Egglishaw v. Australian Crime Commission

[2010] FCAFC 82
76 ATR 526
186 FCR 393
270 ALR 276

---

(Judgment by: Spender J, Emmett J, Jacobson J)

Egglishaw
v Australian Crime Commission

Court:

Judges:
Spender J
Emmett J
Jacobson J

Hearing date: 15 February 2010
Judgment date: 8 July 2010

---

Judgment by:
Spender J
Emmett J
Jacobson J

[1] This is an appeal from the judgment of Besanko J on 14 September 2009: Egglishaw v Australian Crime Commission (No 3) [2009] FCA 1027.

[2] Besanko J dismissed an application by Mr Philip Jepson Egglishaw (the appellant) under s 39B of the Judiciary Act 1903 (Cth) for declarations in respect of a summons issued to the appellant pursuant to s 28(1) of the Australian Crime Commission Act 2002 (Cth) (the Act) and a notice to produce issued under s 29 of the Act. The appellant sought declarations that both the summons and the notice were invalid, and that the examination conducted pursuant to the summons and the production of documents and things purportedly pursuant to the notice to produce were unlawful.

BACKGROUND

[3] On 27 January 2004, an Examiner under the Act, Mr T Sage, issued a summons to the appellant pursuant to s 28(1) of the Act. Attached to the summons were the following documents: a copy of the "Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003" (the 2003 authorisation and determination) marked Annex A; a schedule of documents and other things to be produced by the appellant marked Annex B; and a statement of rights and obligations under s 29B of the Act and explanatory notes marked Annex C.

[4] The 2003 authorisation and determination was made by the Board of the Australian Crime Commission at a meeting of the Board on 13 May 2003. The authorisation and determination was expressed to be valid until 31 May 2004. On 15 May 2003, the Chair of the Board signed a copy of the authorisation and determination, mistakenly asserting that it was made by resolution of the Board on 15 May 2003.

[5] On 4 December 2003, the authorisation and determination was varied by a resolution of the Board. This varying determination was called the "Australian Crime Commission -- Operations and Investigations (Participants) Determination 2003" (the 2003 variation). In the 2003 authorisation and determination, the classes of persons to participate in the investigation were specified in Sch 2 of the document. This was varied by the 2003 variation to make changes to the classes of persons who were to participate in the special investigation.

[6] Section 6 of the 2003 authorisation and determination provided:

Classes of persons to participate in an investigation

Pursuant to paragraph 7C(1)(e) of the Act, the classes of persons to participate in the investigation mentioned in Schedule 1 are those mentioned in Schedule 2.

[7] Schedule 2 provided:

Schedule 2 Classes of persons

1

The CEO.

2

Members of staff of the ACC authorised in writing by the CEO or by a delegate of the CEO.

3

Officers and members of staff, authorised in writing by the head of the agency, of the following agencies:

(a)

each agency of which a Board member is head (other than the CEO) in his or her capacity as a Board member;

(b)

the Australian Taxation Office;

(c)

AUSTRAC;

(d)

the Department of Immigration and Multicultural and Indigenous Affairs;

(e)

the New South Wales Crime Commission;

(f)

the Queensland Crime and Misconduct Commission.

[8] Section 4 of the 2003 variation provided:

Classes of persons to participate in operation

(1)

For paragraph 7C(1)(c) of the Act, the classes of persons to participate in the intelligence operation, or the investigation into a federally relevant criminal activity, to which an Instrument mentioned in Schedule 1 applies are the classes mentioned in Schedule 2.

(2)

For the avoidance of doubt, a provision in an Instrument mentioned in Schedule 1 that specifies the classes of persons to participate in the operation or investigation to which the Instrument relates is revoked and replaced by this Determination.

(Emphasis added).

[9] Schedule 1 includes, as the second Instrument in a list of nine, "Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003", that is the 2003 authorisation and determination.

