FEDERAL COURT OF AUSTRALIA

WY v National Crime Authority [2000] FCA 1332

ADMINISTRATIVE LAW – judicial review – proceedings purportedly instituted under      s 32(2) of the National Crime Authority Act 1984 (Cth) (“NCA Act”) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) – whether “prescribed notice” given under s 32(13) of the NCA Act – whether proceeding under NCA Act instituted too early – requirement that notice “state as mentioned in para 32A(2)(c)” – whether notice must be in writing – whether jurisdiction of the Court validly invoked under   s 32(2) of the NCA Act – whether application under ADJR Act properly struck out under         s 10(2) of the ADJR Act

National Crime Authority Act 1984 (Cth) ss 32, 32A

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 10(2)

ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197, cited

Ho v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274, cited

Repatriation Commission v Tuite (1992) 37 FCR 571, cited

Musson v Rodriguez [1953] AC 530, applied

David Grant & Co Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265, cited

Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1186, cited

Oguzhan v Minister for Immigration & Multicultural Affairs [2000] FCA 781, cited

WY v NATIONAL CRIME AUTHORITY

N 545 of 2000

BRANSON, NORTH & KATZ JJ

SYDNEY

19 SEPTEMBER 2000

THE COURT ORDERS THAT:

1.         The order of 11 April 2000 in proceeding N 714 of 1999 be set aside.

2.         The orders of 11 April 2000 in proceeding N 715 of 1999 be set aside and in lieu thereof it be ordered that the proceeding be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

BACKGROUND

1                     This appeal concerns two separate proceedings initiated in the Court by the appellant.  Hereafter it will be convenient to refer to the appellant as the applicant.

2                     On 12 November 1998 the National Crime Authority (“the Authority”) issued a summons under s 28 of the National Crime Authority Act 1984 (Cth) (“the NCA Act”) requiring the applicant to attend before the Authority on 19 November 1998, and thereafter until excused or released from further attendance, to give evidence and to produce certain documents.  The summons, as required by s 28(2) of the NCA Act, was accompanied by a copy of the notice by which the matter to which the hearing related was referred to the Authority.  The notice discloses that the relevant matter was referred to the Authority by the Minister for Justice of the Commonwealth under s 13(1) of the NCA Act after consultation with the Inter-Governmental Committee established under s 28 of the NCA Act.

3                     The applicant gave evidence before the then Chairperson of the Authority (“the Chairperson”) on 19 and 20 November 1998.  Only part of the transcript of the hearing was available to this Court.  The part of the transcript that we have seen reveals the following.  The applicant took objection to answering certain questions.  He asserted that he had a reasonable excuse for not answering the questions.  The principal basis for the asserted reasonable excuse was that were he to answer the questions he would contravene certain laws of Switzerland concerned with the secrecy of bank information and expose himself to the risk of prosecution in Switzerland.

4                     On 20 November 1998, counsel appearing on behalf of the NCA said to the applicant:

“I’d just like to mention some other individuals who we have some reason to believe are clients of the bank and allow you to perhaps tell us what you may or may not know about them?”

The applicant replied:

“But if they [are] already clients of my bank, so how do I answer your questions?”

The Chairperson then said:

“Well, this might be an appropriate time for me to deal with that issue.”

After identifying certain authorities, the Chairperson said:

“I might express my conclusion first and then give some reasons for it.  In my view … it is not in all the circumstances I’m going to outline a reasonable excuse for [the applicant] to refuse to answer questions about whether particular companies or individuals are clients of his employing bank.”

After giving reasons for the conclusion which he had expressed, the Chairperson said:

“Now of course under the [NCA] Act as we deal with each of these questions you can repeat an objection.  I think it is fair to say that I would give a similar sort of ruling in each case and the Act provides that [the applicant] then has five days to apply to the Federal Court to decide whether the requirement that he answer these questions is a reasonable one or whether he has an excuse not to do so, that’s entirely a matter for him.”

The applicant was then asked as to certain named persons whether they were clients of the bank.  In each case the applicant responded “I object”.

5                     Later the same afternoon the Chairperson made the following announcement:

“Well, ladies and gentlemen, in the course of the recess you had an opportunity to discuss some matters with Mr Biscoe and Mr McCrohon [counsel for the applicant] and they’ve also had a chance to discuss certain matters with their client.  As a result, the position which we’ve reached is that there will be further discussions with [the applicant] about how the matter might best be proceeding and, in order to help facilitate that, what I propose to do is to formally hand down next week a decision in relation to the objections that were taken by Mr Biscoe in relation to certain questions.

