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HJ (a pseudonym) v IBAC

HJ (a pseudonym) v IBAC

Case [2021] VSCA 200 21 July 2021

Jurisdiction

Statutory Interpretation

Right to Privacy

Administrative Law

Human Rights Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0091

HJ (a pseudonym)*	First Applicant
PQ (a pseudonym)	Second Applicant
v
INDEPENDENT BROAD‑BASED ANTI‑CORRUPTION COMMISSION	Respondent

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JUDGES:	BEACH, KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 June 2021
DATE OF JUDGMENT:	21 July 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 200*

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PRACTICE AND PROCEDURE – Test for determining when court will release party from undertaking given to court – Whether judge erred in finding that test is what is in interests of justice and that change in circumstances is only an example of when interests of justice may warrant party being released – Leave to appeal granted, appeal dismissed – Adam P Brown Male Fashions Pty Ltdv Philip Morris Inc (1981) 148 CLR 170 applied, Mulvany v Hive & Wellness Australia Pty Ltd [2019] VSCA 122 explained.

LAW ENFORCEMENT – Search warrants – Procedure for inspection and seizure of documents subject to claims of privilege or irrelevance – Whether judge misconstrued power to inspect – Leave to appeal granted, appeal dismissed – Independent Broad‑Based Anti‑Corruption Commission Act 2011 ss 4, 15, 16, 40, 60, 91, 94, 97, 100, 101.

* This is an edited version of the judgment that was published to the parties on a confidential basis. This judgment refers to previous judgments and orders in the Trial Division and the Court of Appeal which were published to the parties on a confidential basis and which remain confidential.

HUMAN RIGHTS – Right to privacy in s 13(a) of Charter of Human Rights and Responsibilities Act 2006 – Construction of s 91 of Independent Broad‑Based Anti‑Corruption Commission Act 2011 compatibly with right to privacy in accordance with s 32 of Charter – Whether judge erred in applying Charter – Leave to appeal granted, appeal dismissed – Independent Broad‑Based Anti‑Corruption Commission Act 2011 ss 91, 97, 100, 101 – Charter of Human Rights and Responsibilities Act 2006 ss 3, 4, 7, 13, 32, 38.

PRACTICE AND PROCEDURE – Interlocutory injunction – Whether judge erred in concluding that requirements for granting interlocutory injunction not satisfied – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr H Borenstein QC with Mr C Tran	Slater and Gordon Lawyers
For the Respondent	Ms K A O’Gorman	Independent Broad‑Based Anti‑Corruption Commission

BEACH JA
KYROU JA
KAYE JA:

Introduction and summary

The respondent (‘IBAC’) is conducting an own-motion investigation into matters involving HJ. PQ is a person of interest in the investigation.

A judge of the Trial Division issued two search warrants pursuant to s 91 of the Independent Broad‑Based Anti‑Corruption Commission Act 2011 (‘IBAC Act’): one for execution at HJ’s premises and the other for execution at PQ’s premises. A day later, IBAC executed both warrants.

Later in the same month, HJ commenced a judicial review proceeding in the Trial Division against IBAC.[1] In its originating motion, HJ sought: an order in the nature of certiorari quashing IBAC’s decision to conduct the investigation; a declaration…

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 HJ (a pseudonym) v IBAC

Details

AGLC: HJ (a pseudonym) v IBAC [2021] VSCA 200
Case: [2021] VSCA 200
Decision Date: 21 July 2021

CaseChat Overview and Summary

HJ, a pseudonymous appellant, sought to appeal a decision made by the Court of Appeal of the Supreme Court of Victoria, which dismissed his appeal against an order made by the Trial Division of the Supreme Court. The primary matter involved was a search warrant issued by the Independent Broad-based Anti-corruption Commission (IBAC) which authorised the inspection and seizure of documents from HJ's property. The Court of Appeal had previously dismissed HJ's appeal regarding the search warrant, and now HJ sought further review of that decision.

The legal issues before the Court of Appeal included whether the judge erred in determining the test for releasing a party from an undertaking given to the Court, specifically whether the change in circumstances alone is sufficient or if the interests of justice must be weighed. Another issue was whether the judge misconstrued the power to inspect documents under the Independent Broad-Based Anti-Corruption Commission Act 2011. Furthermore, the Court needed to determine whether the judge erred in applying the Charter of Human Rights and Responsibilities Act 2006 in the context of the right to privacy, and whether the requirements for granting an interlocutory injunction were met.

The Court of Appeal held that the judge did not err in finding that the test for releasing a party from an undertaking is based on the interests of justice, and a change in circumstances is merely an example of when those interests may warrant release. The Court found no error in the judge's interpretation of the power to inspect documents under the IBAC Act. Regarding the application of the Charter of Human Rights and Responsibilities Act 2006, the Court held that the judge did not err in construing the relevant sections compatibly with the right to privacy. The Court also refused leave to appeal regarding the interlocutory injunction, finding that the judge's conclusion was correct.

No further orders were made by the Court of Appeal.

Orders