, I think that this is the kind of matter that cries out for hearing from the other side.
This is not the first time that the Commissioner has failed to obtain an examination order on an ex parte basis. Riordan J refused such an application in Re Application by the Commissioner of the Australian Federal Police [2015] VSC 774 and stated that (at [11(f)]):
Critically, the applicant was unable to point to any prejudice resulting from the adjournment of the application for the examination and ancillary orders pending notification to the respondents, other than the need to attend court on a further occasion. In my opinion, that is a totally insufficient reason to make an order without notification to the respondents.
In the circumstances, it is unlikely that the Commissioner will continue to seek examination orders on an ex parte basis, particularly having regard to the fact that the Commissioner would be obliged to draw these adverse decisions to the attention of any judicial member hearing such application.
