GH (a Pseudonym) v Independent Broad-based
[2020] VSC 74
•12 February 2020 (Revised)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
PRACTICE COURT
S ECI 2020 00635
| GH (A Pseudonym) | Plaintiff |
| v | |
| INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION | Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 and 12 February 2020 |
DATE OF JUDGMENT: | 12 February 2020 (Revised) |
CASE MAY BE CITED AS: | GH (A Pseudonym) v Independent Broad-based Anti-corruption Commission |
MEDIUM NEUTRAL CITATION: | [2020] VSC 74 |
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JUDICIAL REVIEW – IBAC witness summons – Immediate attendance summons – Challenge to validity – Stay application – Purpose of issue of summons – Independent Broad-basedAnti-corruption Commission Act 2011 s 124.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms P Knowles and Dr E Kelly | Slater & Gordon |
| For the Defendant | Mr E Nekvapil | Independent Broad-based Anti–corruption Commission |
HIS HONOUR:
I heard this matter in the Practice Court. There is a summons on an originating motion in judicial review proceedings, which seeks orders that until the final hearing of the proceeding or further order, the plaintiff, now to be identified as GH,[1] not be required to attend for examination before the defendant, which is the Independent Broad-based Anti-corruption Commission (‘IBAC’) in answer to witness summons SE-3274.
[1]Pursuant to order made under s 30 of the Open Courts Act 2011 and Rule 28.05(2) of the Supreme Court (General Civil Procedure) Rules 2015. Reasons for the orders were given at the commencement of the hearing on 12 February 2020. These reasons have been redacted.
The summons was dated 7 February and was signed by the Deputy Commissioner and it stated:
You must attend [at a particular address] in the CBD immediately and from day to day unless excused or released from further attendance.
Four categories of matters about which GH will be required to give evidence are set out.
The IBAC legislation, the Independent Broad-based Anti-corruption Commission Act 2011 (‘the Act’) provides for two types of witness summons: a 7 days summons under s 124(1) and an immediate attendance summons under s 124(2).
IBAC wishes to conduct a witness examination of GH tomorrow, 13 February 2020, according to a prearranged hearing schedule. GH contends that the witness summons requiring his immediate attendance is invalid. IBAC previously sought to serve a 7 day summons on GH, but says that GH evaded service despite a number of attempts to serve GH. A Judge of the Court made a substituted service order for the service of the summons by service on GH’s solicitor. That occurred on Monday, 10 February 2020 and GH then commenced this proceeding on that same day.
The plaintiff’s argument as summarised in GH’s counsels’ written submissions is as follows. The witness summons to GH, should be struck out on the grounds that:
(a) the defendant cannot establish the grounds in s 124(2) of the Act justifying the issuing of a summons requiring GH’s immediate attendance; and
(b) in circumstances where the IBAC has not provided GH with all documents seized from GH, and privilege claims over those documents have not been determined, it is not reasonable for an examination to occur. Therefore, the plaintiff contends that doing so would constitute a denial of procedural fairness and a proper opportunity for GH to prepare, which will risk bringing the administration of justice into disrepute.
Background
The background to the matter is set out in the originating motion and includes the following:
(a) in 2019, the defendant commenced an investigation under the Act. The defendant executed a search warrant on addresses associated with GH, where over 1,000 gigabytes of material was seized, which were said to contain thousands of documents;
(b) last Thursday, on 6 February 2020, the plaintiff’s current solicitors began acting as GH’s solicitors, in place of a previous firm. They corresponded with IBAC about its proposed witness examination of GH. IBAC did not agree to defer GH’s examination, which was scheduled to be held on Thursday, 13 February 2020. IBAC had issued a 7 day summons requiring GH’s attendance on that day, but had been unable to serve it. It filed an affidavit of its attempts to serve GH with the 7 day summons;
(c) on 7 February 2020, the solicitors wrote to IBAC seeking confirmation that the defendant had not viewed the contents of any items seized, and it would not use the items directly or indirectly, or any information derived from the items seized, for the purposes of examining GH. IBAC stated in the hearing that it would not rely on seized documents that were subject to privilege claims; and
(d) further, on 7 February 2020, IBAC issued witness summons SE-3274 requiring GH to attend immediately at IBAC for compulsory examination. Again, on 7 February 2020, IBAC obtained from a Judge of this Court an order for substituted service of witness summons SE-3274 on GH’s solicitor. It emailed that summons to GH’s solicitor at 10.51am on Monday, 10 February 2020. That solicitor emailed IBAC asking for grounds and IBAC replied refusing to provide the grounds and threatened to issue enforcement proceedings against the plaintiff. That has led to this proceeding.
