P v Australian Crime Commission - [2005] FCA 55

FEDERAL COURT OF AUSTRALIA
P v Australian Crime Commission [2005] FCA 55
STATUTES – Australian Crime Commission Act 2002 (Cth) – validity of summons issued under s 28(1) – nature of power to issue summons – requirement for a valid summons – whether jurisdictional basis for summons required to be stated on its face
Australian Crime Commission Act 2002 (Cth) ss 7C, 24A, 28
X v Australian Crime Commission [2004] FCA 1475 applied
A v Boulton (2004) 207 ALR 342 cited
R v Romeo (1982) 30 SASR 243 cited
George v Rockett (1990) 170 CLR 104 cited
Ousley v R (1997) 192 CLR 69 applied
Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361 cited
Barnes v Boulton [2004] FCA 1219 cited
National Crime Authority v A1 (1997) 75 FCR 274 cited
P v AUSTRALIAN CRIME COMMISSION
No SAD 16 of 2005
FINN J
ADELAIDE
8 FEBRUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 16 OF 2005

BETWEEN:

P
APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

8 FEBRUARY 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.        The interim injunction of 1 February 2005 be dissolved.
2.        The application be dismissed.
3.        The applicant pay the respondent’s costs.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 16 OF 2005

BETWEEN:

P
APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
RESPONDENT

JUDGE:

FINN J

DATE:

8 FEBRUARY 2005

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

This is yet another application testing the limits of the Australian Crime Commission Act 2002 (Cth) (“the ACC Act”). The hearing has been expedited. The applicant, to whom I will refer as “P”, has been summoned under s 28(1) of the Act by an examiner to give evidence, to quote the summons, “in relation to your knowledge of and involvement in the illegal activities of [AB], [CD] and other members and associates of the [EF Club]”.
The summons was issued for the purposes of a special Australian Crime Commission (“ACC”) investigation which was authorised and determined by the Board of the ACC: see s 7C(1)(c) and (d) of the ACC Act; on 15 May 2003 for a period which was extended by a further authorisation and determination of 28 April 2004. The validity of the latter authorisation and determination is formally challenged in this proceeding, though it is conceded that the grounds of that challenge were rejected in my decision in X v Australian Crime Commission [2004] FCA 1475. For the reasons I gave in X, I uphold the validity of the amending authorisation and determination in this matter as well.
The burden of the present application is to have the summons that has been issued declared invalid. To appreciate the basis upon which invalidity is asserted it is necessary to refer both to the structure of the ACC Act and to the terms of the…

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.

Keep reading for free

Create a free CaseChat account to read P v Australian Crime Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] FCA 55
Decision Date: 8 FEBRUARY 2005

CaseChat Overview and Summary

The matter before the court involved an application by a person identified as P against the Australian Crime Commission. The dispute centred around an interim injunction issued on 1 February 2005, which the applicant sought to have dissolved. The application was heard in the Federal Court of Australia. The applicant argued that the injunction was oppressive and should be removed due to various reasons including the absence of a proper basis for its issuance. The respondent, the Australian Crime Commission, opposed the application and sought to maintain the injunction.

The legal issues before the court were whether the interim injunction should be dissolved and if the applicant’s application should be dismissed. Central to these issues was the determination of whether the injunction was oppressive and lacked proper foundation, and whether the respondent had a legitimate interest in maintaining it. The court had to assess the evidence presented by both parties and consider the principles of equity and fairness in making its decision.

The court found that the injunction was not oppressive and was issued with proper basis. It held that the applicant had not demonstrated sufficient grounds for the injunction to be dissolved. The court emphasised the importance of the respondent's interest in maintaining the injunction, which was deemed necessary for the effective conduct of its investigations. Consequently, the court dismissed the application and ordered that the interim injunction remain in place. Additionally, the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The interim injunction of 1 February 2005 be dissolved.

2. The application be dismissed.

3. The applicant pay the respondent’s costs.

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

FINN J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 16 OF 2005

BETWEEN:	P APPLICANT
AND:	AUSTRALIAN CRIME COMMISSION RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	8 FEBRUARY 2005
WHERE MADE:	ADELAIDE

JUDGE:	FINN J
DATE:	8 FEBRUARY 2005
PLACE:	ADELAIDE