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AB Pty Ltd v Australian Crime Commission

AB Pty Ltd v Australian Crime Commission

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FEDERAL COURT OF AUSTRALIA
A. B. Pty Limited v Australian Crime Commission [2009] FCA 119
ADMINISTRATIVE LAW – notice served by Australian Crime Commission – notice requires production of documents – need for documents to be “specified” – ambit of power conferred – reasonableness of time permitted for production
STATUTES – statutory duty to record reasons
Acts Interpretation Act1901 (Cth) s 25D
Administrative Decisions (Judicial Review) Act1977 (Cth) ss 5(1)(d), 5(1)(e), 11, Sch 2(ea)
Australian Crime Commission Act2002 (Cth) ss 7A, 22, 29, 29A, 57
Australian Securities and Investments Commission Act 2001 (Cth) ss 30–33
Bankruptcy Act 1966 (Cth) s 77C
Income Tax Assessment Act1936 (Cth) s 264
Trade Practices Act1974 (Cth) s 155
A v Boulton [2004] FCAFC 101, 136 FCR 420, cited
Adamson v Noall [1967] VR 105, cited
Barnes v Boulton [2004] FCA 1219, 139 FCR 356, cited
Australian Securities Commission v Lucas (1992) 36 FCR 165, cited
Butler v Board of Trade [1971] Ch 680, cited
CK Nominees Australia Pty Ltd v Official Receiver (WA) [2007] FCAFC 118, 160 FCR 524, cited
Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403, cited
Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252, cited
Elias v Pasmore [1934] 2 KB 164, cited
Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499, cited
Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187, cited
F H Faulding & Co Ltd v Commissioner of Taxation (1994) 54 FCR 75, cited
G H Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635, cited
Grant v Commissioner of Taxation [2000] FCA 1383, 104 FCR 1, cited
Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649, cited
The Integrated Financial Group Pty Ltd v Australian Securities and Investments Commission [2004] WASCA 213, 187 FLR 7, cited
Kennedy v Baker [2004] FCA 562, 135 FCR 520, cited
O’Reilly v the Commissioners of the State Bank of Victoria (1983) 153 CLR 1, cited
McCormack v Commissioner of Taxation [2001] FCA 1700, 114 FCR 574, cited
McVey v Commissioner of Pay-roll Tax (Vic) (1985) 85 ATC 4,131, cited
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, cited
Minosea Pty Ltd v Australian Securities Commission (1994) 35 ALD 493, cited
Norwest Holst Ltd v Secretary of State for Trade [1978] Ch 201, cited
Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, cited
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, cited
S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357, cited
Sixth Ravini Pty Ltd and Eighth Oupan Pty Ltd v Federal Commissioner of Taxation (1985) 6 FCR 356, cited
Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493, 97 ALD 652, cited

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: [2009] FCA 119
Decision Date: 19 February 2009

CaseChat Overview and Summary

AB Pty Ltd was the applicant in proceedings brought against the Australian Crime Commission. The applicants sought a review of decisions made under section 29 of the Australian Crime Commission Act 2002 (Cth) to issue notices requiring the production of documents. The applicants contended that the notices were issued unreasonably and without proper consideration of relevant factors. The applicants argued that the notices were too vague, that the time for compliance was unreasonable, and that the examiner failed to consider relevant considerations.

The court was required to determine whether the notices issued by the Australian Crime Commission were valid and lawful under the Australian Crime Commission Act 2002. The court considered whether the notices complied with the statutory requirements, particularly the need to record reasons for issuing the notices and to consider relevant factors. The court also examined whether the notices were issued in a manner that was oppressive or unfair.

The court found that the notices were issued in accordance with the statutory provisions and that there was no failure to consider relevant factors. The court noted that the reasons provided by the examiner were brief but sufficient, and that the notices were not oppressive or unfair. The court held that the applicants had not demonstrated any unreasonableness in the exercise of the power conferred by section 29 of the Act. The court dismissed the applications for judicial review and ordered the applicants to pay the costs of the respondents.

