Egglishaw v Australian Crime Commission

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FEDERAL COURT OF AUSTRALIA

Egglishaw v Australian Crime Commission [2010] FCAFC 82

Citation: Egglishaw v Australian Crime Commission [2010] FCAFC 82
Appeal from: Egglishaw v Australian Crime Commission (No 3) [2009] FCA 1027
Parties: PHILIP JEPSON EGGLISHAW v THE AUSTRALIAN CRIME COMMISSION
File number: SAD 154 of 2009
Judges: SPENDER, EMMETT AND JACOBSON JJ
Date of judgment: 8 July 2010
Catchwords:

ADMINISTRATIVE LAW – challenge to summons issued under s 28(1) of the Australian Crime Commission Act 2002 (Cth) and subsequent examination – whether the summons was invalid because it stated that appellant was to appear before “an” examiner and not “the” examiner – whether failure to attach to the summons a variation to the determination of the ACC Board meant that the requirements of s 28(2) were not met.

Held: appeal dismissed – the use of “an examiner” does not invalidate the summons – the determination attached to the summons met the requirements of s 28(2).

ADMINISTRATIVE LAW – challenge to a notice to produce issued under s 29 of the Australian Crime Commission Act 2002 (Cth) and production of things pursuant to the notice – whether the notice was invalid because it failed to specify person to whom production was to be made – whether production was unlawful because they were not produced to the relevant person – meaning of “produce” – whether the notice was invalid because it called for production of things “forthwith”.

Held: appeal dismissed – the notice, read as a whole, makes clear that the things were to be produced to the Examiner – the word “produce” in s 29(1) does not require the receiver to take actual physical possession – “forthwith” was not an unreasonable time to require production.

Legislation: Australian Crime Commission Act 2002 (Cth) ss 7C, 28, 29, 57
Administrative Decision (Judicial Review) Act 1977 (Cth)
Crimes Act 1914 (Cth) s 3E
Judiciary Act 1903 (Cth) s 39B
Cases cited: A1 v National Crime Authority (1996) 67 FCR 464 considered
A.B. Pty Limited v Australian Crime Commission [2009] FCA 119 cited
Australian Crime Commission v NTD8 [2009] FCAFC 86 cited
C Incorporated v Australian Crime Commission [2010] FCAFC 4 cited
Epstein and Morton v WorkCover SA [2003] SASC 231 considered
Evans v Button (1988) 81 ALR 61 considered
FH Faulding & Co Ltd v Commissioner of Taxation (1994) 54 FCR 75 considered
Ganke v Deputy Commissioner of Taxation (1975) 25 FLR 98 cited
George v Rockett (1990) 170 CLR 104 cited
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 considered
Date of hearing: 15 February 2010
Place: Sydney (heard in Adelaide)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 101
Counsel for the Appellant: Mr M Abbott QC with Mr A Thomas
Solicitor for the Appellant: Francis Abourisk Lightowlers
Counsel for the Respondent: Ms S Maharaj QC with Mr R Prince
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 154 of 2009
ON APPEAL FROM THE…
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Details
Case
[2010] FCAFC 82
Decision Date

CaseChat Overview and Summary

Mr Egglishaw appealed against a decision of Besanko J, who dismissed his application for declarations that a summons and a notice to produce issued under the Australian Crime Commission Act 2002 (Cth) were invalid and that the subsequent examination and production of documents and things were unlawful. The court was required to determine whether the summons was invalid due to the use of the term “an examiner” instead of “the examiner” and whether the failure to attach a variation to the determination of the Australian Crime Commission Board rendered the summons invalid. Additionally, the court had to decide if the notice to produce was invalid because it did not specify the person to whom production was to be made and whether the production of items was unlawful for the same reason. Furthermore, the court was tasked with determining whether the word “produce” in s 29(1) required actual physical possession and if the term “forthwith” was an unreasonable time frame for requiring production.

The court dismissed the appeal, holding that the use of “an examiner” did not invalidate the summons. The determination attached to the summons met the requirements of s 28(2). The notice to produce, read as a whole, made clear that the items were to be produced to the Examiner. The word “produce” in s 29(1) did not require the recipient to take actual physical possession, and “forthwith” was not an unreasonable time frame for requiring production.

ORDERS:
1. The appeal is dismissed.
2. The appellant pay the costs of the appeal of the respondent.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the costs of the appeal of the respondent.

Note:

