Egglishaw v Australian Crime Commission

[2008] FCA 1980

FEDERAL COURT OF AUSTRALIA

Egglishaw v Australian Crime Commission [2008] FCA 1980

PHILIP JEPSON EGGLISHAW v AUSTRALIAN CRIME COMMISSION

SAD 113 of 2008

BESANKO J
15 DECEMBER 2008
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 113 of 2008

BETWEEN:	PHILIP JEPSON EGGLISHAW Applicant
AND:	AUSTRALIAN CRIME COMMISSION Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	15 DECEMBER 2008
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The applicant’s notice of motion dated 19 November 2008 be dismissed.

2.The applicant’s notice of motion dated 3 December 2008 be dismissed.

3.The parties have leave to file and serve within seven days written submissions on the question of the appropriate order as to the costs of the notices of motion.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 113 of 2008

BETWEEN:	PHILIP JEPSON EGGLISHAW Applicant
AND:	AUSTRALIAN CRIME COMMISSION Respondent

JUDGE:	BESANKO J
DATE:	15 DECEMBER 2008
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is a proceeding in this Court between Philip Jepson Egglishaw and the Australian Crime Commission.

2. On 27 January 2004, the applicant was, by summons, required to appear before an examiner to give evidence, and to produce documents specified in the summons. The summons was issued by the examiner under s 28 of the Australian Crime Commission Act 2002 (Cth) (“the Act”).

3. On 19 February 2004, the applicant was served with a notice to attend and produce documents to the respondent. The notice was issued by the examiner under s 29 of the Act. In this proceeding the applicant alleges that the summons was invalid and the examination conducted pursuant to the summons was unlawful for reasons he sets out in his Further Amended Statement of Claim.

4. The applicant further alleges that the notice to produce was invalid and the production pursuant to the notice was unlawful for reasons set out in his Further Amended Statement of Claim.

5. For the purposes of these reasons it is unnecessary to set out the reasons for these claims, save and except for one allegation directly raised by the orders sought in one of the notices of motion before me.

6. The relief claimed by the applicant is a declaration that the summons is invalid, a declaration that the examination of the applicant conducted pursuant to the summons was unlawful, a declaration that the notice to produce is unlawful and a declaration that the respondent’s requirement, purportedly made pursuant to the notice to produce, that the applicant produce to a person named A the documents and things specified in the notice to produce, was unlawful.

7. The applicant issued two notices of motion in this proceeding, the first dated 19 November 2008 and the second dated 3 December 2008. He sought various orders but, as events have transpired, only two of the orders sought remain relevant.

   1.  The application to strike out paragraph 28 of the Defence

8. The applicant seeks an order that paragraph 28 of the respondent’s Defence dated 8 December 2008 be struck out. In the course of submissions, counsel for the respondent sought leave to amend paragraph 28 to admit one of the factual allegations previously denied. I see no reason not to allow the amendment, and leave will be granted.

9. Paragraph 28 of the Defence responds to allegations in paragraph 27 of the Further Amended Statement of Claim. In that paragraph, the applicant alleges:

   1.The notice to produce required the applicant to produce to A various documents and things specified in the notice.

   2.The respondent required the applicant to produce the documents and things specified in the notice to a person named B. 

   3.The documents and things were produced to B, pursuant to the respondent’s requirement.

10. It is alleged to follow from these allegations that the respondent breached s 29 of the Act, that the respondent’s requirement was unlawful, and that the production pursuant to the requirement was unlawful. The respondent admits the fact alleged in 1 above, and denies the facts alleged in 2 and 3 above. The respondent pleads that the documents and things specified in the notice were produced in accordance with the notice. In my opinion, the plea in paragraph 28 is an adequate plea and complies with the Rules of Court (see O 11 r 16 and r 18 of the Federal Court Rules).

11. There is no need for me to decide whether the plea in paragraph 28 was evasive or embarrassing before the amendment sought in the course of submissions. The fact is that it is not now evasive or embarrassing. The application to strike out paragraph 28 of the Defence is rejected.

    2. The application for production of documents

12. The applicant seeks an order for production of the following documents: 

    1.a statement of facts and circumstances in support of the issue of the s 28 summons;

    2.the examiner’s reasons for the issue of the summons;

    3.a statement of facts and circumstances in support of the issue of the s 29 notice; and

    4.the examiner’s reasons for the issue of the notice.

13. A number of questions arise in relation to the applicant’s application. The first question is whether the documents are relevant. If they are not relevant then that is an end of the matter. The applicant claims that the respondent has admitted that the documents are relevant. Alternatively, the applicant submits that the documents are relevant. The respondent denies these allegations and submits in the alternative that the documents are privileged from production on the ground of public interest immunity.

14. In the List of Documents filed and served by the respondent and dated 21 November 2008, the respondent discovered the documents in Schedule 1 Part 2 of the List. It claimed that the documents were privileged from production on the ground of public interest immunity. In the List of Documents filed and served on 1 December 2008, the documents were omitted from the list altogether. The respondent has now put forward an affidavit to the effect that the documents were included in the earlier List of Documents by mistake and that all along it has been asserting in correspondence with the applicant that the documents were not relevant. I accept that evidence. I accept that the documents were included in the List by mistake and, in those circumstances, the question of whether the documents are relevant must be determined without regard to the fact that the respondent had previously discovered the documents in its List of Documents.

15. The respective dates upon which the examiner recorded his reasons for issuing the summons and the notice to produce, and, in particular, whether he did so before those documents were issued, is an issue raised in the Further Amended Statement of Claim. In the Defence, the respondent admits that the reasons were recorded after the relevant document was issued. The allegations in the Further Amended Statement of Claim do not otherwise raise any issue in respect of which the documents may be relevant within the relevant principles. The applicant’s submission that the respondent has raised the validity of the summons and the notice to produce and in that way made the documents relevant, must be rejected.

16. The documents are not relevant, having regard to the issues raised in the proceedings. In the circumstances, there is no need for me to consider whether the documents would, in the alternative, be privileged from production by the doctrine of public interest immunity.

    Conclusion

17. I will order that:

    1.the applicant’s notice of motion dated 19 November 2008 be dismissed;

    2.the applicant’s notice of motion dated 3 December 2008 be dismissed; and

    3.the parties have leave to file and serve within seven days written submissions on the question of the appropriate order as to the costs of the notices of motion.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:   

Dated:        30 January 2009

Counsel for the Applicant:	Mr ML Abbott QC with Mr A Thomas
Solicitor for the Applicant:	Iles Selley Lawyers
Counsel for the Respondent:	Ms SJ Maharaj QC with Mr R Prince
Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	15 December 2008
Date of Judgment:	15 December 2008