FEDERAL COURT OF AUSTRALIA
GG v Australian Crime Commission [2010] FCAFC 15
Citation: GG v Australian Crime Commission [2010] FCAFC 15 Appeal from: GG v Australian Crime Commission [2009] FCA 759 Parties: GG v AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON File number: SAD 117 of 2009 Judges: DOWNES, JESSUP & TRACEY JJ Date of judgment: 26 February 2010 Catchwords: ADMINISTRATIVE LAW – Review of a decision of the Australian Crime Commission – Decision made under s 28 of the Australian Crime Commission Act 2002 (Cth) to issue a summons to the appellant – Whether the examiner made a jurisdictional error in failing to differentiate between a special operation and a special investigation – Where the examiner’s record of decision contains an error of law on the face of the record - Where no evidence or explanation given for the examiner’s apparent error – Where examiner fundamentally misunderstood the statutory basis for his authority to issue the summons – Appeal allowed Legislation: Acts Interpretation Act 1901 (Cth) s 20
Australian Crime Commission Act 2002 (Cth) ss 7A, 7A(b), 7B, 7B(3), 7C, 7C(1)(c), 7D, 7E, 28, 28(1), 28(1A), 28(3), 28(4), 28(7), 29, 29(1), 29(1A), 29(2), 46B
Australian Federal Police Act 1979 (Cth) ss 17, 19(1)
Judiciary Act 1903 (Cth) ss 39B, 39B(1A)(c)Cases cited: AB Pty Ltd v Australian Crime Commission (2009) 175 FCR 296, referred to
Australian Crime Commission v NTD8 (2009) 177 FCR 263, distinguished
Barnes v Boulton (2004) 139 FCR 356, cited
Craig v The State of South Australia (1995) 184 CLR 163, cited
Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, citedDate of hearing: 16 and 17 November 2009 Date of last submissions: 17 November 2009 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 41 Counsel for the Appellant: Mr M Abbott QC and Mr T Cox Solicitor for the Appellant: Patsouris & Associates Counsel for the Respondents: Ms S Maharaj QC & Ms J Gleeson Solicitor for the Respondents: Australian Crime Commission
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 117 of 2009
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: GG
Appellant
AND: AUSTRALIAN CRIME COMMISSION
First RespondentJEFFREY PHILIP ANDERSON
Second Respondent
JUDGES:
DOWNES, JESSUP & TRACEY JJ
DATE OF ORDER:
26 FEBRUARY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders made by the court on 20 July 2009 be set aside.
3.In place of those orders –
(a)it be declared that the summons issued by the second respondent on 23 October 2008 requiring the appellant to attend before him at 9.30 am on 10 November 2008 is invalid;
(b)it be ordered that the respondents pay the appellant’s costs.
4.The respondents pay the appellant’s costs of the appeal.
5.The operation of part (b) of order 3, and of order 4, above be stayed for 14 days.
6.The parties have liberty to apply on the matter of costs within the said…
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- Case
- [2010] FCAFC 15
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework and found that the examiner had indeed made a fundamental error in misunderstanding the statutory basis for issuing the summons. The examiner had referred to an "operation" in his reasons for issuing the summons, but the document identifying the nature of the investigation referred to a "special investigation". The court held that the examiner’s misunderstanding was apparent from the record and no evidence or explanation was provided to justify the error. The distinction between a special operation and a special investigation was crucial under the Act, and the failure to properly apply this distinction constituted a jurisdictional error.
Given the jurisdictional error, the court allowed the appeal and set aside the orders of the primary judge. The summons issued by the ACC was declared invalid, and the respondents were ordered to pay the appellant’s costs. The operation of the declaration of invalidity and the order for costs payment was stayed for 14 days to allow the parties to apply for further directions regarding costs. This decision underscores the importance of correctly interpreting statutory provisions in administrative law and the consequences of jurisdictional errors.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders made by the court on 20 July 2009 be set aside.
3. In place of those orders –
(a) it be declared that the summons issued by the second respondent on 23 October 2008 requiring the appellant to attend before him at 9.30 am on 10 November 2008 is invalid;
(b) it be ordered that the respondents pay the appellant’s costs.
4. The respondents pay the appellant’s costs of the appeal.
5. The operation of part (b) of order 3, and of order 4, above be stayed for 14 days.
6. The parties have liberty to apply on the matter of costs within the said period of 14 days.
Note:
Background
Background to the litigation
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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