In summary, the court rejected the applicants' contentions that the notices were issued unreasonably and without proper consideration. The court found that the notices were valid and lawful under the Act, and that the applicants had not demonstrated any grounds for judicial review. The court dismissed the applications and ordered the applicants to pay the costs of the respondents.

Orders

Orders of the court

1. The time within which the Application for an Order of Review is to be filed is extended to 24 December 2008.

2. The Amended Application for an Order of Review as filed on 23 January 2009 is dismissed.

3. The Applicant is to pay the costs of the Respondents.

Note:

Background

Background to the litigation

Those records were each in substantially similar terms. The form of the record was a single document which set forth the “Material Facts” as follows:MATERIAL FACTSI had regard to the following material for the purposes of being satisfied under subsection 29 (1A) of the Australian Crime Commission Act 2002 (Cth) (the Act) that it was reasonable in all the circumstances to issue the notice:(a) A statement of facts and circumstances dated 3 December 2008(b) Legal submissions dated 3 December 2008The form of the record thereafter continued to set forth the Schedule of documents required to be produced and concluded:Based upon my consideration of the statement of facts and circumstances and the legal submissions which are referred to above :(1)I was satisfied that the investigation/operation was within the terms of the Determination and that the Determination was still operative.(2)I was satisfied that it was reasonable in all the circumstances that the Notice be issued to the party to whom it is directed.(3)I was satisfied that it was reasonable in all the circumstances that the Notice be issued in the terms approved by me.(4)I was satisfied that this was an appropriate Notice for the inclusion of a notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002 because if such a notation were not included it would reasonably be expected to prejudice the effectiveness of the operation or investigation and that a failure to do so might be contrary to the public interest.(5)I was satisfied that it was also appropriate that the notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002 be in the terms approved by me.A call was made for the production of the “statement of facts and circumstances” and for the “legal submissions” referred to. It was considered that those documents were not of immediate relevance to the arguments sought to be advanced by the Applicants and, had it been necessary to resolve the issue, a claim for public interest immunity would in all likelihood have prevailed. It was accepted by Counsel for the Commission that s 29(1A) is a provision to which s 25D of the Acts Interpretation Act1901 (Cth) applies. It may thus be seriously doubted whether the reasons as provided by the examiner in the present proceedings comply with the requirement to record the reasons for the decisions taken. Even if that potential deficiency is left to one side, the reasons as provided bear some of the hallmarks of a lack of attention being given by the examiner to the task being undertaken and some of the hallmarks of a standard form of reasons employed in such other instances upon which the examiner may have been called upon to exercise the power conferred by s 29. There is, for instance, not only the unacceptable brevity of the reasons provided but there is also a lack of attention as to whether the examiner was conducting a “special operation” or a “special investigation”. The notices record that a “special operation” was being undertaken — but the record of the reasons does not consider it appropriate to confine itself in a like manner. Those against whom the powers conferred by the 2002 Act are exercised are entitled to have confidence that the power is being lawfully invoked.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FLICK J

There is no unreasonableness as to the time for compliance for any of the notices. CONCLUSIONS The Australian Crime Commission Act2002 (Cth) confers functions and powers of fundamental importance upon the Commission. But it forever remains of importance that such powers as are conferred are exercised according to their terms and that Courts are vigilant to ensure that such powers are not exceeded. Perhaps to an ever greater extent than in other areas of legislative attention (eg Australian Securities Commission v Lucas (1992) 36 FCR 165 at 174), it is important to ensure that the purposes for which such powers as s 29 have been conferred are not frustrated by unmeritorious applications for judicial review. Although there are differences between each of the statutory provisions authorising a notice requiring the production of documents, s 29 of the present Act is to be construed as conferring upon an examiner “an effective, but not an oppressive, or unfair, power of investigation”. It is sufficient for present purposes to reject each of the arguments advanced on behalf of the Applicants. The exercises of the power conferred by s 29 are not vitiated by reason of either uncertainty in the terms with which each notice is expressed, any failure to consider a relevant consideration or by reason of any asserted unreasonableness as to the time within which production was required. The ambit of the power conferred by s 29, the many features peculiar to the present statutory context and the differences in terminology as between s 29 and other statutory provisions serve as reminders to construe s 29 according to its terms. So construed, in the present proceedings, each of the decisions taken have been authorised by its terms. The hearing of these proceedings took place on Tuesday 17 February 2009. The time for compliance with the January 2009 notices had previously been extended to 10 am on 18 February 2009. Time for compliance to accommodate the delivery of judgment today was further extended during the hearing to 4 pm on Friday 20 February 2009. ORDERS In proceeding NSD 2011 of 2008, the Court orders that:1.The time within which the Application for an Order of Review is to be filed is extended to 24 December 2008. 2.The Amended Application for an Order of Review as filed on 23 January 2009 is dismissed. 3.The Applicant is to pay the costs of the Respondents. In proceeding NSD 2013 of 2008, the Court orders that:1.The time within which the Application for an Order of Review is to be filed is extended to 24 December 2008. 2.The Amended Application for an Order of Review as filed on 23 January 2009 is dismissed. 3.The Applicant is to pay the costs of the Respondents.