Now, that will do two things, it will facilitate me being able to present them in a way which might more usefully identify the particular issues … but, in addition, it will mean that, so far as we can achieve it, time is not running under subsection 32(12) of the National Crime Authority Act in which time [the applicant] would need to commence proceedings in that court.”

6                     The Chairperson did not hand down a decision in relation to the objections taken by the applicant in the week following 20 November 1998.

7                     By letter dated 13 July 1999, the Chairperson advised the applicant’s solicitors as follows:

“I refer to the evidence given by [the applicant] on 19 and 20 November 1998 at hearings before me pursuant to section 25 of the National Crime Authority Act 1984 (Cth) (the Act).

I also refer to earlier correspondence between your firm and the National Crime Authority (NCA) in respect of certain aspects of [the applicant’s] evidence and the claim that he had a reasonable excuse for refusing to answer a series of questions put to him.

At the hearing I foreshadowed my view that the claim was not justified.  However, I deferred giving my formal ruling to afford [the applicant] the opportunity of providing to the NCA full and frank information on three specific matters.  [The applicant] did not provide that assistance.

I now enclose a copy of my formal decision that [the applicant’s] claim at the hearings was not justified for the reasons published therein.  I note in passing that the basis for the ruling I foreshadowed at the hearings has recently been approved by His Honour Justice Hely of the Federal Court of Australia in the case of Bank of Valletta plc v National Crime Authority & Anor (unreported 17 June 1999).

Should [the applicant] wish to have my decision reviewed please note that he has five days from the date of service of this letter within which to commence proceedings in the Federal Court.

I note, however, that [the applicant] has not returned to Australia since he left in late November 1998.  Indeed one wonders whether he will ever return.  Should he do so please be advised that there is awaiting him a warrant of apprehension for the alleged offence of giving false evidence at an NCA hearing contrary to subsection 33(1) of the Act.”  (emphasis added)

8                     Enclosed with the letter of 13 July 1999 was a document of eighteen paragraphs headed “Ruling in the Hearing of [the Applicant]” and signed by the Chairperson.  The final paragraph relevantly reads as follows:

“… I have come to the conclusion that [the applicant] has not afforded a reasonable excuse that entitles him to refuse to answer the questions asked of him as to whether certain named persons, companies and other entities are clients of the Bank.  I therefore require him to answer those questions.”

9                     On 23 July 1999 the applicant commenced two separate proceedings in this Court.  First, an application made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), which named both the Authority and the Chairperson as respondents, seeking judicial review of “the decision of the Respondents … that the applicant did not have a reasonable excuse which entitled him to refuse to answer questions asked of him … as to whether certain named persons, companies and other entities are clients of a certain bank …” (“the ADJR Act proceeding”).  Secondly, an application purportedly made under s 32(2) of the NCA Act for an order of review in respect of the same decision (“the NCA Act proceeding”).

10                  In each of the proceedings the applicant filed and served a statement of claim.  The applicant pleaded in his statement of claim in the ADJR proceeding that “[b]y letter dated 13 July 1999 from the NCA to the Applicant’s lawyers received by the Applicant’s lawyers on 16 July 1999, the NCA and/or Broome notified the Applicant … of the decision that the Claim [ie the objection to answering questions on the basis that the applicant had a reasonable excuse not to answer] was not justified for the reasons stated in the ruling enclosed with that letter”.  The statement of claim in the NCA Act proceeding was in substantially similar terms.  The defence filed in each proceeding admitted “that the NCA forwarded a letter dated 13 July 1999 to the Applicant’s current solicitor” but surprisingly in view of the statements contained in the Chairperson’s letter of 13 July 1999, went on to say “that the decision as to the Applicant’s claim had already been made at the hearing on 20 November 1998 and that the Applicant was notified of the decision then”.

11                  The respondents to the ADJR Act proceeding filed and served a notice of objection to competency which contended that the jurisdiction of the Court under s 32 of the NCA Act to review the Chairperson’s decision is an exclusive jurisdiction such that the decision is not reviewable under the ADJR Act.

12                  In the NCA Act proceeding, the applicant issued a subpoena to the Authority requiring the production of various documents.  The Authority moved on notice to set aside the subpoena in part.  The Authority also moved on notice to strike out ground 1 of the application and paragraph 18 of the statement of claim on the ground that this Court does not have jurisdiction to determine the issues raised.

13                  It is the decisions of the learned primary judge (Einfeld J) on the notice of objection to competency, on the application to set aside the subpoena in part and on the strike out application which are before this Court.

