Ferguson v ACT Integrity Commission (No 2) - [2025] ACTSC 380

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ferguson v ACT Integrity Commission (No 2)
Citation:	[2025] ACTSC 380
Hearing Date:	22 August 2025
Decision Date:	26 August 2025
Before:	Mossop J
Decision:	(1) The application for an interlocutory injunction contained in the originating application filed 23 July 2025 is dismissed. (2) All questions of costs are reserved with liberty to apply on seven days’ notice. (3) The proceedings are listed before the Registrar on 1 September 2025 at 9:30am and the parties are to provide agreed or competing directions to the Registrar by 4pm on 28 August 2025.
Catchwords:	PRACTICE AND PROCEDURE – INJUNCTIONS – Where plaintiff sought interlocutory injunction to prevent Integrity Commission accessing data from mobile phone – where grounds of application raise serious questions to be tried, but factual and legal merits of grounds favour Commission – where balance of convenience does not favour grant of injunction – where privacy over documents not the subject of a bona fide privilege claim only lost to Commission – where public interest in Commission being able to complete and report on investigation – application dismissed ADMINISTRATIVE LAW – INTEGRITY COMMISSION – Examination power – whether Commission failed to consider relevant considerations in issuing examination summons – whether Commission asked itself wrong question in requiring immediate production – whether Commission acted outside authority – whether right to privacy contravened – whether seizure of mobile phone constituted trespass to property – serious questions to be tried, including regarding relationship between s 147 and ss 117, 119 and 121 of the Integrity Commission Act 2018 (ACT) and s 12 of the Human Rights Act 2004 (ACT) – claims not obviously strong INTEGRITY COMMISSION – EXAMINATION POWER – Claim of client legal privilege over entire mobile phone handset, including documents where privilege is that of the Territory and not the plaintiff – whether claim is sufficiently specific to be a claim within s 161 of the Integrity Commission Act 2018 (ACT) – where open to and reasonably practicable for plaintiff to make a more specific claim that does meet requirements of s 161 – serious question to be tried
Legislation Cited:	Human Rights Act 2004 (ACT), ss 12, 28, 40B, 40C(6) Integrity Commission Act 2018 (ACT), ss 117, 119, 120, 121, 122, 147, 150, 161, 162, 174, 188 Legislation Act 2001 (ACT), s 196
Cases Cited:	ACT Integrity Commission v Levy (a pseudonym) [2022] ACTSC 240; 20 ACTLR 1 American Cyanamid Co v Ethicon Ltd [1975] AC 396 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; 265 CLR 646 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; 272 CLR 177
Parties:	David James Ferguson (…

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 Ferguson v ACT Integrity Commission (No 2)

Details

AGLC: Ferguson v ACT Integrity Commission (No 2) [2025] ACTSC 380
Case: [2025] ACTSC 380
Decision Date: 26 August 2025

CaseChat Overview and Summary

The plaintiff sought an interlocutory injunction to prevent the ACT Integrity Commission from accessing data from their mobile phone. The case was heard by the Federal Court of Australia, where the Commission contested the application. The plaintiff argued that the Commission failed to consider relevant considerations in issuing the examination summons, that the Commission had asked itself the wrong question in requiring immediate production of the phone, and that the Commission had acted outside its authority. Additionally, the plaintiff claimed that their right to privacy was contravened and that the seizure of their mobile phone constituted trespass to property. The plaintiff also argued that the Commission had failed to consider their claim of client legal privilege over the entire mobile phone handset.

The court found that while the plaintiff's grounds for the application raised serious questions to be tried, the factual and legal merits of the grounds favoured the Commission. The court also found that the balance of convenience did not favour the grant of an injunction. The court found that the plaintiff's privacy over the documents was not the subject of a bona fide privilege claim only lost to the Commission. The court found that the public interest in the Commission being able to complete and report on the investigation outweighed the plaintiff's privacy interests. The court found that the plaintiff's claims regarding the Commission's examination power and the right to privacy were not obviously strong.

The application for an interlocutory injunction was dismissed. The court found that the plaintiff's claims did not meet the requirements of section 161 of the Integrity Commission Act 2018 (ACT) as they were not specific enough. The court found that it was open to and reasonably practicable for the plaintiff to make a more specific claim that did meet the requirements of section 161. The court found that the plaintiff's claims regarding the Commission's examination power raised serious questions to be tried, including regarding the relationship between section 147 and sections 117, 119, and 121 of the Integrity Commission Act 2018 (ACT) and section 12 of the Human Rights Act 2004 (ACT). All questions of costs were reserved with liberty to apply on seven days’ notice. The proceedings were listed before the Registrar on 1 September 2025 at 9:30am, and the parties were to provide agreed or competing directions to the Registrar by 4pm on 28 August 2025.

Orders

Orders of the court

(1) The application for an interlocutory injunction contained in the originating application filed 23 July 2025 is dismissed.

(2) All questions of costs are reserved with liberty to apply on seven days’ notice.

(3) The proceedings are listed before the Registrar on 1 September 2025 at 9:30am and the parties are to provide agreed or competing directions to the Registrar by 4pm on 28 August 2025.

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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