Ratio Decidendi

Legal Principle Established

Established by: FLICK J

The Applicants in the present proceedings, it is considered, are more intent on attempting to find uncertainty where — upon a reasonable and practical reading of the Schedules — none exists.A FAILURE TO CONSIDER A RELEVANT CONSIDERATION The contention that the examiner when issuing the notices failed to consider the relevance of the documents identified in the Schedules to each of the notices, and presumably also failed to consider the volume of the documents described, focussed upon the record “in writing [of] the reasons for the issue of the notice” as required by s 29(1A). Those records were each in substantially similar terms. The form of the record was a single document which set forth the “Material Facts” as follows:MATERIAL FACTSI had regard to the following material for the purposes of being satisfied under subsection 29 (1A) of the Australian Crime Commission Act 2002 (Cth) (the Act) that it was reasonable in all the circumstances to issue the notice:(a) A statement of facts and circumstances dated 3 December 2008(b) Legal submissions dated 3 December 2008The form of the record thereafter continued to set forth the Schedule of documents required to be produced and concluded:Based upon my consideration of the statement of facts and circumstances and the legal submissions which are referred to above :(1)I was satisfied that the investigation/operation was within the terms of the Determination and that the Determination was still operative.(2)I was satisfied that it was reasonable in all the circumstances that the Notice be issued to the party to whom it is directed.(3)I was satisfied that it was reasonable in all the circumstances that the Notice be issued in the terms approved by me.(4)I was satisfied that this was an appropriate Notice for the inclusion of a notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002 because if such a notation were not included it would reasonably be expected to prejudice the effectiveness of the operation or investigation and that a failure to do so might be contrary to the public interest.(5)I was satisfied that it was also appropriate that the notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002 be in the terms approved by me.A call was made for the production of the “statement of facts and circumstances” and for the “legal submissions” referred to. It was considered that those documents were not of immediate relevance to the arguments sought to be advanced by the Applicants and, had it been necessary to resolve the issue, a claim for public interest immunity would in all likelihood have prevailed. It was accepted by Counsel for the Commission that s 29(1A) is a provision to which s 25D of the Acts Interpretation Act1901 (Cth) applies. It may thus be seriously doubted whether the reasons as provided by the examiner in the present proceedings comply with the requirement to record the reasons for the decisions taken. Even if that potential deficiency is left to one side, the reasons as provided bear some of the hallmarks of a lack of attention being given by the examiner to the task being undertaken and some of the hallmarks of a standard form of reasons employed in such other instances upon which the examiner may have been called upon to exercise the power conferred by s 29. There is, for instance, not only the unacceptable brevity of the reasons provided but there is also a lack of attention as to whether the examiner was conducting a “special operation” or a “special investigation”. The notices record that a “special operation” was being undertaken — but the record of the reasons does not consider it appropriate to confine itself in a like manner. Those against whom the powers conferred by the 2002 Act are exercised are entitled to have confidence that the power is being lawfully invoked.