DECISION OF THE PRIMARY JUDGE

14                  The primary judge rejected the contention that the Court does not have jurisdiction under the ADJR Act to review the Chairperson’s decision.  However, his Honour invoked the discretionary power given to the Court by s 10(2) of the ADJR Act to refuse to grant an application under that Act for the reason that the applicant has sought review by the Court of the decision otherwise than under the ADJR Act.  His Honour dismissed the application under the ADJR Act with costs.

15                  As to the NCA Act proceeding, his Honour held that “the question for the Court in a review under s 32 of the NCA Act is whether the decision has been made in conformity with or in contravention of administrative law principles”.  Accordingly his Honour struck out “those aspects of the applicant’s claim which rely upon facts or considerations wholly subsequent or not relevant to the making of the Authority’s decision”.  His Honour further struck out three paragraphs of the schedule to the subpoena issued by the applicant on the basis that “the forensic purpose of the material sought … is negligible”.

NOTICE OF APPEAL

16                  Paragraph 1 of the notice of appeal states:

“The Appellant appeals from the following parts of the judgment of Einfeld J given on 11 April 2000 at Sydney:

(a)               the dismissal of the Appellant’s Application for an Order of Review in proceedings number N-714 of 1999 (“the First Proceedings”);

(b)               the striking out of ground 1(d) of the Application for an Order of Review in proceedings number N-715 of 1999 (“the Second Proceedings”);

(c)               the striking out of paragraph 18(d) of the Appellant’s Statement of Claim in the Second Proceedings; and

(d)               the striking out of paragraphs (a), (b) and (d) of the Schedule to the Subpoena dated 21 September 1999 (“the Subpoena”) and issued to the Respondent in the Second Proceedings.”

FRESH ISSUE ARISING ON THE APPEAL

17                  During the course of the appeal hearing, the Court raised with counsel whether the NCA Act proceeding had been brought within the period prescribed by s 32(12) of the NCA Act.  This issue had not been addressed before Einfeld J.

18                  Section 32 of the NCA Act relevantly provides as follows:

“32.     (1)        Where:

(a)               …

(b)               …; or

(c)               a person claims to be entitled to refuse to answer a question put to him …at a hearing before the Authority;

the Authority shall decide as soon as practicable whether in its opinion the claim is justified and notify the person of its decision.

(2)               If the person is dissatisfied with the decision, he may apply to the Federal Court for an order of review in respect of the decision.

(3)               [not here relevant]

(4)               On an application for an order of review in respect of a decision of the Authority under subsection (1), the Federal Court may, in its discretion, make an order:

(a)                affirming the decision; or

(b)                setting aside the decision.

(5)               [not here relevant]

(6)               A prosecution for an offence under section 20, 29 or 30 shall not be commenced in respect of a refusal or failure by a person to furnish information, produce a document or answer a question:

(a)                if the person has claimed to be entitled to refuse to furnish the information, produce the document or answer the question, as the case may be, and the Authority decides that, in its opinion, the claim is not justified – until the expiration of the period of 5 days (excluding days on which the Registry of the Federal Court is closed) immediately after the relevant day in relation to the decision; or

(b)                if the person has made an application to the Federal Court under subsection (2) for an order of review in respect of a decision by the Authority that, in its opinion, a claim by the person to be entitled to refuse to furnish the information, produce the document or answer the question is not justified – until the application, and any appeal from an order made by the Federal Court on the application, have been determined or otherwise disposed of.

(7)               An order of the Federal Court under subsection (4) is, subject to any appeal from that order, conclusive for the purposes of any other proceedings.

(8)               [not here relevant]

(9)               [not here relevant]

(10)           [not here relevant]

(11)           [not here relevant]

(12)           An application to the Federal Court under subsection (2) or (8):

(a)               shall be made in such manner as is prescribed by Rules of Court made under the Federal Court of Australia Act 1976;

(b)               shall set out the grounds of the application; and

(c)                shall be lodged with a Registry of the Federal Court within the period of 5 days (excluding days on which the Registry is closed) immediately after:

(i)                 in the case of an application under subsection (2) – the relevant day in relation to the decision to which the application relates; or

(ii)               …

or within such further period as that Court (whether before or after the expiration of the first-mentioned period) allows.