[10] Schedule 2, in the classes of persons who participate in the intelligence operation or the investigation into a federally relevant criminal activity, includes:

2

Each person who is:

(a)

a member of the staff of the ACC; and

(b)

identified in writing by the CEO, or a delegate of the CEO, as a person whose duties include providing services in relation to ACC operations and investigations.

3

Each person who is:

(a)

an officer or member of the staff of any of the following agencies:

(i)

an agency of which a Board member is head (other than the CEO) in his or her capacity as a Board member;

(ii)

the Australian Taxation Office:

(iii)

AUSTRAC:

(iv)

the Department of Immigration and Multicultural and Indigenous Affairs;

(v)

the New South Wales Crime Commission;

(vi)

the Queensland Crime and Misconduct Commissioner; and

(b)

identified in writing by the head of that agency, or a delegate of that head, as a person whose duties include providing services in relation to ACC operations and investigations.

[11] The change to the classes of persons who were to participate in the special investigation had no material significance in relation to the persons involved in this special investigation.

[12] It is common ground between the parties that the 2003 variation did not accompany the summons issued to the appellant on 27 January 2004.

[13] Relevantly, the summons directed to the appellant contained the following:

Pursuant to subsection 28(1) of the Australian Crime Commission Act 2002, you are required:

a)

to attend at Level 2, 383 Latrobe Street, Melbourne on 17 February 2003 at 10.00 am before an Examiner at an examination to be held for the purposes of the abovementioned special investigation to give evidence in relation to ...

(Emphasis in the original)

[14] The summons was signed by Mr Sage, over the printed word "Examiner".

[15] At the time the summons was issued on 27 January 2004, and at all later relevant times, s 28 of the Act was as follows:

28 Power to summon witnesses and take evidence

(1)

An examiner may summon a person to appear before the examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.

(1A)

Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons.

(2)

A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.

(3)

A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the examiner intends to question the person, but nothing in this subsection prevents the examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.

(4)

The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.

(5)

An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:

(a)

the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and

(b)

the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.

(6)

In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO.

(7)

The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.

[16] The examination of the appellant commenced on 17 February 2004 before Mr Sage, and continued on 19 February 2004 and on subsequent days.

[17] On 19 February 2004, a notice to produce was issued by the Examiner, Mr Sage, and served on the appellant by an officer of the Commission, Mr Ian Andrew, in the presence of the appellant's counsel, Mr David Galbally QC, and his solicitor, Mr Michael Carr. Attached to the notice were a schedule of documents and other things to be produced by the appellant, and a statement of rights and obligations under s 29B of the Act.

[18] The notice to produce contained the following:

Pursuant to subsection 29(1) of the Australian Crime Commission Act 2002, you are required:

a)

to attend at Level 2, 383 Latrobe Street, Melbourne before David Hellings, a member of the staff of the Australian Crime Commission, forthwith; and

b)

produce the documents and things described in the Schedule annexed to this notice as Annexure A, being documents and things that are relevant to the said special investigation.

(Emphasis in the original)

[19] On 14 February 2004, several days prior to the issue of the notice to produce, members of the Commission had searched the appellant's hotel room with a search warrant issued pursuant to s 3E of the Crimes Act 1914 (Cth). There is no challenge in these proceedings to the validity of the search warrant, or the seizure of things pursuant to it. During the search of the hotel suite, a notebook computer was located, and taken away. A Member of the Commission made forensic image DVDs of the hard disk drive of the notebook computer. A forensic computer examiner, Mr Freestone, conducted various keyword searches of the forensic image DVDs. These searches were the only access to the content of the forensic images by any member of the staff of the ACC. Members of the Commission suspected that the content of the DVDs was relevant to the special investigation.

[20] On 19 February 2004, during a break in the appellant's examination, in the waiting room next to the examination room, the Investigative Team Leader, Mr Andrew, gave the appellant the forensic image DVDs. He then served the notice to produce on the appellant. Upon being served the notice to produce, the appellant conferred with his counsel and then handed over the forensic image DVDs.

