FEDERAL COURT OF AUSTRALIA Golding v Australian Crime Commission [2014] FCA 1450 Citation: Golding v Australian Crime Commission [2014] FCA 1450 Parties: SIMON GOLDING v AUSTRALIAN CRIME COMMISSION and WILLIAM MCLEAN BOLTON SUED IN HIS CAPACITY AS AN EXAMINER APPOINTED UNDER THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH) File number: QUD 534 of 2014 Judge: DOWSETT J Date of judgment: 31 October 2014 Catchwords: PRACTICE AND PROCEDURE – jurisdiction – Federal Court of Australia – originating applications – where the applicant seeks leave to file a proposed amended originating application – where the respondent applies for dismissal of the proceedings – where the applicant is charged with drug related offences and seeks damages for a purported compulsory examination conducted by the Australian Crime Commission – where the applicant's claim is based on so-called "common law rights" – whether the Federal Court of Australia has jurisdiction in respect of the claim pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth) – whether the application to amend should be refused for being pointless – whether the proceedings should be dismissed Legislation: Australian Crime Commission Act 2002 (Cth) Judiciary Act 1903 (Cth) Cases cited: LNC Industries Limited v BMW (Australia) Limited (1983) 151 CLR 575 X7 v Australian Crime Commission (2013) 248 CLR 92 Date of hearing: 31 October 2014 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondents: Mr G Del Villar Solicitor for the Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 534 of 2014 BETWEEN: SIMON GOLDING Applicant AND: AUSTRALIAN CRIME COMMISSION First Respondent WILLIAM MCLEAN BOLTON SUED IN HIS CAPACITY AS AN EXAMINER APPOINTED UNDER THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH) Second Respondent JUDGE: DOWSETT J DATE OF ORDER: 31 OCTOBER 2014 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. leave to file the proposed amended originating application be refused; 2. the originating application be dismissed; and 3. the applicant pay the respondents' costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 534 of 2014 BETWEEN: SIMON GOLDING Applicant AND: AUSTRALIAN CRIME COMMISSION First Respondent WILLIAM MCLEAN BOLTON SUED IN HIS CAPACITY AS AN EXAMINER APPOINTED UNDER THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH) Second Respondent JUDGE: DOWSETT J DATE: 31 OCTOBER 2014 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The applicant in these proceedings is presently charged with drug-related offences under Commonwealth legislation. The matter is listed for trial late next month. On 1 October 2014, the applicant filed an application, claiming declaratory relief concerning a purported compulsory examination conducted by the first respondent, (the "ACC") pursuant to the Australian Crime Commission Act 2002 (Cth) (the "Act"). For present purposes it is accepted that one aspect of that examination was rendered unlawful by the decision of the High Court in X7 v Australian Crime Commission (2013) 248 CLR 92. The examination is relevant to the criminal proceedings. It is not necessary that I go into the nature of that connection. ACC has applied to set aside the application. Today, the applicant has applied to substitute an amended originating application which seeks only damages in respect of the conduct of the investigation. In particular, he seeks: (i) Exemplary damages for the breach of the Applicant's fundamental common law right to silence and privilege against self-incrimination. and: (ii) Compensatory damages: The illegal questioning by the ACC Examiner undermined the Applicant's right to a fair trial. However, it was recently held that the unfairness caused to the Applicant is not so much as to engage the high standards of a stay of proceedings. Yet unfairness and prejudice caused to the Applicant's trial remains. As a measure to help counter the harm the Examiner has caused, namely, the unfairness and the complexity it creates, the Applicant seeks Damages in order to be able to pay a lawyer who is not limited by time and resource constraints as is his Legal Aid lawyer. 2 The respondent does not object in principle to such an amendment, save on the ground that it does not cure what is said to be an irremediable defect in the proceedings, namely that they are beyond the jurisdiction of this Court. The only basis upon which such jurisdiction might arise is s 39B(1A) of the Judiciary Act 1903 (Cth) (the "Judiciary Act") which provides: The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. 3 In LNC Industries Limited v BMW (Australia) Limited (1983) 151 CLR 575 at 581 - 582 the High Court discussed the meaning of s 39B(1A)(c) in light of earlier authorities. Their Honours said: It is true to say that a matter does not arise under a law made by the Parliament merely because the interpretation of the law is involved … . On the other hand, a matter may arise under a law of the Parliament, although the interpretation or validity of the law is not involved … . The conclusion reached by Latham CJ … and stated in a passage that has often been cited with approval, is "that a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law". Equally, there is a matter arising under a federal law if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth … . (Footnotes omitted.) 4 In the course of argument I enquired as to whether it could be said that in this case, ACC relied upon the authority conferred upon the examiner by the relevant legislation, and that this might be a basis for saying that the present proceedings arose under Commonwealth law. Counsel submitted that the decision in X7 established that no such defence is available. I accept that the last sentence in the above extract from LNC, commencing "Equally", has no application in the present case. In LNC the High Court continued as follows: When it is said that a matter will arise under a law of the Parliament only if the right or duty in question owes its existence to a law of the Parliament that does not mean that the question depends on the form of the relief sought and on whether that relief depends on federal law. A claim for damages for breach or for specific performance of a contract, or a claim for relief or breach of trust, is a claim for relief of a kind which is available under State law, but if the contract or trust is in respect of a right or property which is the creation of federal law, the claim arises under federal law. The subject matter of the contract or trust in such a case exists as a result of the federal law. 5 At p 582 their Honours addressed the facts of that case, concluding that the contracts in question were concerned with entitlements arising under regulations made pursuant to a statute. 6 It seems to me that the applicant bases his claim upon what are said to be common law rights. Such a claim does not come within the jurisdiction conferred by s 39B. I conclude that the matter is beyond the jurisdiction of this Court. 7 I have considered whether or not it may be possible to cross-vest, but no argument has been advanced as to the propriety or otherwise of that course. It may be that there are obstacles to my so doing. In those circumstances the position is that the applicant has indicated a clear intention to abandon his claim as initially commenced in this Court, and has sought to replace it with a claim which is not within jurisdiction. In those circumstances his application should be dismissed. I decline to allow the filing of the amended application on the ground that it is pointless, the matter being beyond jurisdiction. 8 The applicant is to pay the respondent's costs of the proceedings. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 26 February 2015