Mansfield v Australian Crime Commission [2003] FCA 1059

FEDERAL COURT OF AUSTRALIA

Mansfield v Australian Crime Commission [2003] FCA 1059

CRIMINAL INVESTIGATIONS – Australian Crime Commission Act 2002 (Cth) – examination for purposes of a special Australian Crime Commission operation/investigation – whether privilege against self-incrimination abrogated – whether legal professional privilege abrogated – proceedings pending against applicant examinee in Supreme Court under State Criminal Property Confiscation Act – whether examiner authorised to compel answers to questions which might result in contempt of court or other interference with the course of justice – whether principles explained in Port of Melbourne Authority v Anshun Pty Ltd of any relevance to applicant's predicament.

Australian Crime Commission Act 2002 (Cth), ss 4, 7A, 24A, 28, 30, 46B, 57 Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16(1)(b) Criminal Property Confiscation Act 2000 (WA), ss 16, 20, 43(3)(c), 79

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 considered Hamilton v Oades (1989) 166 CLR 486 considered Sorby v The Commonwealth (1983) 152 CLR 281 considered Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 referred to Commissioner of Taxation v De Vonk (1995) 61 FCR 564 followed NIGEL CUNNINGHAM SWIFT MANSFIELD v AUSTRALIAN CRIME COMMISSION W134 of 2003 CARR J 3 OCTOBER 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W134 OF 2003

BETWEEN: NIGEL CUNNINGHAM SWIFT MANSFIELD

Applicant

AND: AUSTRALIAN CRIME COMMISSION

Respondent

JUDGE: CARR J

DATE OF ORDER: 3 OCTOBER 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The decision of the examiner Mr James Bennett SC ("the Examiner") made by way of a ruling on 4 June 2003 in the course of an examination conducted under Division 2 of Part II of the Australian Crime Commission Act 2002 (Cth), being the ruling referred to on page 232 of the transcript of that examination, be referred to him for further consideration in the light of the accompanying reasons for judgment delivered today. 2. The applicant have liberty to apply on 48 hours notice should the Examiner (or any other examiner in his place) in the conduct of an examination of the type referred to in the accompanying reasons for judgment delivered today overrule any objection taken by the applicant to specific questions on the ground of legal professional privilege or on the ground that to compel such answers might constitute a real or substantial risk of interference with the course of justice in the "Confiscation proceedings" referred to in the accompanying reasons. 3. The application be otherwise stood over with liberty to apply generally.