[21] Mr Hellings gave evidence, which Besanko J accepted, that he was present in the waiting room when the appellant handed over the DVDs to Mr Andrew. There was no evidence that the DVDs were handed over to Mr Hellings. Also present were the appellant, Mr Galbally QC, Mr Carr, Mr Andrew and Mr Martin Taylor, a Commission lawyer. The evidence of Mr Hellings, and the findings of Justice Besanko in this regard, have not been challenged in this appeal.

THE APPEAL

[22] The Notice of Appeal contains five grounds:

1.

His Honour erred in holding, at [47], that, in so far as the summons issued to the Appellant:

(a)

did not refer to "the examiner" as was required by sec 28 of the Australian Crime Commission Act 2002 ("the Act");

(b)

instead, referred to "an examiner"

the error or misstatement did not invalidate the summons.

2.

His Honour erred:

(a)

in holding (at [35] to [37] that the failure of the Examiner to attach to the summons the 2003 variation to the Determination (which did accompany the summons) was irrelevant;

(b)

in failing to find that the terms of sec 28(2) of the Act were mandatory and, by reason of the Examiner's failure to attach to the summons the 2003 variation, had not been complied with.

3.

His Honour erred in holding, at [78], that the Notice to Produce issued to the Appellant by Mr Hellings (Hellings) was valid in circumstances where it failed to specify, in accordance with sec 29 of the Act, that the documents and things referred to therein were to be produced to Hellings.

4.

His Honour erred in holding, at [80], that documents or things referred to in the Notice to Produce were produced to Hellings in accordance with s 29(1) of the Act in circumstances where his Honour found that although Hellings was in the room, he did not serve the notice to produce and he did not physically receive the documents or things.

5.

His Honour erred in holding (at [89]) that, in circumstances where the examiner required the documents or things referred to in the Notice to Produce to be produced "forthwith":

(a)

"forthwith" was a reasonable time in the circumstances; and

(b)

the examiner's requirement was a valid requirement.

[23] The paragraph references are to the paragraphs in the reasons for judgment of Besanko J.

[24] The first two grounds of appeal relate to alleged deficiencies in the summons which are said to invalidate the summons pursuant to s 28 of the Act. The third and fourth grounds of appeal relate to alleged deficiencies in the notice to produce pursuant to s 29 of the Act. The final ground of appeal deals with what is said to be the requirement in the notice to produce that the documents or things be produced "forthwith".

The summons -- Grounds 1 and 2

[25] The appellant argued that the learned trial judge erred in finding that, in referring to "an examiner", instead of "the examiner" as required by s 28(1) of the Act, the summons was not invalid. Further, the appellant submitted that his Honour erred in failing to find that the terms of s 28(2) of the Act were mandatory and that the Examiner's failure to attach to the summons the 2003 variation rendered the summons invalid.

[26] In regards to the first ground of appeal, the primary judge found that an error or misstatement on the summons in referring to "an examiner", rather than "the examiner", did not invalidate the summons. His Honour found that on the face of section, the examiner's power to summon a person is the power to summon a person to appear before that examiner. Although his Honour found that there was no obvious reason why the power should be so limited, his Honour found that even if the section is so limited, a reference to "an examiner" in the summons did not invalidate the summons. The primary judge found that in this case, the examiner who issued the summons was the examiner who conducted the examination of the appellant, and that there had been no unauthorised excess of power.

[27] There are two stages of an inquiry to determine whether the words "an examiner" invalidates the summons and the subsequent examination. First, it is necessary to establish that the use of "an examiner" is a breach of the requirements of s 28(1). Further, it must be demonstrated that there is a legislative intention to invalidate any act which fails to comply with the condition in s 28(1), such that the use of "an examiner" rather than "the examiner" meant that the Examiner had no power to issue the summons: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky), at 388-389.

[28] The appellant submits that Project Blue Sky has no application because the use of "an examiner":

... is not a mere slip or error. It is, in fact, a fault of the summons which takes the summons outside the ambit of section 28 ... it's not a question of error; it's a question of whether there's any power to issue a summons in the terms in which it was issued.