In deciding this application, I have taken into account that witness summons SE-3274 is a coercive measure, both in its 7 day notice form, and particularly the immediate attendance form. They significantly interfere with the normal rights and liberties of individuals. However, Parliament has authorised such summonses and has included certain safe guards concerning their use.[2]
[2]See Independent Broad-based Anti-corruption Commission Act 2011 ss 120–123 (‘IBAC Act’); see also R v Independent Broad-based Anti-corruption Commission (2016) 256 CLR 459 at 476 (Gageler J) .
The first of the GH’s two grounds contained in the originating motion is that the decision to issue the immediate attendance summons was ultra vires. GH contends that IBAC refused GH’s request to identify the grounds of s 124(2) of the Act upon which it relied to issue the summons, that there were no reasonable grounds to support its issue and that the decision to issue it was accordingly ultra vires.
Ground 2 alleges that the decision to issue the summons was unreasonable, that is, Wednesbury unreasonableness;[3] namely, that no reasonable decision maker could have reached the decision that was reached.[4] GH argued that it was not reasonable for the defendant or its delegate to issue the summons in the circumstances.
[3]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
[4]Ibid.
Paragraph 12 of the originating motion states that to date, the plaintiff has been cooperative with the defendant in the privilege review process, has been working towards a timeline set by the defendant for the privilege review and provided provisional claims in tranches. There is no evidence to suggest that there is a risk of any of the matters in s 124(2)(a), (b) or (c) of the Act eventuating on the facts.
In paragraph 14 of the originating motion, the plaintiff contends that there cannot be serious prejudice to the conduct of IBAC’s investigation if the original date which the defendant had organised for GH to attend was 13 February 2020. Further, in paragraph 15, the plaintiff contends, given the timing of the events, the defendant’s decision to issue the immediate summons was to frustrate the process that the solicitors foreshadowed would be brought in the letter dated 7 February 2020 if IBAC proceeded with the examination without finalising issues of privilege.
Legislative Scheme
This proceeding principally concerned s 124 of the Act which reads:
124 Service of witness summons
(1) Subject to subsection (2), a witness summons must be served at a reasonable time, being not less than 7 days, before the date on which the person is required to attend or otherwise comply with the witness summons.
(2) The IBAC may issue a witness summons requiring immediate attendance by a person before the IBAC if the IBAC considers on reasonable grounds that a delay in the person's attendance is likely to result in—
(a) evidence being lost or destroyed; or
(b) the commission of an offence; or
(c) the escape of the person who is summoned; or
(d) serious prejudice to the conduct of the investigation to which the witness summons relates.
(3)A witness summons directed to a natural person must be served by serving a copy of the witness summons to the person personally.
Submissions
Plaintiff’s submissions
The plaintiff’s submissions emphasised that the Act does not abrogate natural justice or procedural fairness rules, other than to the extent it expressly does.
The plaintiff pointed out that Parliament has determined that a minimum of 7 days is required for a person to have a reasonable opportunity for a fair hearing when responding to a coercive examination.
There was also a risk that IBAC may expressly or indirectly rely on documents seized from GH during the conduct of the examination. IBAC could have issued another 7 days summons, requiring GH to attend IBAC on 14 February 2020, or perhaps depending on how the 7 days were counted on 17 February,[5] in either event only one day or a few days after the original date scheduled for examination. Instead IBAC issued an immediate witness summons without identifying the basis for its issue. The power in s 124(2) of the Act could only be used for the purpose for which it was conferred as was demonstrated by recent High Court decision in Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions[6] in which a decision to conduct a witness examination was set aside.
[5]Waterfront Place Pty Ltd v Minister for Planning [2019] VSCA 156.
[6](2018) 361 ALR 23.
The defendant’s submissions
IBAC submitted that commencing on 30 January 2020, it had tried to serve GH with the 7 day summons for GH’s examination on 13 February 2020. GH’s attendance on that date was important for the effective conduct and sequencing of steps in the investigation. The affidavit of its Principal Investigator described those attempts at service and supported the conclusion that GH had evaded service for a week. IBAC then obtained an order for substituted service of an immediate witness summons. That power was exercised because IBAC considered that delaying GH’s attendance was likely to result in serious prejudice to the conduct of its investigation for which witnesses had been scheduled for the week of the 10 February.
