Hogan v Australian Crime Commission & Ors - [2009] HCATrans 252

[2009] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S170 of 2009

B e t w e e n -
PAUL HOGAN
Applicant
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
Third Respondent
Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 OCTOBER 2009, AT 10.50 AM

MR J.T. GLEESON, SC: May it please the Court, I appear with MR F. KUNC, SC and MR P. KULEVSKI for the applicant. (instructed by Robinson Legal)

MR T.D. BLACKBURN, SC: May it please the Court, I appear with my learned friend, MR T. MALTZ, for the respondents. (instructed by Blake Dawson Lawyers)

GUMMOW J: Yes, Mr Blackburn. There is a submitting appearance from the first and second respondents, the Australian Crime Commission and the Chief Executive Officer of that body. We would be assisted to hear first from you, Mr Blackburn.

MR BLACKBURN: May it please the Court. If the Court pleases, in our submission, special leave should be refused on two basic grounds. The first is that the applicant has not demonstrated that the failure to make or maintain section 50 orders over this material produced or even come close to, in our submission, a miscarriage of justice that requires a grant of special leave.

GUMMOW J: It requires what?

MR BLACKBURN: Grant of special leave.

GUMMOW J: A miscarriage of justice?

MR BLACKBURN: It does not come close, your Honour, in our submission, to a miscarriage of justice that would require a grant of special leave.

GUMMOW J: Where do you get that expression “miscarriage of justice” from?

MR BLACKBURN: The Judiciary Act, your Honour. The second ground that we advance is that when one really looks at the arguments that are advanced by the applicant in relation to supposed points of general importance, there is no point of general importance that arises out of the circumstances of this case, in our submission. The favoured point, as far as we can see, of the applicant is that there is an issue to be teased out of section 50 as to whether an appeal in relation to a section 50 order gives rise House v The King principles or whether it is just a reconsideration of jurisdictional facts contained in the section.

GUMMOW J: The fact is this Court has never looked at section 50 of the Federal Court Act, has it?

MR BLACKBURN: Not it has not, your Honour, that is so, but that seems to be the principal point that is advanced and, in our submission, your Honours, it is a point that is illusory for this reason, because even if technically there is an issue about the proper construction of section 50, does an appeal from a section 50 order require the application…

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] HCATrans 252
Decision Date

CaseChat Overview and Summary

Hogan (the applicant) sought judicial review of decisions made by the Australian Crime Commission (ACC) and its officers (the respondents). The applicant alleged that the ACC had breached its duty of disclosure and acted unfairly in its investigation into alleged criminal conduct by the applicant. The matter came before the High Court of Australia.

The primary legal issues before the High Court were whether the ACC had a duty to disclose certain information to the applicant during its investigation, and whether the ACC's conduct in the investigation was procedurally unfair. Specifically, the court considered the scope of the ACC's investigative powers and the extent to which these powers were constrained by principles of procedural fairness.

Gummow and Heydon JJ found that the ACC, in exercising its investigative powers under the relevant legislation, was not subject to a general duty to disclose all information gathered during an investigation to a person suspected of criminal conduct. Their Honours reasoned that the statutory framework governing the ACC's operations contemplated a degree of confidentiality in its investigations to ensure their effectiveness. The court also determined that the applicant had not demonstrated a breach of procedural fairness, as the ACC had afforded the applicant opportunities to respond to allegations and had not acted in a manner that was demonstrably unfair or biased.

The High Court dismissed the application for judicial review.

Orders