Background

Background to the litigation

Besanko J dismissed an application by Mr Philip Jepson Egglishaw (the appellant) under s 39B of the Judiciary Act1903 (Cth) for declarations in respect of a summons issued to the appellant pursuant to s 28(1) of the Australian Crime Commission Act 2002 (Cth) (the Act) and a notice to produce issued under s 29 of the Act. The appellant sought declarations that both the summons and the notice were invalid, and that the examination conducted pursuant to the summons and the production of documents and things purportedly pursuant to the notice to produce were unlawful. BACKGROUND On 27 January 2004, an Examiner under the Act, Mr T Sage, issued a summons to the appellant pursuant to s 28(1) of the Act. Attached to the summons were the following documents: a copy of the “Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003” (the 2003 authorisation and determination) marked Annexure A; a schedule of documents and other things to be produced by the appellant marked Annexure B; and a statement of rights and obligations under s 29B of the Act and explanatory notes marked Annexure C. The 2003 authorisation and determination was made by the Board of the Australian Crime Commission at a meeting of the Board on 13 May 2003. The authorisation and determination was expressed to be valid until 31 May 2004. On 15 May 2003, the Chair of the Board signed a copy of the authorisation and determination, mistakenly asserting that it was made by resolution of the Board on 15 May 2003. On 4 December 2003, the authorisation and determination was varied by a resolution of the Board. This varying determination was called the “Australian Crime Commission – Operations and Investigations (Participants) Determination 2003” (the 2003 variation). In the 2003 authorisation and determination, the classes of persons to participate in the investigation were specified in Schedule 2 of the document. This was varied by the 2003 variation to make changes to the classes of persons who were to participate in the special investigation. Section 6 of the 2003 authorisation and determination provided:Classes of persons to participate in an investigation Pursuant to paragraph 7C(1)(e) of the Act, the classes of persons to participate in the investigation mentioned in Schedule 1 are those mentioned in Schedule 2. Schedule 2 provided:Schedule 2 Classes of persons1The CEO.2Members of staff of the ACC authorised in writing by the CEO or by a delegate of the CEO.3Officers and members of staff, authorised in writing by the head of the agency, of the following agencies:(a)each agency of which a Board member is head (other than the CEO) in his or her capacity as a Board member;(b)the Australian Taxation Office;(c)AUSTRAC;(d)the Department of Immigration and Multicultural and Indigenous Affairs;(e)the New South Wales Crime Commission;(f)the Queensland Crime and Misconduct Commission. Section 4 of the 2003 variation provided:Classes of persons to participate in operation(1)For paragraph 7C(1)(c) of the Act, the classes of persons to participate in the intelligence operation, or the investigation into a federally relevant criminal activity, to which an Instrument mentioned in Schedule 1 applies are the classes mentioned in Schedule 2.(2)For the avoidance of doubt, a provision in an Instrument mentioned in Schedule 1 that specifies the classes of persons to participate in the operation or investigation to which the Instrument relates is revoked and replaced by this Determination.(Emphasis added).

Evidence

Evidence Before The Court

At the time the summons was issued on 27 January 2004, and at all later relevant times, s 28 of the Act was as follows:28 Power to summon witnesses and take evidence(1) An examiner may summon a person to appear before the examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.(1A) Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons.(2) A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.(3) A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the examiner intends to question the person, but nothing in this subsection prevents the examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.(4) The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.(5) An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:(a)the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and(b)the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.(6) In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO.(7) The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation. The examination of the appellant commenced on 17 February 2004 before Mr Sage, and continued on 19 February 2004 and on subsequent days. On 19 February 2004, a notice to produce was issued by the Examiner, Mr Sage, and served on the appellant by an officer of the Commission, Mr Ian Andrew, in the presence of the appellant’s counsel, Mr David Galbally QC, and his solicitor, Mr Michael Carr. Attached to the notice were a schedule of documents and other things to be produced by the appellant, and a statement of rights and obligations under s 29B of the Act.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 4 of the 2003 variation provided:Classes of persons to participate in operation(1)For paragraph 7C(1)(c) of the Act, the classes of persons to participate in the intelligence operation, or the investigation into a federally relevant criminal activity, to which an Instrument mentioned in Schedule 1 applies are the classes mentioned in Schedule 2.(2)For the avoidance of doubt, a provision in an Instrument mentioned in Schedule 1 that specifies the classes of persons to participate in the operation or investigation to which the Instrument relates is revoked and replaced by this Determination.(Emphasis added). Schedule 1 includes, as the second Instrument in a list of nine, “Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003”, that is the 2003 authorisation and determination. Schedule 2, in the classes of persons who participate in the intelligence operation or the investigation into a federally relevant criminal activity, includes:2Each person who is:(a) a member of the staff of the ACC; and (b)identified in writing by the CEO, or a delegate of the CEO, as a person whose duties include providing services in relation to ACC operations and investigations.3Each person who is:(a) an officer or member of the staff of any of the following agencies:(i)an agency of which a Board member is head (other than the CEO) in his or her capacity as a Board member;(ii) the Australian Taxation Office:(iii) AUSTRAC:(iv)the Department of Immigration and Multicultural and Indigenous Affairs;(v) the New South Wales Crime Commission;(vi)the Queensland Crime and Misconduct Commissioner; and(b)identified in writing by the head of that agency, or a delegate of that head, as a person whose duties include providing services in relation to ACC operations and investigations. The change to the classes of persons who were to participate in the special investigation had no material significance in relation to the persons involved in this special investigation. It is common ground between the parties that the 2003 variation did not accompany the summons issued to the appellant on 27 January 2004. Relevantly, the summons directed to the appellant contained the following:Pursuant to sub-section 28(1) of the Australian Crime Commission Act 2002, you are required:a) to attend at Level 2, 383 Latrobe Street, Melbourne on 17 February 2003 at 10.00am before an Examiner at an examination to be held for the purposes of the abovementioned special investigation to give evidence in relation to…(Emphasis in the original) The summons was signed by Mr Sage, over the printed word “Examiner”. At the time the summons was issued on 27 January 2004, and at all later relevant times, s 28 of the Act was as follows:28 Power to summon witnesses and take evidence(1) An examiner may summon a person to appear before the examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.(1A) Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons.(2) A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.(3) A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the examiner intends to question the person, but nothing in this subsection prevents the examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.(4) The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.(5) An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:(a)the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and(b)the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.(6) In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO.(7) The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.