Restraining Order
A restraining order is an order that no person is to dispose of (or attempt to dispose of), the property specified in the order, except in such manner as is specified in the restraining order.
When can a Restraining Order be Made?
If a person is suspected of having engaged in a serious criminal activity, an application may be made to the Supreme Court of NSW, for a restraining order in relation to property that is suspected to have resulted from a serious criminal activity.
The Supreme Court must make a restraining order if the application for the order is supported by an affidavit stating the grounds for the applicant’s belief that either:
- The person whose interest is the subject of the application has engaged in a serious criminal activity; or
- The person whose interest is the subject of the application has acquired property because of any serious criminal activity of the person or another person; or
- The property is believed to have been acquired because of a serious criminal activity.
Contravention of a restraining order is a criminal offence if the person had notice that the property was subject to the restraining order. The offence is punishable by a fine equivalent to the value of the interest in the property and/or by imprisonment for up to 2 years.
Restraining Order: What Orders may be Made?
The Supreme Court may make one or more of the following orders:
- That no person is to dispose or otherwise deal with the property except in such manner as the court specifies.
- That the property or interest in the property be transferred to the Public Trustee.
- That a person be examined under oath concerning the nature and location of certain property.
A person being examined under oath is not excused from answering any question, or from producing any document, on the ground that the answer or production might incriminate the person or make the person liable to forfeiture or penalty. However, answers given or documents produced may not be admissible in any future criminal proceedings.
If you have been given written notice of a restraining order and you are required to be examined under oath it is essential that you seek legal advice immediately, attend the hearing and give evidence. Failure to do so may result in orders being made in your absence.
What Happens if a Restraining Order is Made?
Once a restraining order has been made, written notice of the order must be given to any person whose interests are affected by the order.
A person against whom a restraining order is made may file an application for an exclusion order, which may exclude some or all of the property from the order. The applicant must prove on the balance of probabilities that the property in question was not illegally or fraudulently obtained.
Can A Restraining Order Be Set Aside?
An appeal can be lodged in the Supreme Court against the making of a restraining order by any person who has an interest in the property. An appeal must be lodged within 28 days of the making of the restraining order.
In order to set aside the restraining order, the court must be satisfied either that:
- The NSW Crime Commission has failed to satisfy the court that there are reasonable grounds for believing the person whose property is the subject of the application has engaged in a serious criminal activity; or
- The applicant has established the restraining order was obtained illegally or against good faith.
A person who lodges an appeal against a restraining order is also entitled to adduce evidence in support of their application.
Payment of Legal Costs
In some circumstances, a restraining order may provide for paying for a person’s reasonable legal costs. However, the Supreme Court must be satisfied that the person is unable to pay their legal costs out of their unrestrained property.