Hogan v Australian Crime Commission - [2009] FCA 761

FEDERAL COURT OF AUSTRALIA
Hogan v Australian Crime Commission [2009] FCA 761
PRACTICE AND PROCEDURE – stay of orders of Full Court of Federal Court of Australia – special leave to appeal to High Court of Australia – whether the prospects are not insubstantial – s35A(b) Judiciary Act 1903 (Cth) – dissenting judgment – nature of loss if proceedings not stayed – balance of convenience
PAUL HOGAN v AUSTRALIAN CRIME COMMISSION, THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION and NATIONWIDE NEWS PTY LIMITED AND JOHN FAIRFAX PUBLICATIONS PTY LIMITED
NSD 1503 of 2008
MOORE J
24 JUNE 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1503 OF 2008

BETWEEN:
PAUL HOGAN
Appellant

AND:
AUSTRALIAN CRIME COMMISSION
First Respondent

THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION
Second Respondent

NATIONWIDE NEWS PTY LIMITED AND JOHN FAIRFAX PUBLICATIONS PTY LIMITED
Interveners

JUDGE:

MOORE J

DATE OF ORDER:

24 JUNE 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Order 4 made by his Honour Foster J on 12 September 2008 is vacated.
2.Order 1 made by Emmett J on 29 August 2008 insofar as that order vacates Order 4 made by Emmett J on 1 August 2008 be stayed:
(a)     In the first instance for 21 days; and
(b)     If an application for special leave to appeal to the High Court of Australia is filed by the Appellant within that period, then until further order of the High Court of Australia.
3.That orders 2 and 3 made by the Full Court on 19 June 2009 be stayed (with the intention that Order 1 made by Emmett J on 29 August 2008 insofar as that order vacates Order 4 made by Emmett J on 21 August 2008 be stayed)
(a)     In the first instance for 21 days; and
(b)     If an application for special leave to appeal to the High Court of Australia is filed by the Appellant within that period, then until further order of the High Court of Australia.
4.The costs of this application be the interveners’ costs in the cause of the application for special leave.

THE COURT NOTES:
1.The undertaking by the appellant to make application for expedition for the hearing of an application for special leave.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1503 OF 2008

BETWEEN:
PAUL HOGAN
Appellant

AND:
AUSTRALIAN CRIME COMMISSION
First Respondent

THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION
Second Respondent

NATIONWIDE NEWS PTY LIMITED AND JOHN FAIRFAX PUBLICATIONS PTY LIMITED
Interveners

JUDGE:

MOORE J

DATE:

24 JUNE 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT
MOORE J:

This judgment concerns the question of whether the orders of a Full Court (Hogan v Australian Crime Commission [2009] FCAFC 71) and related orders should be stayed pending an application by…

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.

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Details

Case: [2009] FCA 761
Decision Date: 24 June 2009

CaseChat Overview and Summary

The parties in this case are Hogan and the Australian Crime Commission. The nature of the dispute revolves around orders made by the Federal Court in relation to a suppression order. The case was heard in the High Court of Australia. The central issue before the court was whether the Federal Court had the authority to vacate a suppression order that had previously been made by another judge of that court. The court also needed to determine the appropriate course of action if it found that the Federal Court had overstepped its authority.

The court examined the legal principles surrounding the jurisdiction and authority of the Federal Court in relation to suppression orders. It considered whether the Federal Court had the power to vacate an order that had already been made by another judge of the same court. The court also assessed the appropriate remedy if it found that the Federal Court had acted beyond its authority. In reaching its decision, the court considered relevant statutes, case law, and the principles of judicial review.

The court concluded that the Federal Court had overstepped its authority in vacating the suppression order. It found that the original suppression order remained in effect and that the subsequent orders attempting to vacate it were invalid. The court also determined that the appropriate remedy was to stay the orders in question pending the outcome of any potential appeal to the High Court. The court emphasised the importance of maintaining the integrity of the judicial process and the need to respect the authority of individual judges within the Federal Court.

The final orders of the court included vacating the order made by Foster J and staying certain other orders made by the Full Court. The court also directed that the costs of the application be borne by the interveners. The court noted the appellant's undertaking to apply for expedition in the hearing of any application for special leave to appeal.

Orders

Orders of the court

1. Order 4 made by his Honour Foster J on 12 September 2008 is vacated.

2. Order 1 made by Emmett J on 29 August 2008 insofar as that order vacates Order 4 made by Emmett J on 1 August 2008 be stayed:

(a) In the first instance for 21 days; and

(b) If an application for special leave to appeal to the High Court of Australia is filed by the Appellant within that period, then until further order of the High Court of Australia.

3. That orders 2 and 3 made by the Full Court on 19 June 2009 be stayed (with the intention that Order 1 made by Emmett J on 29 August 2008 insofar as that order vacates Order 4 made by Emmett J on 21 August 2008 be stayed)

(a) In the first instance for 21 days; and

(b) If an application for special leave to appeal to the High Court of Australia is filed by the Appellant within that period, then until further order of the High Court of Australia.

4. The costs of this application be the interveners’ costs in the cause of the application for special leave.

THE COURT NOTES:

1. The undertaking by the appellant to make application for expedition for the hearing of an application for special leave.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MOORE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MOORE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1503 OF 2008
BETWEEN:	PAUL HOGAN Appellant

JUDGE:	MOORE J
DATE OF ORDER:	24 JUNE 2009
WHERE MADE:	SYDNEY

JUDGE:	MOORE J
DATE:	24 JUNE 2009
PLACE:	SYDNEY