CXXXVIII v Commonwealth of Australia [2019] FCAFC 54

FEDERAL COURT OF AUSTRALIA

CXXXVIII v Commonwealth of Australia [2019] FCAFC 54 Appeal from: CXXXVIII v Australian Criminal Intelligence Commission & Anor [2018] FCCA 2400

File number: SAD 225 of 2018

Judges: LOGAN, BROMWICH and charlesworth jJ

Date of judgment: 3 April 2019

Catchwords: ADMINISTRATIVE LAW – summons and notice to produce issued under the Australian Crime Commission Act 2002 (Cth) – whether summons and notice to produce supported by a valid determination made in the exercise of the functions of the Board – power to authorise investigation into matters relating to federally relevant criminal activity – meaning of "investigation" – meaning of "federally relevant criminal activity" – limits on the subject matter of an investigation authorised and determined to be special – whether summons and notice to produce issued for the purpose of a special investigation that had in fact been constituted and that the Australian Criminal Intelligence Commission was in fact conducting ADMINISTRATIVE LAW – notice to produce issued under the Australian Crime Commission Act 2002 (Cth) – notice purporting to require the production of things in the recipient's possession, custody or control forthwith at the time and place of service – whether compliance impossible in respect of things not able to be produced immediately at the time and place of service – whether notice to produce issued in excess of authority – application of s 46 of the Acts Interpretation Act 1901 (Cth) – whether notice to produce capable of reading down APPEAL AND NEW TRIAL – question of fact and law conceded by respondent in proceedings before primary judge – whether primary judge committed appealable error by failing to grant the appellant declaratory relief on the conceded question