DCL22 v Sage - [2022] FCAFC 196

FEDERAL COURT OF AUSTRALIA
DCL22 v Sage [2022] FCAFC 196

Appeal from: DCL22 v Sage [2022] FCA 1310

File number: VID 637 of 2022

Judgment of: ALLSOP CJ, WIGNEY AND BROMWICH JJ

Date of judgment: 7 December 2022

Catchwords:
ADMINISTRATIVE LAW – application for judicial review of summons issued under s 28 of the Australian Crime Commission Act 2002 (Cth)

PRACTICE AND PROCEDURE – public interest immunity – application for leave to appeal from orders of the primary judge that public interest immunity claims established – whether s 75(v) of the Constitution requires a judge considering a public interest immunity claim to review the material over which immunity is claimed and take into account in the balancing exercise the importance of judicial review of executive action – where submissions put on appeal were not put to the primary judge – where further evidence may be required – where no error shown in the primary judge’s reasoning on the arguments and materials put at first instance – leave to appeal refused

Legislation:
Constitution s 75(v)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Crime Commission Act 2002 (Cth) s 28

Federal Court of Australia Act1976 (Cth) subs 20(1A)

Judiciary Act 1903 (Cth) s 39B

Cases cited:
Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353

Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1

R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407

Division: General Division

Registry: Victoria

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 39

Date of hearing: 28 November 2022

Counsel for the applicant Mr C Lenehan SC and Mr M Guo

Solicitor for the applicant Radovic Lawyers

Counsel for the respondents Ms S Maharaj KC and Mr R Minson

Solicitor for the respondents Australian Government Solicitor

ORDERS

VID 637 of 2022

BETWEEN:
DCL22

Applicant

AND:
TIM SAGE

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ORDER MADE BY:

ALLSOP CJ, WIGNEY AND BROMWICH JJ

DATE OF ORDER:

7 DECEMBER 2022

THE COURT ORDERS THAT:
1.The applicant be granted an extension of time for the filing and serving of the application for leave to appeal to the date of the filing of the application for an extension of time.
2.Leave to appeal be refused.
3.The applicant pay the respondents’ costs of the application for an extension of time, the application for leave to appeal and for the argument of the appeal that took place.
4.The parties have liberty to file and serve, within 7 days, submissions as to subs 20(1A) of the Federal Court of Australia Act 1976 (Cth).

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

REASONS FOR JUDGMENT
ALLSOP CJ:

Before the Court are: an application for an extension of time in which to file an application for leave to appeal from orders of the primary judge upholding claims…

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.

Continue reading DCL22 v Sage

Details

AGLC: DCL22 v Sage [2022] FCAFC 196
Case: [2022] FCAFC 196
Decision Date: 7 December 2022

CaseChat Overview and Summary

The case of DCL22 v Sage involved an application for judicial review of a summons issued under section 28 of the Australian Crime Commission Act 2002. The applicant sought to challenge the summons, which had been issued based on information gathered by the Australian Crime Commission. The matter was heard and determined by the Federal Court of Australia. The primary issues before the court were whether the public interest immunity claims were properly established and if the primary judge's approach to these claims was correct.

The court had to determine if section 75(v) of the Constitution mandated that a judge considering a public interest immunity claim must review the material over which immunity is claimed, and whether the importance of judicial review of executive action must be taken into account in the balancing exercise. The applicant argued that the primary judge failed to adequately consider the material and the significance of judicial review. However, the court found that the submissions made on appeal were not presented to the primary judge, and it was possible that further evidence might be required to fully address the issues. Despite this, the court concluded that there was no error in the primary judge’s reasoning based on the arguments and materials presented at the first instance.

The court refused the applicant's leave to appeal, noting that the submissions on appeal had not been put to the primary judge and that there was no demonstrated error in the primary judge's reasoning. Consequently, the court granted the applicant an extension of time for filing and serving the application for leave to appeal. The applicant was also ordered to pay the respondents' costs associated with the application for an extension of time, the application for leave to appeal, and the argument of the appeal. Finally, the court gave the parties liberty to file and serve submissions regarding subsection 20(1A) of the Federal Court of Australia Act 1976 within seven days.

Orders

Orders of the court

1. The applicant be granted an extension of time for the filing and serving of the application for leave to appeal to the date of the filing of the application for an extension of time.

2. Leave to appeal be refused.

3. The applicant pay the respondents’ costs of the application for an extension of time, the application for leave to appeal and for the argument of the appeal that took place.

4. The parties have liberty to file and serve, within 7 days, submissions as to subs 20(1A) of the Federal Court of Australia Act 1976 (Cth).

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Appeal from:	DCL22 v Sage [2022] FCA 1310
File number:	VID 637 of 2022
Judgment of:	ALLSOP CJ, WIGNEY AND BROMWICH JJ
Date of judgment:	7 December 2022
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of summons issued under s 28 of the Australian Crime Commission Act 2002 (Cth) PRACTICE AND PROCEDURE – public interest immunity – application for leave to appeal from orders of the primary judge that public interest immunity claims established – whether s 75(v) of the Constitution requires a judge considering a public interest immunity claim to review the material over which immunity is claimed and take into account in the balancing exercise the importance of judicial review of executive action – where submissions put on appeal were not put to the primary judge – where further evidence may be required – where no error shown in the primary judge’s reasoning on the arguments and materials put at first instance – leave to appeal refused
Legislation:	Constitution s 75(v) Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Crime Commission Act 2002 (Cth) s 28 Federal Court of Australia Act1976 (Cth) subs 20(1A) Judiciary Act 1903 (Cth) s 39B
Cases cited:	Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353 Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	39
Date of hearing:	28 November 2022
Counsel for the applicant	Mr C Lenehan SC and Mr M Guo
Solicitor for the applicant	Radovic Lawyers
Counsel for the respondents	Ms S Maharaj KC and Mr R Minson
Solicitor for the respondents	Australian Government Solicitor

ORDER MADE BY:	ALLSOP CJ, WIGNEY AND BROMWICH JJ
DATE OF ORDER:	7 DECEMBER 2022