JJ v Board of the Australian Crime Commission

[2010] FCAFC 143

FEDERAL COURT OF AUSTRALIA

JJ v Board of the Australian Crime Commission [2010] FCAFC 143

Citation:		JJ v Board of the Australian Crime Commission [2010] FCAFC 143
Appeal from:		Board of the Australian Crime Commission v JJ [2010] FCA 553
Parties:		JJ v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and JEFFREY ANDERSON
File number:		NSD 742 of 2010
Judges:		DOWSETT, COWDROY AND LOGAN JJ
Date of judgment:		24 November 2010
Date of hearing:	23 and 24 November 2010
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	5
Counsel for the Appellant:	Mr M Abbott QC with Mr T Cox
Solicitor for the Appellant:	Patsouris & Associates
Counsel for the Respondents:	Ms S Maharaj QC with Mr R Prince
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	NSD 742 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JJ
Appellant

AND:

BOARD OF THE AUSTRALIAN CRIME COMMISSION
First Respondent

AUSTRALIAN CRIME COMMISSION
Second Respondent

JEFFREY ANDERSON
Third Respondent

JUDGES:	DOWSETT, COWDROY AND LOGAN JJ
DATE OF ORDER:	24 NOVEMBER 2010
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The respondents’ application to tender further documents in the appeal be refused.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	NSD 742 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JJ
Appellant

AND:

BOARD OF THE AUSTRALIAN CRIME COMMISSION
First Respondent

AUSTRALIAN CRIME COMMISSION
Second Respondent

JEFFREY ANDERSON
Third Respondent

JUDGES:	DOWSETT, COWDROY AND LOGAN JJ
DATE:	24 NOVEMBER 2010
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

DOWSETT J:  

1. The respondents have applied for leave to tender a document entitled or, at least containing what are referred to as, “Facts, Contentions and Legal Submissions”.  The document was not tendered at trial, despite the appellant and respondents having the opportunity to tender it.  There is substantial discussion in the transcript of the trial relating to the non-tender of the document and the implications associated with that circumstance.

2. We note that the transcript is already part of the court record.  We are concerned that, from a public point of view, it will look curious that this case should have been disposed of without reference to what appears to have become a central document in the proceedings.  We are also concerned that interest in this case extends beyond the interests of the parties, and recognise that there is a substantial public interest in the matter being resolved in a way which will be satisfactory to the community as a whole.  On the other hand, the parties made deliberate and informed decisions as to the conduct of the matter at first instance, and those decisions were that the document not be tendered in evidence. 

3. The other matter to which considerable weight must be given is the assertion made by Mr Abbott that had the document been in evidence, he may have wished to cross-examine the examiner.  That assertion is not capable of being easily dismissed.  It seems to me to be quite likely that in the event that the document was tendered, he may have chosen to do so.  In those circumstances, we could only receive it into evidence if we were also to extend to him the opportunity to cross-examine, subject to relevance.  It is for that reason in particular that I would decline the application to tender the relevant document at this stage.  I am strengthened in that view by the fact that the parties made informed decisions not to tender the document at the trial with whatever inferences we eventually decide may be drawn from those decisions.  For those reasons, I would refuse the application.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        8 February 2011

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	NSD 742 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JJ
Appellant

AND:

BOARD OF THE AUSTRALIAN CRIME COMMISSION
First Respondent

AUSTRALIAN CRIME COMMISSION
Second Respondent

JEFFREY ANDERSON
Third Respondent

JUDGES:	DOWSETT, COWDROY AND LOGAN JJ
DATE:	24 NOVEMBER 2010
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

COWDROY J:

4I agree.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:        8 February 2011

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	NSD 742 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JJ
Appellant

AND:

BOARD OF THE AUSTRALIAN CRIME COMMISSION
First Respondent

AUSTRALIAN CRIME COMMISSION
Second Respondent

JEFFREY ANDERSON
Third Respondent

JUDGES:	DOWSETT, COWDROY AND LOGAN JJ
DATE:	24 NOVEMBER 2010
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

LOGAN J:

1. The absence of the document before the learned trial judge was as a result of deliberate forensic choice.  It would not be appropriate in those circumstances to receive the document now.  I agree with the presiding judge.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        8 February 2011