[29] The appellant submits that the only power given to an Examiner under s 28(1) was a power to summon a person to appear before the same Examiner who issued the summons. Therefore, the Examiner had no power to issue a summons requiring appearance before "an Examiner": the summons was therefore ultra vires.

[30] As support for this construction, the appellant, in written submissions, points to the Explanatory Memoranda and Revised Explanatory Memoranda for the Australian Crime Commission Establishment Bill 2002, the Explanatory Memorandum to the Australian Crime Commission Amendment Bill 2007 and the Second Reading Speeches in both the Senate and the House of Representatives in relation to the amendment of s 28 in 2007, which only prospectively removed the requirement of "the Examiner" and replaced it with "an Examiner".

[31] The error of reasoning that the appellant claims on the part of the primary judge is his Honour's conclusion that, because in this case the Examiner who issued the summons made the summons returnable before himself, the reference to "an Examiner" did not invalidate the summons. The appellant submits that the fact that the summons was issued by the Examiner and was returnable before him was an irrelevant consideration because the relevant question is whether there was a power to issue the summons in the terms in which it was issued.

[32] The appellant argues that even if Project Blue Sky applied, the error invalidated the summons. The appellant cited the decision in Epstein and Morton v WorkCover SA [2003] SASC 231, where Besanko J in that case:

... suggested that there were a number of considerations which would invalidate the regulation, notwithstanding ... the application of Blue Sky.

[33] In Epstein and Morton, Besanko J found that there were four factors which enabled him to discern whether there was "a legislative purpose to invalidate any act that fails to comply with the condition". Those factors were: the use of imperative language in the section; the significant subject matter of the power in the section; the importance of the body who exercises the power; and that the question of whether the requirements of the Act have been met is capable of being determined relatively easily. The appellant submits that these considerations apply to the present legislation and therefore, if Project Blue Sky does apply, the summons was invalid for those reasons.

[34] Section 28(1) of the Act gives the Examiner the power to summon a person. The conditions on the exercise of that power are that the person is summoned to: a) appear before the examiner; b) (appear) at an examination; and c) to give evidence and to produce such documents or other things etcetera.

[35] We reject the argument that the summons was beyond power. The failure to follow a condition on the exercise of a power is the kind of failure with which Project Blue Sky deals.

[36] In Project Blue Sky, the key principle (at 388-389) is that:

An act done in breach of a condition regulating the exercise of the statutory power is not necessarily invalid and of no effect. Whether it is depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.

[37] In our judgment, Project Blue Sky applies. The High Court in that case said (at 389) that the existence of the purpose to invalidate any act which doesn't comply with a condition is to be determined by:

... reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition ... The cases show various factors that have proved decisive in various contexts ...

[38] And continuing (at 390):

... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute."

[39] Hence there is no exhaustible list of considerations for determining the existence of the relevant purpose. In Epstein and Morton, Besanko J found that the relevant considerations for determining the purpose of the legislation were the four he identified. (They are among the factors which may be decisive in this case).

[40] The respondent submits that "there is no particular reason" why s 28 of the Act ought to be read as having conditions with which failure to comply results in invalidity of the act. This is especially so, it was said, because, as the primary judge stated in his judgment, "another examiner could acquaint himself with the material and conduct the examination."

[41] In our judgment, the error in referring to "an" examiner did not invalidate the summons. Whether or not the person summoned could just as easily appear before another examiner is not the issue in this matter. Section 28(1) in its application terms clearly directed that the person summoned is to appear before the examiner who issued the summons. On its face, the summons did not so direct.

[42] The second enquiry to be made is whether there is a legislative intent to invalidate any act which breaches that condition. The considerations for determining this question are outlined above.

[43] With regard to the language of the relevant provision, we accept the respondent's submission that the provision on its ordinary meaning does not reveal an intention to create an inviolable restraint on the exercise of the statutory power. We reject the appellant's submission that the section uses imperative language. Certainly, the requirement at issue in Epstein and Morton was imperative -- it used the words:

[t]he regulation ... cannot be made unless ...

