CC Pty Ltd & Ors v Australian Crime Commission & Anor

[2007] HCATrans 687

[2007] HCATrans 687

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A32 of 2007

B e t w e e n -

CC PTY LTD

First Applicant

A PTY LTD/315/05

Second Applicant

B PTY LTD/315/05

Third Applicant

A315/05

Fourth Applicant

B315/05

Fifth Applicant

C315/05

Sixth Applicant

D315/05

Seventh Applicant

and

AUSTRALIAN CRIME COMMISSION

First Respondent

THE BOARD OF THE AUSTRALIAN CRIME COMMISSION

Second Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 16 NOVEMBER 2007, AT 10.10 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR A.M. THOMAS, for the applicants.  (instructed by Patsouris & Associates).

MS S.J. MAHARAJ, QC:   If the Court pleases, I appear with my learned friend, MR T.P. DUGGAN, for the respondents.  (instructed by Australian Crime Commission)

GLEESON CJ:   Thank you, Mr Jackson.

MR JACKSON:   Your Honours, the Australian Crime Commission Act, which should be in the applicants’ book of materials, gives the Board of the
Australian Crime Commission a number of important functions which your Honours will see set out in section 7C of that, which should be at pages 43 and 44.  Those functions include, as your Honours will see from section 7C(1)(d):

to determine, in writing, whether such an operation –

a term which refers back to the preceding paragraph, that is, “to investigate matters relating to federally relevant criminal activity” –

is a special investigation –

Could I refer your Honours also to section 7C(3) and (4).  May I come to the requirements for voting in just a moment but could I mention first that the determination that an investigation is a special investigation has very serious consequences.  One is that the ability for judicial review of acts purportedly done in reliance upon such a determination is very severely curtailed.  Your Honours will see that in section 16(b).

A second is that a warrant to search and seize may be issued.  Your Honours will see section 22(1) of the Act.  A third is that a passport may be ordered to be delivered up, section 24(1) and, fourthly, there can be an examination, section 24A, at which a person may be compelled to give evidence.  The Full Court of the Federal Court referred to other consequences at page 35 of the application book, paragraph 26.

Your Honours, underlying those matters is the determination by the Board that an investigation of matters relating to a federally relevant criminal activity is to have the status of a special investigation.  Such a determination is one which section 7C(1)(d), if I could go back to that, and also section 7C(3) say must be the subject of a determination in writing.  What then – and this is what the case is about, of course – is meant by that?  It involves questions of, basically speaking, two kinds.  One is a question of content and the other is a question of manner. 

As to the question of content, it must set out the matters referred to in section 7C(4).  As to form, your Honours, the Board of the Crime Commission is referred to in section 7B(2).  Your Honours will see that it consists of a number of persons.  It is not a body corporate, it has no seal and, because the determination made by the Board is to be a determination in writing, one would expect that on the writing which is to be the determination each Board member would, in one way or another, express assent to or dissent from the determination. 

That such a manifestation of views is contemplated is apparent, in our submission, from section 7G(4) because Your Honours will see that section 7G(4) requires that a particular majority in numbers and composition must “vote in favour of making the determination”.  That differs from the ordinary position.  Ordinarily, as appears from section 7G(1), simply a majority of votes of those present is sufficient.  There is no provision for proxies.

There is a special provision, not applicable to this case, which allows the making of such a resolution between meetings.  That is found in section 7J.  Even in, and perhaps especially in, those circumstances one would expect the resolution to record those matters, namely, that those persons have indicated or nine Board members, including at least two eligible Commonwealth members ‑ ‑ ‑

GLEESON CJ:   This is a very small matter, but section 7B(2), I can only count eight.

MR JACKSON:   I am sorry, section 7B(2)?

GLEESON CJ:   Section 7B(2) that you drew attention to earlier.

MR JACKSON:   Section 7B(2)(f), your Honour, brings the numbers up.

GLEESON CJ:   I see.  That solves the problem.

MR JACKSON:   I think there are 14 altogether, your Honour.  What I was going to say is this, your Honour.  In the ordinary course of events, if you leave aside the special situation or the ordinary Board meetings – these are not informal things, may I say, because if you look at section 7D there has to be a schedule of meetings, sections 7D(2)(c) and 7D(3).  In the ordinary course of events they have to comply with the schedule.

GLEESON CJ:   How do you say that the 14 of them make a determination in writing?

