GG v Australian Crime Commission

Link copied
Case Copied 29 min read

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, cited
Date 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 Respondent

JEFFREY 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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read GG v Australian Crime Commission and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2010] FCAFC 15
Decision Date

CaseChat Overview and Summary

The appellant, GG, challenged the validity of a summons issued by the Australian Crime Commission (ACC) under section 28 of the Australian Crime Commission Act 2002 (Cth). The ACC had issued the summons on the basis of a special investigation rather than a special operation, a distinction critical under the Act. The primary judge had dismissed GG’s challenge, but GG appealed to a higher court. The appeal centred on whether the ACC examiner had erred in law by failing to distinguish between a special operation and a special investigation and whether the error was apparent on the face of the record.

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

On 23 October 2008, the examiner recorded his reasons for issuing the summons directed to the appellant. Although the name of it was redacted, the reasons identified an “operation” as providing the statutory authority for the summons. After stating the “purpose of summons” in terms which, as the document was put before the primary Judge, were partially redacted, the examiner’s reasons continued as follows:MATERIAL FACTSI had regard to the following material for the purposes of being satisfied under subsection 28(1A) of the Australian Crime Commission Act 2002 (Cth) (the Act) that it was reasonable in all the circumstances to issue the summons:(a) A statement of facts and circumstances dated 23 October 2008,(b) Legal submissions dated 22 October 2008 and(c) My knowledge obtained from a recent examination (sic).CONSIDERATIONBased upon my consideration of the statement of facts and circumstances and the legal submissions, which are referred to above:1) I was satisfied that the operation was within the terms of the Determination and that the Determination was still operative.2) I was satisfied that it was reasonable in all the circumstances that the Summons be issued to the person to whom it is directed.3) I was satisfied that it was reasonable in all the circumstances that the Summons be issued in the terms approved by me4) I was satisfied that the summons does, so far as is reasonably practicable, set out the general nature of the matters in relation to which it is intended to question the person.5) I was satisfied that, in the particular circumstances of the special ACC operation to which the examination relates, it would prejudice the effectiveness of the special ACC operation for the summons to state beyond that which it does the general nature of the matters in relation to which the examiner intends to question the person.6) I was satisfied that this was an appropriate Summons for the inclusion of a notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002, in the terms approved by me, because if such a notation were not included it would reasonably be expected to prejudice the effectiveness of the operation and that a failure to do so might be contrary to the public interest. In the proceeding before the primary Judge, the respondents tendered each of the documents identified as (a) and (b) under the heading “Material Facts” in the extract set out above. Apart from formal details, the statement of facts and circumstances was almost wholly redacted. Some of those formal details, however, are presently relevant. The document provided, seemingly in the way of a pro-forma, for the insertion of “operation/investigation name”. The words “special investigation”, followed by a word or words that was or were redacted, were then set out. Item 14 on the document consisted of a sub-heading in the following terms: “A concise statement of the facts or circumstances that are the subject of the ACC investigation”. Everything under that sub heading was redacted. Item 15 was as follows: “A concise statement of the purpose for which the examination is sought”. Everything under that sub heading was also redacted.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.