FEDERAL COURT OF AUSTRALIA

XX v Australian Crime Commission (No 2) [2015] FCA 23

THE COURT ORDERS THAT:

1.    The Chief Executive Officer of the Australian Crime Commission representing the members of the Board of the Australian Crime Commission as identified in s 7B of the Australian Crime Commission Act 2002 (Cth) be joined as a respondent to the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant applied to join the Board of the Australian Crime Commission (“the Board”) as a respondent to this proceeding. The respondents opposed the application on various grounds, including on the ground that the Board was not a juristic entity and could not be joined. In XX v Australian Crime Commission [2014] FCA 177, I decided that the Board was not a juristic entity, and could not be joined. I noted the applicant’s alternative application to join the members of the Board. I said that I would give the parties the opportunity to prepare an appropriate order. I said that, if the Rules of Court allowed it, it seemed appropriate that one member of the Board, named by his or her office, represent the members of the Board. On 20 November 2014, I adjourned the applicant’s application for joinder to 26 November 2014.

2    When the proceedings came back on before me on 26 November 2014, I was told that the respondents were not yet in a position to nominate a representative of the Board. However, I was also told that no difficulties in doing that were anticipated, and there was a prospect that that aspect of the pre-trial matters could be dealt with in chambers without the need for the parties to attend. I adjourned the directions hearing to 29 January 2015.

3    The joinder of the members of the Board (or a representative of the members) could not be resolved by the parties. In addition, on 4 December 2014, the respondents issued an interlocutory application wherein they sought an order amending the name of the first respondent from the Australian Crime Commission to the Commonwealth of Australia, and removing the second respondent from the proceeding pursuant to r 9.08 of the Federal Court of Australia Rules 2011 (Cth). The respondents said that they had been prompted by my reasons to make this application. The applicant opposed the orders sought in the respondents’ application. I was told the submissions on the respondents’ application would take half a day.

4    In the meantime, the applicant sought the resolution of the application for joinder by the joinder of all members of the Board, or one member representing himself or herself and the other members of the Board. In response, the respondents submitted that I should delay making an order on the applicant’s application until after I had determined their application because if I joined the Commonwealth, then (so the argument was put), there would be no need to give any further consideration to joining members of the Board or a representative of those members.

5    Counsel for the respondents advised the Court that if (contrary to the respondents’ primary submission) I considered that it was appropriate to proceed to make an order for joinder of a member of the Board representing all members, then the appropriate member is the Chief Executive Officer of the Australian Crime Commission.

6    In the ordinary course, I would proceed to make an order to give effect to my reasons in connection with the applicant’s application. The respondents’ outstanding application does not directly relate to the joinder of the members of the Board (or one member representing all members) so that the respondents can put the matter no higher than to say that, as a matter of discretion, I should hold over the finalisation of the applicant’s application until I have heard their application. They point to the fact that they are not able to appeal against my decision about the joinder of a party (Federal Court of Australia Act 1976 (Cth) s 24(1AA)(b)). Having regard to the way the matter was argued at the earlier hearings, it is not entirely clear to me how the respondents would put any complaint about my decision, even if they had a right of appeal.

7    In any event, I think I should proceed to dispose of the applicant’s application. I take that view for two reasons. First, it is not suggested by the respondents that I cannot make an order joining the members of the Board (or one of them representing all members), and it would be consistent with my rejection of the other arguments advanced by the respondents (see paragraphs 6 and 7 of my earlier reasons) that I now proceed to do so. Secondly, I think the respondents, if they wished to put this argument, should have done so at the earlier hearings. In fact, whether the respondents were taking the same point in relation to the Australian Crime Commission as they were in relation to the Board (i.e., that it was not a juristic entity) was raised at the earlier hearings and, although the respondents said that they were treating the reference to the Australian Crime Commission as being a reference to an agency in right of the Commonwealth, they also said that they were not taking any issue that the wrong party had been sued.

8    I will make an order under r 9.21 of the Federal Court Rules 2011 (Cth) that the Chief Executive Officer of the Australian Crime Commission representing the members of the Board of the Australian Crime Commission as identified in s 7B of the Australian Crime Commission Act 2002 (Cth) be joined as a respondent to the proceeding.

Associate:    

Dated:    29 January 2015