MR JACKSON:   Your Honour, what it involves is this.  They have to, in one way or another, by some form of writing, demonstrate on the piece of writing which is the determination, first of all, the voting of the members of the Board on the one hand and it may be, though perhaps not necessarily, that that has to demonstrate that there has been compliance with the requirement set out in section 7G(4).  Perhaps the second would simply flow from the method of signing the document but it would need to show ‑ ‑ ‑

GLEESON CJ:   There are minutes of these meetings, are there not?

MR JACKSON:   Yes, there are.  Your Honours will see from the materials it was not contended that the minutes were ‑ ‑ ‑

GLEESON CJ:   It was the writing.  I understand that, but I am talking about your point about demonstrating or being able to check that there was compliance with subsection (4).

MR JACKSON:   Yes.  That is why I say it is, perhaps as a separate matter, not essential but what we do say is that the members of the Board, your Honours will have seen, are all very senior people.  Their determination confers powers and takes away rights.  The statute mandates that.  It says “determine in writing”.  There is no room, in our submission, for half measures.  What has one ended with here?  A draft which it is claimed has been adopted.  That is it, your Honours.  It is no more than that.

GLEESON CJ:   A written document that has been adopted.

MR JACKSON:   Of course, your Honour.  A written document which is a draft that has been adopted and that is it.  But if one were to say, where is the determination in writing, all that is produced is a document which is a draft which it would have to be demonstrated has been adopted.  What is said by the section, unlike some other sections – and you can see even in section 7C itself – some things are to be determined, others are to be determined in writing.  Where is the determination in writing?   It is simply not there.  It is important, for the reasons to which I have adverted, to require that these things be done rather strictly. 

Could we in that regard refer your Honours to the decision of the Victorian Court of Appeal in B (A solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642. That should be the first document in the applicant’s book of materials. It appears at page 1 of the book. You will see that it says that:

An RPA may delegate in writing to an officer, an employee or the members of a committee of the RPA any of its powers or functions under –

a number of provisions.  The issue which arose was whether to do pretty much what was done here was good enough to amount to a delegation.  The Court of Appeal held it was not.  May I refer particularly to what was said by Justice Ormiston at page 3, in paragraphs 2 to 4.  It is at the bottom of page 3 of that book:

The word “delegate” . . . must take on its meaning . . . it ordinarily connotes a degree of formality especially when the provision requires that the delegation shall be “in writing”.

We would say that applies also to determinations of this kind.  Your Honours will then see on the next page, about 10 lines:

For the reasons stated in the judgment of Charles and Batt JJA I find it difficult to accept that the mere confirmation of the minutes . . . was sufficient to satisfy the statutory requirements.

What your Honours will see then is a reference to the fact, in paragraph 3, that there may be some “possible inconvenience” and he goes on to say in paragraph 4:

What the court is here concerned with, however, is a formal step taken by a body given certain statutory powers of considerable significance, in the present case, a power which permits the commencement of disciplinary proceedings before the Legal Profession Tribunal, potentially leading to loss of the right to practise.  The corporation’s minutes are not a means of delegating in writing a power of such an important kind.  They are intended to record the proceedings and decisions of the council as a board of directors, but even the language here adopted, that of “approving” a “recommendation” does not connote an immediate delegation.

Our submission is that the determination in writing potentially sets in train a number of matters which confer powers and, on the other hand, take away liberties, the provision should be construed as requiring what it says.

GLEESON CJ:   Presumably it was because of this case that you have just referred us to that it was not argued in the present case that the minutes were the determination in writing.

MR JACKSON:   Yes.  Your Honour, if one went to the minutes, what you will see is that they recorded the wrong date because they were signed by the chair showing a date two days later than the determination was made, if it were made.  Your Honours, those are our submissions with, if I may, one other thing.  The affidavit of Mr Patsouris, which your Honours should have, demonstrates this is not the only case in which this issue is involved.

GLEESON CJ:   We do not need to hear you, Ms Maharaj. 

The Full Court of the Federal Court of Australia upheld a decision of Justice Mansfield.  We think there are insufficient reasons to doubt the correctness of the decision of the Full Court of the Federal Court of Australia to warrant a grant of special leave to appeal and the application is dismissed.  Is there any question of costs?

MS MAHARAJ:   Yes, your Honours, we seek costs.

GLEESON CJ:   Do you resist that, Mr Jackson?

MR JACKSON:   There is nothing I can say about that, your Honour.

GLEESON CJ:   The application is dismissed with costs.

AT 10.23 AM THE MATTER WAS CONCLUDED