Apm21 v Lusty - [2021] FCCA 570

FEDERAL CIRCUIT COURT OF AUSTRALIA

APM21 v LUSTY & ORS

[2021] FCCA 570

Catchwords:
ADMINISTRATIVE LAW – Application for interlocutory relief in relation to a summons issued by the Australian Criminal Intelligence Commission (ACIC) – applicant summonsed to give evidence before the ACIC regarding specified criminal activity, as defined in the Special Australian Criminal Intelligence Commission Investigation Determination (Highest Risk Criminal Targets) 2020 – applicant contends the summons and its related determination is invalid as they were too broad in their terms and failed to set out the general nature of the matters in relation to which the applicant was to be questioned – applicant also contends the ACIC board’s determination is affected by jurisdictional error as the scope of the investigation is unable to be ascertained – respondent submits the public interest in the ACIC operating efficiently favours the interlocutory relief being refused – prima facie case – balance of convenience.

Legislation:

Australian Crime Commission Act 2002 (Cth), ss.4, 7, 7A, 7B, 7C, 28, 46B

Cases cited:

AA v Board of ACC (2009) 178 FCR 171

Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

National Crime Authority v A1 (1997) 75 FCR 274

LX v Commonwealth (2016) 259 A Crim R 1

XCIV v Australian Crime Commission (2015) 234 FCR 274

Applicant:

APM21

First Respondent:

DAVID LUSTY

Second Respondent:

AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION

Third Respondent:

COMMONWEALTH OF AUSTRALIA

File Number:

ADG 31 of 2021

Judgment of:

Judge Brown

Hearing date:

10 March 2021

Date of Last Submission:

10 March 2021

Delivered at:

Adelaide

Delivered on:

29 March 2021

REPRESENTATION

Counsel for the Applicant:

Mr Abbott QC/Mr McDonald SC

Solicitors for the Applicant:

Patsouris & Associates

Counsel for the Respondents:

Ms Maharaj QC/Mr Tran

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The name of the applicant be anonymised so that the identity of the applicant is not revealed in any documents filed on the court’s portal or otherwise filed with the court, or revealed in any other way, and the name be identified as ‘APM21’.
The application for interlocutory relief dated 12 February 2021 is dismissed.
The interim injunction, made on 10 March 2021 restraining Mr Lusty from proceeding with his examination of the applicant, is discharged.
Further consideration of the matter is adjourned to 15 June 2021 at 9.30am to determine whether a final hearing date should be allocated and to address any related applications of the parties.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 31 of 2021

APM21

Applicant

And

DAVID LUSTY

First Respondent

AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings, arising at an interlocutory stage, relate to the operation of the board of the Australian Criminal Intelligence Commission,[1] which is an entity created by the Australian Crime Commission Act 2002 (Cth).[2]
[1] Hereinafter referred to as the ACIC or the Commission
[2] Hereinafter referred to as the ACIC Act or the Act
The central issue arising being whether a summons issued…

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: [2021] FCCA 570
Decision Date: 29 March 2021

CaseChat Overview and Summary

The applicant, Apm21, sought interlocutory relief to restrain the Australian Criminal Intelligence Commission (ACIC) from enforcing a summons issued to the applicant. The summons required the applicant to give evidence before the ACIC concerning specified criminal activity, as defined by the Special Australian Criminal Intelligence Commission Investigation Determination (Highest Risk Criminal Targets) 2020. The ACIC opposed the application, arguing that the public interest in its efficient operation favoured the refusal of interlocutory relief.

The central legal issues before the court were whether the summons and the related determination were invalid due to being overly broad and failing to specify the general nature of the matters for questioning. Additionally, the court had to determine if the ACIC board's determination was affected by jurisdictional error, arising from an inability to ascertain the scope of the investigation. The court was also required to consider the applicant's prospects of establishing a prima facie case and the balance of convenience in granting or refusing the interlocutory relief.

The court's reasoning focused on the requirements for valid administrative decision-making and the principles governing interlocutory relief. It considered whether the ACIC had acted within its statutory powers and whether the determination provided sufficient clarity regarding the investigation's scope. The court applied the legal principles relating to jurisdictional error, which occurs when a decision-maker acts outside the limits of their authority, and the tests for granting interlocutory injunctions, including the need for a prima facie case and a favourable balance of convenience.

Orders