FEDERAL COURT OF AUSTRALIA Campbell v Australian Crime Commission [2013] FCA 690 Citation: Campbell v Australian Crime Commission [2013] FCA 690 Parties: PETER CAMPBELL and HENRY EDWARD ALEXANDER SMART v AUSTRALIAN CRIME COMMISSION File number: NSD 1330 of 2013 Judge: BUCHANAN J Date of judgment: 10 July 2013 Catchwords: ADMINISTRATIVE LAW – judicial review – application for urgent interlocutory injunction to stay examination on summons by Australian Crime Commission – whether prima facie case established – whether balance of convenience favours the grant of injunction Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Crime Commission Act 2002 (Cth) Date of hearing: 10 July 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 20 Solicitor for the Applicants: Mr D Miralis, Nyman Gibson Stewart Solicitor for the Respondent: Mr A Markus, Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1330 of 2013 BETWEEN: PETER CAMPBELL First Applicant HENRY EDWARD ALEXANDER SMART Second Applicant AND: AUSTRALIAN CRIME COMMISSION Respondent JUDGE: BUCHANAN J DATE OF ORDER: 10 JULY 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for interlocutory relief made orally on 10 July 2013 is dismissed. 2. The originating application filed on 10 July 2013 is transferred to the Federal Circuit Court of Australia. 3. The costs of the application for interlocutory relief be the respondent's costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1330 of 2013 BETWEEN: PETER CAMPBELL First Applicant HENRY EDWARD ALEXANDER SMART Second Applicant AND: AUSTRALIAN CRIME COMMISSION Respondent JUDGE: BUCHANAN J DATE: 10 JULY 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This afternoon an application was made for urgent interlocutory relief. The application was made orally. The relief is sought in proceedings which were commenced by filing an originating application for judicial review. The application for judicial review is directed to a decision of an officer of the respondent that the applicants be summonsed to appear at the Australian Crime Commission ("the ACC") for examination pursuant to s 28(1) of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). 2 The grounds for the application were expressed in terms which reflect the provisions of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). That is to say, it was stated that the decision was not authorised, that it failed to take relevant considerations into account, that it took irrelevant considerations into account, that it involved an exercise of power for a purpose other than a purpose for which the power is conferred, and it involved an error of law. No particulars of those contentions were given in the originating process. My attempts to achieve any form of particularisation of the contentions was unsuccessful. 3 The orders which were sought by the originating process were: that the summonses be set aside; a declaration that each of the decisions was unlawful; a stay of the examinations; and an order suppressing the names of the applicants, which were to be replaced by pseudonyms. 4 It was the applications for a stay and an order which suppressed the names of the applicants which were advanced orally as the orders sought on an urgent interlocutory basis, and it is those two claims for immediate relief with which I shall deal. 5 I am not persuaded by anything which was said in the proceedings that it is necessary or appropriate to suppress the names of the applicants and I decline to make any order to that effect. In part, that is because I do not think, as will appear from the balance of these reasons, that any respectable case has been made out to impose any form of restraint upon the examinations which are in prospect. The applicants have chosen to approach this Court. Normally, proceedings in this Court are conducted in public. I cannot see a reason why that position should be altered in the circumstances of the present case. 6 Section 24A of the ACC Act provides that an examiner may conduct an examination for the purposes of a special ACC operation/investigation. The term "special ACC operation/investigation" is defined in s 4 of the ACC Act. A summons was issued to each of the applicants on 4 July 2013, requiring them to appear to give evidence in a special ACC operation/investigation about identified "federally relevant criminal activity", a term which is also defined in s 4 of the ACC Act. To each summons was attached a copy of an instrument made under s 7C of the ACC Act. The instrument is entitled "Australian Crime Commission Special Investigation Authorisation and Determination (Targeting Criminal Wealth) 2011". It authorises the respondent to investigate the matter identified in schedule 1 thereto. The purpose of the summons appears, on its face, to relate to a matter authorised by the ACC Act. 7 Section 28 of the ACC Act, under which the summonses were issued, provides in s 28(1): 28 Power to summon witnesses and take evidence (1) An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons. 8 It is s 28(1) which is the focus of the originating application for judicial review. In particular, the details of claim are identified in the following terms: The Applicant is aggrieved by the decision because: 1. The Respondent failed to have regard or proper regard to s 28(1) of the Australian Crime Commission Act 2002 when issuing the summonses. 2. The Applicants will be required to attend and give evidence under compulsion at a hearing conducted by the Respondent without the usual protections of the criminal justice system and specifically without the protections of any privileges that arise under the common law other than legal professional privilege. 9 It is difficult to see what is intended by the suggestion that the respondent failed to have regard or proper regard to s 28(1), which appears to me merely to provide a power. During the course of argument, reference was made to s 28(1)(a). That requires that before issuing a summons under subsection (1), an examiner must be satisfied that it is reasonable in all the circumstances to do so and record in writing the reasons for the issue of the summons. The summonses issued to the applicants record that the examiner was satisfied that it is reasonable to issue those summonses and that the reasons for doing so have been recorded in writing. 