B v Australian Crime Commission - [2011] FCA 1046

FEDERAL COURT OF AUSTRALIA
B v Australian Crime Commission [2011] FCA 1046

Citation: B v Australian Crime Commission [2011] FCA 1046

Parties: B v AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON

File number: SAD 14 of 2011

Judge: BESANKO J

Date of judgment: 8 September 2011

Catchwords:
ADMINISTRATIVE LAW — application under s 39B of the Judiciary Act 1901 (Cth) and ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for declarations and injunctions in relation to decisions and conduct of the Australian Crime Commission (‘Commission’) and its examiner under the Australian Crime Commission Act 2002 (Cth) (‘the Commonwealth Act’) and Australian Crime Commission (South Australia) Act 2004 (‘the State Act’) — where Board of Commission had made instrument pursuant to s 55A(3) of Commonwealth Act authorising special investigation into criminal activity under State Act — where applicant summoned to be examined and to produce documents pursuant to the determination — where determination referred to ‘clause 4’ but the determination contained no clause 4 — whether therefore determination did not satisfactorily describe investigation as required by s 8(4)(a) of the State Act — consideration of uncertainty as ground for judicial review — where examiner not listed in determination in classes of person to participate in the investigation — whether the examiner had authority to issue the summons given requirement of s 8(1)(b) of the State Act — where criminal proceedings pending against applicant in State court

Held: The application was dismissed.

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6
Australian Crime Commission Act 2002 (Cth) ss 4, 55A
Australian Crime Commission (South Australia) Act 2004 (SA) ss 3, 8, 19, 21
Judiciary Act 1901 (Cth) s 39B
Australian Crime Commission — State Special Investigation Consent and Determination (High Risk Crime Groups — South Australia) 2009

Cases cited: Australian Crime Commission v OK (2010) 185 FCR 258, cited
Ballarat Broadcasters Pty Ltd v Australian Broadcasting Tribunal (unreported, Davies J, 16 September 1988), cited
D v Australian Crime Commission (2006) 152 FCR 497, cited
Hitchener v Ham [1961] VR 97, cited
Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, cited
P v Board of the ACC (2006) 151 FCR 114, cited
Parks Holdings Pty Ltd v Chief Executive Officer of Customs (2004) 81 ALD 365, cited
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited
Taylor v Centennial Newstan Pty Ltd (2009) 76 NSWLR 379, cited
Television Corporation Ltd v The Commonwealth of Australia (1963) 109 CLR 59, cited
Wentworth Securities Ltd v Jones [1980] AC 74, cited
Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (3^rd ed, Thomson Lawbook Co, 2004)

Date of hearing: 7 June 2011

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 43

Counsel for the Applicant: Mr T Cox

Solicitor for the Applicant: Patsouris &…

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: [2011] FCA 1046
Decision Date: 8 September 2011

CaseChat Overview and Summary

The applicant sought judicial review of decisions and conduct of the Australian Crime Commission and its examiner under the Australian Crime Commission Act 2002 (Cth) and Australian Crime Commission (South Australia) Act 2004 (Cth). The dispute centred on the validity of an instrument authorising a special investigation into criminal activity, a summons issued to the applicant to be examined and produce documents, and the authority of the examiner to issue the summons. The applicant argued that the instrument was invalid because it did not adequately describe the investigation as required by the State Act, and that the examiner lacked authority to issue the summons because they were not listed in the instrument. The applicant sought declarations and injunctions to challenge the decisions and conduct of the Commission and its examiner.

The court was required to determine whether the instrument was valid and whether the examiner had the authority to issue the summons. The court considered the uncertainty of the instrument as a ground for judicial review, and whether the requirement of the State Act that the examiner be listed in the instrument was mandatory or directory. The court held that the instrument was valid, as the reference to 'clause 4' in the instrument was a typographical error and did not affect the validity of the instrument. The court also held that the requirement of the State Act that the examiner be listed in the instrument was directory, and therefore the examiner had the authority to issue the summons.

The court dismissed the applicant’s application for judicial review. The court held that the instrument was valid and that the examiner had the authority to issue the summons. The court rejected the applicant’s argument that the uncertainty of the instrument was a ground for judicial review, and held that the requirement of the State Act that the examiner be listed in the instrument was directory. The court held that the applicant’s application must be dismissed with costs.

The court made two orders. First, the court dismissed the applicant’s application for judicial review. Second, the court ordered the applicant to pay the respondents’ costs of the application. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondents’ costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant’s third ground of challenge must be rejected.CONCLUSION For the reasons I have given the applicant’s application must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		B v Australian Crime Commission [2011] FCA 1046
Parties:		B v AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON
File number:		SAD 14 of 2011
Judge:		BESANKO J
Date of judgment:		8 September 2011
Catchwords:		ADMINISTRATIVE LAW — application under s 39B of the Judiciary Act 1901 (Cth) and ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for declarations and injunctions in relation to decisions and conduct of the Australian Crime Commission (‘Commission’) and its examiner under the Australian Crime Commission Act 2002 (Cth) (‘the Commonwealth Act’) and Australian Crime Commission (South Australia) Act 2004 (‘the State Act’) — where Board of Commission had made instrument pursuant to s 55A(3) of Commonwealth Act authorising special investigation into criminal activity under State Act — where applicant summoned to be examined and to produce documents pursuant to the determination — where determination referred to ‘clause 4’ but the determination contained no clause 4 — whether therefore determination did not satisfactorily describe investigation as required by s 8(4)(a) of the State Act — consideration of uncertainty as ground for judicial review — where examiner not listed in determination in classes of person to participate in the investigation — whether the examiner had authority to issue the summons given requirement of s 8(1)(b) of the State Act — where criminal proceedings pending against applicant in State court Held: The application was dismissed.
Legislation:		Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6 Australian Crime Commission Act 2002 (Cth) ss 4, 55A Australian Crime Commission (South Australia) Act 2004 (SA) ss 3, 8, 19, 21 Judiciary Act 1901 (Cth) s 39B Australian Crime Commission — State Special Investigation Consent and Determination (High Risk Crime Groups — South Australia) 2009
Cases cited:		Australian Crime Commission v OK (2010) 185 FCR 258, cited Ballarat Broadcasters Pty Ltd v Australian Broadcasting Tribunal (unreported, Davies J, 16 September 1988), cited D v Australian Crime Commission (2006) 152 FCR 497, cited Hitchener v Ham [1961] VR 97, cited Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, cited P v Board of the ACC (2006) 151 FCR 114, cited Parks Holdings Pty Ltd v Chief Executive Officer of Customs (2004) 81 ALD 365, cited Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited Taylor v Centennial Newstan Pty Ltd (2009) 76 NSWLR 379, cited Television Corporation Ltd v The Commonwealth of Australia (1963) 109 CLR 59, cited Wentworth Securities Ltd v Jones [1980] AC 74, cited Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (3^rd ed, Thomson Lawbook Co, 2004)
Date of hearing:	7 June 2011
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	43
Counsel for the Applicant:	Mr T Cox
Solicitor for the Applicant:	Patsouris &…