FEDERAL COURT OF AUSTRALIA
Lusty v EZJ25 [2025] FCA 1068
File number(s): NSD 632 of 2025 Judgment of: ABRAHAM J Date of judgment: 5 September 2025 Catchwords: CONTEMPT OF COURT – contempt – contempt of the Australian Criminal Intelligence Commission – contempt punishable as contempt of Federal Court – respondent in contempt by refusing to answer questions in examination – where respondent pleaded guilty – where contempt not subsequently purged Legislation: Australian Crime Commission Act 2002 (Cth) ss 7, 7A(a)-(c), 7C(2), 7C(3), 19A, 21A, 20, 21, 22, 28, 34A(a)(ii), 34B(1)(a), 34B(5), 46B
Federal Court of Australia Act 1976 (Cth) s 31
Federal Court Rules 2011 (Cth) pt 42
Cases cited: Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Anderson v BYF19 [2019] FCA 1959
Anderson v DKH18 [2018] FCA 1571
Anderson v DKH18 (No 2) [2019] FCA 1352
Anderson v GPY18 [2019] FCA 954
Anderson v XLVII [2015] FCA 19
Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24
Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809
Hannaford (an examiner under the Australian Crime Commission Act 2002) v HH [2010] FCA 1214; (2010) 205 A Crim R 366
Hannaford v HH (No 2) [2012] FCA 560; (2012) 203 FCR 501
Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277
Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90
Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494
Von Doussa v Owens (No 3) [1982] SASC 6369; (1982) 31 SASR 116
Wood, Honourable Justice v Galea [1995] NSWSC 100; (1995) 79 A Crim R 567
Wood v Staunton (No 5) (1996) 86 A Crim R 183
Division: General Division Registry: New South Wales National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 51 Date of hearing: [REDACTED] Counsel for the applicant Mr Williams Solicitor for the applicant Australian Government Solicitor Counsel for the respondent Mr Pace Solicitor for the respondent Crimcorp Defence Lawyers ORDERS
NSD 632 of 2025 BETWEEN: DAVID LUSTY, AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)
Applicant
AND: EZJ25
Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
5 SEPTEMBER 2025
THE COURT DECLARES THAT:
1.The respondent is guilty of seven counts of contempt of the Australian Criminal Intelligence Commission (ACIC) in that, on [REDACTED], when appearing as a witness at an examination before the applicant, he refused or failed to answer seven questions that he was required to answer by the applicant, contrary to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) (ACC Act).
THE COURT ORDERS THAT:
1.The respondent is sentenced to a term of imprisonment of 6 months to…
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- AGLC
- Lusty v EZJ25 [2025] FCA 1068
- Case
- [2025] FCA 1068
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the appropriate penalty for EZJ25's contemptuous behaviour during the ACIC examination. The court needed to determine whether the penalty should be a term of imprisonment, a fine, or some other form of punishment. Given that EZJ25 deliberately refused to answer questions despite being informed of the legal consequences, the court had to weigh the objective seriousness of the contempt against the subjective circumstances and the need for deterrence.
The court considered the deliberate nature of EZJ25's contempt and its impact on the ACIC's investigation. It found that EZJ25's refusal to answer questions undermined the effectiveness of the statutory scheme that authorised compulsory examinations. The court rejected EZJ25's arguments regarding the timing of the summons and the impact on his potential criminal proceedings, finding them to be unsubstantiated. The court also noted that the information sought could not be obtained through other means. Ultimately, the court imposed a term of imprisonment of 6 months, with 4 months to be served and the remainder suspended on the condition that EZJ25 be of good behaviour for 2 years.
The court ordered that EZJ25 be imprisoned for 4 months, with the custodial period running from a specified date in 2025 to a specified date in 2026. The remainder of the sentence was suspended, contingent on EZJ25 maintaining good behaviour for 2 years from the end of the custodial period. Additionally, a warrant for his committal was issued, and he was required to pay the applicant's costs of the application, to be agreed or assessed.
Orders
Orders of the court
1. The respondent is sentenced to a term of imprisonment of 6 months to be released after serving 4 months and the remainder of the sentence to be suspended on the basis that the respondent be of good behaviour for a period of 2 years.
2. The custodial period of 4 months’ imprisonment is to date from [REDACTED] 2025 to [REDACTED] 2026, following which the balance of the sentence is suspended with the period of good behaviour for 2 years commencing on [REDACTED] 2026 and expiring on [REDACTED] 2028.
3. A warrant for the respondent’s committal to prison be issued and with a copy of these Orders, be provided to Corrective Services NSW.
4. The respondent is to pay the applicant’s costs of the application to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
There is no prescribed or maximum penalty for a contempt of this nature. There are a range of penalties available: see Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277, in which the Full Court (French, Emmett and Dowsett JJ) at [55] citing Nicholson J in Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24 at [138], set out the range as follows, being to: (1) commit a contemnor to prison for an indefinite period of time; (2) to impose a fine for a wilful breach of an order or undertaking; (3) to impose a daily fine; (4) to order the sequestration of the assets of a contemnor; and (5) to suspend on condition any sentence of imprisonment that it might impose in respect to contempt.Consideration The respondent submitted that his case is unusual because despite a significant investigation from 2022, the respondent was not charged alongside [REDACTED] other individuals [REDACTED], and he was not brought before ACIC until six months after the arrest of the last individuals. He submitted that this impacted on his sentence in three ways: first, it validates the concerns of the respondent regarding any potential prejudice to impending criminal proceedings (given the assertions made about him as to his role/participation in alleged criminal offending); second, it supports the basis of his fears for his wellbeing and his family’s wellbeing from violence; and third, it undermines the applicant’s contention that the actual consequences of the contempt to the ACIC inquiry were of any significance. He submitted that the objective seriousness of the contempt falls toward the lower end of the spectrum for like offending and his powerful subjective features do not make him an appropriate vehicle for general deterrence. The respondent urged that a community-based order would do justice to the matter, or alternatively a short, fixed term of imprisonment may be imposed. As a starting point, it is plain the respondent’s contempt was deliberate. The respondent was informed of the consequences of his refusal to answer the questions and took that approach in a context where he received legal advice in relation to the examination. He was represented by a lawyer. He was aware of the obligations imposed on him by the Summons and the consequences of his actions. He refused to answer any questions from the outset, the first four of which related solely to him (and five of the seven questions). A refusal to answer questions undercuts the effectiveness of the statutory scheme which authorises those compulsory examinations: CRA20 at [41]. I accept the applicant’s submission that the failure to answer the questions impacted on the ACIC’s investigation. These reasons are necessarily written at a level of generality given the non-publication orders in place. The basis of the ongoing desire to question the respondent, and the context in which that occurs, is set out in the affidavit of Mr Halls. This was not undermined in cross-examination. For the same reasons, I do not propose to detail that evidence. In so far as the respondent suggests that the information sought by the questions could have been obtained by other means, Mr Halls did not accept the proposition. Relevantly, the evidence was that the questions asked were introductory and would have been followed by others. That can be readily accepted. The respondent’s submission, referred to above, about others having been arrested and the timing of the Summons relative to that, and the investigation has no foundation. It fails to grapple with the evidence of Mr Halls, and the nature of how an ongoing investigation may develop.