IBAC’s grounds for issuing an immediate attendance summons were described by IBAC’s Principal Investigator in their affidavit. She stated that the Deputy Commissioner issued the summons:
(a) being satisfied that it was reasonable to do so having regard to the evidence or intelligence value of the information to be obtained from [GH], [GH’s] age and any potential mental impairment;
(b) considering that a delay in [GH’s] attendance was likely to result in serious prejudice to the conduct of the investigation to which the summons related.
IBAC’s Principal Investigator stated that the serious prejudice that was likely to occur to the investigation included:
(a) the inability to conduct other investigative activities in a timeframe appropriate to the seriousness of the investigation;
(b) the effect on the time critical sequence of IBAC’s proposed investigative activities; and
(c) likelihood of collusion between witnesses and potential witnesses.
Section 124(2)(c) of the Act provides for the exercise of the power when IBAC considers on reasonable grounds that a delay in the person’s attendance is likely to result in serious prejudice to the conduct of the investigation to which the summons relates.
Counsel for the defendant referred to the judgment of Gordon J in Prior v Mole[7] in submitting that the existing of reasonable grounds, while an objective matter, involves an element of ‘predictive opinion’ and judgment. It also referred to the judgment of Wigney J in Carattiv Commissioner of the Australian Federal Police[8] concerning challenges to the existence of statutory preconditions such as ‘reasonable grounds’ that:
An applicant who challenges an issuing officer’s decision to issue a warrant bears the onus of proving that the information before the issuing officer was not capable of establishing reasonable grounds for entertaining the relevant suspicion… That is a ‘difficult and exacting’ task… A court is not entitled to substitute its own opinion on whether there were reasonable grounds for the opinion of the issuing officer. ..The applicant must establish that there was an absence of ‘foundational facts’ from which the issuing officer might entertain the relevant suspicion on reasonable grounds...
An appeal from his Honour’s judgment was dismissed.[9] That passage emphasises two points of relevance. One, that this is a judicial review proceeding under Order 56 and it is not for this court to form its own view about whether there is likely to be serious prejudice to the conduct of the investigation for the purposes of the power contained in s 124(2)(d) of the Act. The second thing is that the onus is on the GH to establish the case.
[7](2017) 261 CLR 265 at [98] –[101].
[8][2016] FCA 1132 at [166].
[9]Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177.
Counsel for the defendant submitted that IBAC’s Principal Investigator’s open affidavit demonstrated that IBAC had prepared in an orderly way to examine the plaintiff on 13 February 2020 as part of its planning of the investigation. It was ready by 30 January 2020 to serve GH with a 7 day summons under s 124(1) of the Act. The likelihood of delay and consequent serious prejudice to the investigation, so it was submitted, if IBAC had to issue the summons 7 clear days before the examination was due to GH’s evasion of service which prevented IBAC from being able to serve the initial 7 days summons in time.
The defendant submitted that the plaintiff was not entitled to receive more information about the basis of the summons and relied on the judgment of Brennan J sitting as a member of the Full Federal Court in WA Pines Pty Ltd v Bannerman.[10]
[10](1980) 41 FLR 175 at 182.
There was some discussion as to whether, if GH had responded and immediately attended IBAC’s offices on Monday this week, GH would have been sent away until Thursday 13 February, the scheduled date. Counsel for IBAC contended that I should not assume that to be the case and that at least some initial examination of GH may have commenced. I do not consider this point to be critical.
GH contended that the immediate attendance summons was IBAC’s response to irritation, caused by its view that GH had evaded service. There is a letter of 10 February 2020, this Monday, from IBAC’s lawyer to GH’s lawyers which says:
Given [GH’s] persistent efforts to avoid service of the IBAC summons the summons that was to be served on [GH] requiring [GH’s] attendance on 13 February has now lapsed and IBAC has issued a new summons requiring [GH’s] immediate attendance. IBAC’s also obtained an order for substituted service on [GH’s] solicitor. A copy of this order is enclosed.
Read as a whole, I consider that paragraph rather suggests that the reason for the immediate attendance summons was more due to IBAC’s desire to have GH attend during this week, and particularly on 13 February 2020, rather than any irritation.