(13)           In this section, unless the contrary intention appears:

…

“prescribed notice” means a notice stating as mentioned in paragraph 32A(2)(c);

“relevant day” means:

(a)               in relation to a decision of the Authority under subsection (1) in respect of a claim by a person to be entitled to refuse to furnish information, or to produce a document, that the person is required to furnish or produce pursuant to a notice under section 20 – the day on which the Authority notifies the person of the decision;

(b)               in relation to a decision of the Authority under subsection (1) other than a decision of the kind referred to in paragraph (a) of this definition – the day on which the Authority gives to the person to whom the decision relates a prescribed notice relating to the decision; or

(c)                ….

(14)           [not here relevant]

(15)      [not here relevant]”

19                  For present purposes, the “relevant day” for the purposes of s 32(12)(c)(i) is “the day on which the Authority gives to the person to whom the decision relates a prescribed notice relating to the decision” (see para (b) of the definition of “relevant day”).  A “prescribed notice”, within the meaning of the definition of “relevant day” is “a notice stating as mentioned in paragraph 32A(2)(c)” (see s 32(13)).  Section 32A provides that under the circumstances therein specified the Authority is to give a person a notice stating certain things.  Section 32A(2)(c) relevantly requires that the notice state:

“… that prescribed circumstances:

(i)                 do not apply; or

(ii)               apply in relation to a specified State;

as the case requires, in relation to the decision of the Authority ….”

The relevance of “prescribed circumstances” not applying in relation to a decision of the Authority is that review of the decision may be obtained in the Federal Court.  If “prescribed circumstances … apply in relation to a specified State”, then review may only be obtained in the Supreme Court of that State.  Prescribed circumstances will apply in relation to a particular State if the reference to the Authority under which the relevant hearing was being conducted was made solely by the Minister of the Crown of that State (ss 32(2) and 32A(4)).

20                  The parties were given leave to file supplementary written submissions on the issue of whether the application to the Court under s 32(2) of the NCA Act had been validly made.  Both parties contended in their respective written submissions that the Chairperson’s letter of 13 July 1999 constituted a “prescribed notice” within the meaning of s 32(13) of the NCA Act.

21                  We regret that we feel unable to accept that a letter which makes no reference at all to “prescribed circumstances” can be found to constitute a notice stating that prescribed circumstances do not apply, or apply in relation to a specified State, as the case requires        (s 32A(2)(c)).  The Chairperson’s letter of 13 July 1999 does assert that should the applicant wish to review the decision of the Chairperson “he has five days from the date of service of this letter within which to commence proceedings in the Federal Court”.  However, the legal conclusion that the effect of prescribed circumstances not applying is that the Federal Court has jurisdiction with respect to an application under s 32(2) is something that 32A(2)(d) requires that the Authority’s notice state, not something that s 32A(2)(c) requires the Authority’s notice to state.

22                  It is of significance, so far as the content of the obligation on the Authority to give to a person to whom a decision relates a “prescribed notice” in relation to the decision is concerned, that s 32A(2) provides that the “failure of a notice to state as mentioned in paragraph (d) does not affect the validity of the notice”.  By contrast a “prescribed notice” is defined in s 32(13) as a notice stating as mentioned in s 32A(2)(c).  A document which does not state as mentioned in s 32A(2)(c) can not constitute a valid “prescribed notice”.  A document will not, in our view, state a particular matter unless it sets out the matter fully and in definite form.

23                  The appellant by his supplementary written submissions contended that:

“Any deficiency in the notice was a formal one and it cannot have been intended by the legislature that it would result in the invalidity of the notice ….  This submission is … aided by the absence of any requirement for the notice to be in writing.”

24                  If the appellant intended thereby to argue that a “prescribed notice” may be given orally, we reject the argument.  A notice given by the Authority to a person that states as mentioned in s 32A(2)(c) is prima facie evidence of the matter so stated (s 32A(3)).  This would seem to indicate that the legislature intended that the notice, which constitutes prima facie evidence of the jurisdiction of the Federal Court or, as the case may be, of the Supreme Court of a State, should be a written notice.  Although the decision of the Privy Council in Musson v Rodriguez [1953] AC 530 ultimately turned on another point, the Judicial Committee noted in that case at 533 that “it would be unfortunate if the proof of the decision of the Governor-in-Council under section 4(1)(h) of this Ordinance were to be subject to the uncertainties which attend proof by oral evidence”.  It would be similarly unfortunate, in our view, if proof of the content of the “prescribed notice” should be subject to the same uncertainties.  A “prescribed notice” within the meaning of s 32(13) of the NCA Act must, we consider, be in writing.  Any argument that a notice may be given orally would confuse, in our view, the concept of “giving a notice” with the concepts of “giving notice” or placing a person “on notice”.