10 During the course of argument, a complaint was made that the respondent has declined to provide a copy of the reasons recorded by the examiner. However, as was pointed out in submissions for the respondent, the normal obligation to furnish a statement of reasons which arises under s 13 of the ADJR Act is, by Schedule 2(ea) of the ADJR Act, rendered inapplicable in the case of decisions under the ACC Act in connection with intelligence operations. 11 It appears, from the limited material which was before me on the present application, that the applicants attended the premises of the respondent in Sydney on Saturday 6 July 2013, each accompanied by a solicitor. The discussions which then occurred lead to an adjournment of the examination until today. Each of the applicants is a foreign national. Each is in Australia on a tourist visa. Each has apparently delayed departure from Australia in response to the summons. Each, however, desires to leave Australia without further participation in the interviews. I was told that the interviews had re-commenced this morning, but they have been suspended for the time being in the light of the application to this Court this afternoon. Evidence has been given that no further stay or adjournment of the examinations would, however, be granted unless an order was made by a Court to that effect. 12 During the course of the discussions on Saturday 6 July 2013, according to the evidence given on affidavit for the applicants, the examiner stated that there was no intention to charge or prosecute either of the applicants, whose evidence was sought as part of an investigation into "boiler room" activities. 13 On 9 July 2013, representations were made to the examiner by solicitors appearing for the applicants. In response, the examiner said the following: As I told your clients, the primary purpose of these examinations is to gather information and intelligence in connection with an investigation under the Determination into 'boiler room' operations rather than the gathering evidence [sic] for a criminal prosecution. Further, they (like every ACC examination witness) will be offered a 'blanket' protection against self incrimination [sic]. Providing they don't commit any offences against the ACC Act, the ACC has no plan to apprehend or charge them. I do not know what may or may not happen to them elsewhere as that is not the concern of the ACC. 14 Section 33 of the ACC Act provides remedies against false or misleading evidence. Section 34A of the ACC Act provides for remedies for contempt of the ACC if a person appearing as a witness at an examination: refuses or fails to take an oath or affirmation; or refuses or fails to answer a question; or refuses or fails to produce a document; or gives evidence which is knowingly false or misleading; or obstructs or hinders an examiner; or disrupts an examination. 15 However, subject to those matters, s 30(5) of the ACC Act provides that answers given by a witness who attends pursuant to a summons may not, if the witness claims the possibility of incrimination, be used against that person in a criminal proceeding or a proceeding for the imposition of a penalty, otherwise than for certain identified matters. It appears that each of the applicants has taken advantage of that protection. 16 During proceedings today, an undertaking was offered by the respondent that, if interlocutory orders were not made, the respondent would conduct the examination to which the applicants have been summonsed, but then seal the material until final resolution of the proceedings commenced by the originating application. That undertaking is subject to the respondent's intention to use the material in proceedings for contempt against the applicants, should they withhold their cooperation from the examiner. 17 In order to obtain any form of interlocutory relief of the kind which is sought at present, it is necessary for the applicants to make out at least a prima facie case for final relief. It is also necessary, if such a prima facie case can be established, to make out a sufficiently persuasive case that the balance of convenience favours the present grant of interlocutory relief. 18 In my view, neither of those tests have been met. No basis has been identified for the suggestion that the examiner or the respondent failed to have proper regard to s 28(1) of the ACC Act when issuing the summonses. No basis has been identified to satisfactorily support the contention that the applicants will be denied any protection which is available to them under the ACC Act or that the respondent or the examiner is likely to conduct the examinations in a manner which is not permitted by law. Neither has a basis been identified, in my view, which would support a conclusion, on the present applications, that the protections which are available in the ACC Act are inadequate or ones which are likely to be altered at any final hearing. 19 For those reasons, the application for interlocutory relief is dismissed. I propose to transfer these proceedings to the Federal Circuit Court of Australia. I was informed that similar proceedings had already been commenced in that court, and are listed for hearing on 2 August 2013. I see no reason to retain the originating application, which was filed today in this Court, in light of the fact that proceedings have already been commenced in the Federal Circuit Court of Australia. 20 The orders which I will make are: 1. The application for interlocutory relief made orally on 10 July 2013 is dismissed. 2. The originating application filed on 10 July 2013 is transferred to the Federal Circuit Court of Australia. 3. The costs of the application for interlocutory relief be the respondent's costs in the cause. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 12 July 2013