In addition to IBAC’s Principal Investigator’s affidavit, there are two lengthy affidavits of the plaintiff’s solicitor, who exhibits correspondence and relevant documents. I have taken all those into account.
Analysis of first ground
This is an interlocutory application. As mentioned, the first ground was, question of the power to issue the immediate attendance summons. The Court has wide discretion in public law matters to grant interlocutory injunctions and stays. GH needs to provide a reason for the grant of such orders. The requirement is sometimes described as a serious question to be tried and that the balance of convenience supports making the order. In this case, even an interim order would have a final consequence in that if the Court granted a stay, then the requirement for immediate attendance would be stopped. However, that effect does not elevate to a higher standard the plaintiff’s burden of showing a good reason or a serious question to be tried justifying the issuing of the stay.[11]
[11]Bradto Pty Ltd v Victoria (2006) 15 VR 65.
In this case on the basis of IBAC’s Principal Investigator’s affidavit, IBAC considered that the precondition in s 124(2)(d) exists or existed, that being that a delay in GH’s attendance was likely to result in serious prejudice to the conduct of the investigation to which the witness summons relates. The fact appears that GH’s attendance had been scheduled for at least a few weeks previously. IBAC’s conclusion about the likelihood of serious prejudice to the investigation, as Gordon J said in Prior v Mole,[12] involves a predictive opinion or judgment. I place weight on the fact that the Deputy Commissioner and a principal investigator consider that there was a likelihood of such serious prejudice.
[12](2017) 261 CLR 265.
IBAC offered to provide me with a further affidavit that was said to contain further material justifying IBAC’s conclusion. I declined that offer because it could not be made available to the plaintiff’s counsel without at least one of them giving an undertaking not to disclose its contents. Senior counsel for the plaintiff declined to give that undertaking, as she was certainly entitled to do, as it must be left with counsel to make their own judgement as to whether such an undertaking should be given. Often counsel will find themselves unable to give such an undertaking if they are to perform their duties to their client. This was such a case. So I declined to receive the affidavit.
Be that as it may, the onus is still on the plaintiff to establish something like a serious question to be tried that the reasonable grounds identified in IBAC’s Principal Investigator’s affidavit had no basis or rational basis, or did not exist.
It might be asked what harm would be done if the examination of GH was deferred for a week or so and a further 7 days summons issued. However, I am not persuaded that the Court, on the material before it, should directly or indirectly form its own opinion about matters addressed by the Deputy Commissioner and Principal Investigator. These are matters that involve their prediction as to the likely consequences of the postponing of GH’s examination. They are charged with the conduct of this investigation and consider it important to conduct GH’s examination during this week and particularly on 13 February 2020. I do not consider that a serious question has been made out in respect of the first ground – the ultra vires argument.
Analysis of second ground
This second ground turns on the contention that GH will be asked to give evidence before GH has received back all the documents seized and before issues of privilege have been determined. IBAC stated in the hearing that it will not be relying on any documents seized from GH where privilege is claimed for the purposes of the examination. GH’s barristers have pointed out that privilege must be claimed at the hearing and that GH may be in a position where GH is not able to claim that privilege.
I do not consider there is any general common law requirement that investigators exercising statutory power must notify a person being questioned about the grounds of the investigation; see Cornall v AB (A Solicitor),[13] on which the defendant relies. The plaintiff referred to the Privy Council decision in Mahon v Air New Zealand,[14] but I do not see that that takes the matter further. The fact of the matter is that the identification of what questions GH will be asked and what disadvantage GH will be under by not having received the documents back are very much speculative. If GH is unable to answer questions without reference to material, GH can say so. If then IBAC engages in any conduct that seeks to force GH to answer, then that may well have consequences for the validity of the investigation and the question.
[13][1995] 1 VR 372.
[14](1980) 50 ALR 193.
I do not consider that a serious question to be tried, or any other reason justifying the stay, are established in respect of ground 2.
Balance of convenience
If I had concluded that there was a serious question to be tried on either ground, I consider that the balance of convenience would not have favoured the grant of a stay. No balance of convenience factors were particularly emphasised, but IBAC has scheduled the hearings for this week. The date by which the privilege issues concerning documents will be decided is unclear. I am not persuaded there is any balance of convenience factor that justify the stay.
Conclusion
The stay sought in paragraph 3 of the plaintiff’s summons is refused.
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