25                  Moreover, once it is recognised that a “prescribed notice” constitutes prima facie evidence of the jurisdiction of the Federal Court or of the Supreme Court of a State, as the case may be, to hear and determine an application under s 32(2) or s 32A(4) of the NCA Act, the rationale for the legislative requirement that an application not be made under s 32(2) of the NCA Act until the applicant receives from the Authority a “prescribed notice” becomes apparent.  The “prescribed notice” is a document upon which an applicant is entitled rely for the purpose of determining the court to which he or she may apply for an order of review.  The “prescribed notice” is also a document upon which a court is entitled to rely for the purpose of accepting an originating process.  That is, for the purpose of establishing that the proceeding is properly brought in that court, as opposed to another court, and that it is brought within the period prescribed by s 32(12)(c) of the NCA Act.

26                  It is agreed that the Authority has not given the applicant a written notice in relation to the decision of the Chairperson which states specifically that prescribed circumstances do not apply, or apply in relation to a specified State, as the case requires.  The application to the Federal Court under s 32(2) of the NCA Act was thus not made within the period of five days immediately after the relevant day in relation to the decision to which the application relates within the meaning of s 32(12) of the NCA Act.  The application was made outside the period (ie before the commencement of the period) as the Authority has not at any time given to the applicant a “prescribed notice” in relation to the Chairperson’s decision.  The express power given to the Court to extend the period prescribed by s 32(12)(c) of the NCA Act by allowing further time, indicates, in our view, that the legislature did not intend that the Court could alter the period by allowing an application to be lodged before the commencement of the period of five days referred to in s 32(12)(c).

27                  We are of the view that the requirement of s 32(12)(c) of the NCA Act that an application shall be lodged with the Registry of the Federal Court within the period of five days immediately after the relevant day (or such further period as the Court allows) is a statutory requirement which must be strictly complied with.  Not only in this the natural meaning of the word “shall” in the context in which it is found but traditionally where the word “shall” is used in respect of steps in litigation it has been understood as a peremptory mandate (see for example ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197; Ho v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274; Repatriation Commission v Tuite (1992) 37 FCR 571).  Indeed, the temporal requirement in  s 32(12)(c) is, in our view, to be understood as attaching a limitation or condition to the authority of the Court to make an order of review in respect of the decision of the Authority.  That is, the temporal requirement operates to constrain the jurisdiction of the Court.  The High Court has so understood the temporal requirements of s 459G of the Corporations Law (David Grant & Co Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265) and certain judges of this Court have so understood the temporal requirements of s 478(1)(b) of the Migration Act 1958 (Cth) (Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1186; Oguzhan v Minister for Immigration & Multicultural Affairs [2000] FCA 781).

28                  We therefore conclude that the application purportedly made to this Court under         s 32(2) of the NCA Act did not validly invoke the jurisdiction of the Court as it was not lodged with a Registry of the Court within the period prescribed by s 32(12)(c) of the NCA Act.

CONCLUSION

29                  Neither party drew the provisions of s 32(12)(c) of the NCA Act to the attention of the learned primary judge.  The argument before his Honour was conducted on the basis that the application under s 32(2) of the NCA Act had been validly made.  His Honour, in reliance on s 10(2) of the ADJR Act, ordered that the application made under the ADJR Act be struck out on the basis that “the adequacy of the right and procedure of review provided by section 32 of the NCA Act” was sufficient to deny the applicant the right to proceed on his application under the ADJR Act.  In so ordering, his Honour plainly acted on the basis that the applicant had validly sought review by this Court under s 32(2) of the NCA Act of the Chairperson’s decision.

30                  In the circumstances, on the view of s 32(12) of the NCA Act which we have adopted, the hearing before Einfeld J miscarried.  His Honour’s order that the application under the ADJR Act be dismissed must be set aside.  Similarly his Honour’s orders in the NCA Act proceedings must be set aside.  No valid application to the Court under s 32(2) of the NCA Act has been made.  In lieu of the orders made by his Honour in this matter, it will be ordered that the proceeding be dismissed.

31                  The respondents have by their written submissions suggested that in the event that the Court should take the view that it has taken, it would be appropriate for there to be no order as to the costs of the appeal.  By making no order the Court would recognise that the parties are each in part to blame for the unfortunate circumstance that has arisen.  We presently incline to the view that this would be the appropriate outcome so far as costs are concerned.  However, we consider that the applicant should have the opportunity to put submissions before the Court on the question of costs.  Appropriate directions to allow this to be done will be made at the time of the publication of these reasons for judgment.

Associate:

Dated:              19 September 2000