[44] However, the language of s 28(1) does not have that imperative quality. With regard to the language of the relevant provision, there appears to be no reason to suggest that the use of "an examiner" invalidates the summons.

[45] The second ground of appeal is that the learned trial judge erred in failing to find that the terms of s 28(2) of the Act were mandatory and, by reason of the Examiner's failure to attach to the summons the 2003 variation, had not been complied with.

[46] It is common ground that the 2003 variation did not accompany the summons. The issue is whether the 2003 authorisation and determination, without the variation, was a copy of the determination within the meaning of s 28(2) of the Act, set out above.

[47] The determination of the Board that an investigation is special was made pursuant to s 7C(1)(d), (3) and (4) of the Act as follows:

7C Functions of the Board

(1)

The Board has the following functions:

...

(d)

to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation;

...

Special investigation

(3)

The Board may determine, in writing, than an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective.

Further details

(4)

A determination under subsection ... (3) must:

(a)

describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and

(b)

state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and

(c)

set out the purpose of the operation or investigation.

[48] The primary judge held that, for the purposes of this section, the specification of classes of persons to participate in the investigation was not an essential part of the determination, because s 28(2) refers to the "determination ... that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation".

[49] His Honour found that those matters were covered by the determination supplied with the summons of 27 January 2004 and that they were unaffected by the 2003 variation. His Honour found that the appellant was given notice of those matters and there was no evidence that he was misled by that part of the authorisation and determination which addressed the class or classes of persons who were to participate in the special investigation.

[50] The primary judge referred to the decision of Merkel J in A1 v National Crime Authority (1996) 67 FCR 464, which concerned a similar provision in the National Crime Authority Act 1984. Merkel J said (at 480):

The purpose of the requirement is to enable a witness summoned to ascertain the existence, source and extent of the authority and power of the NCA to require his or her

a)

attendance at the hearing;

b)

answers under compulsion at the hearing to questions considered by the NCA to be relevant to the special investigation.

... In my view the notice of reference must enable the NCA and the witness to ascertain, albeit in a general way, the limits of the authority of the NCA to conduct the investigation and also to determine, or at least form a view as to, whether the matters being inquired into at the hearing are relevant or capable of being considered to be relevant to the investigation.

[51] The primary judge drew support from this decision to conclude that the specification of class or classes of persons to participate in the investigation is not an essential part of the examination.

[52] In our opinion, the appellant's submission that his Honour erred in doing so should be rejected.

[53] Contrary to his Honour's conclusion, the appellant argued that the determination of the class or classes of persons to participate in the investigation is a significant part of the determination that the investigation is special.

[54] The court is satisfied, however, that in amending the class or classes of persons, the 2003 variation did not affect the determination that "the investigation into matters relating to federally relevant criminal activity is a special investigation" within the meaning of s 28(2). Having regard to the language of s 28(2) and to the purpose of the provision, we do not find that a recipient of the summons could be misled about the special nature of the investigation or other essential matters relevant to the determination because of the omission of the 2003 variation.

[55] It is important to recognise that the only effect of the 2003 variation is to replace the provision specifying the classes of person to participate in the investigation in the 2003 authorisation and determination.

[56] The court rejects the appellant's second ground of appeal. The notice to produce -- Grounds 3 and 4

[57] The appellant's third and fourth grounds of appeal relate to the notice to produce which was issued on 19 February 2004. The appellant relies on these grounds cumulatively to demonstrate the invalidity of the notice to produce and that the subsequent production of documents was unlawful.

[58] The notice to produce was issued pursuant to s 29 of the Act, which at the time read as follows:

29 Power to obtain documents

(1)

An examiner may, by notice in writing served on a person, require the person:

(a)

to attend, at a time and place specified in the notice, before a person specified in the notice, being the examiner or a member of the staff of the ACC; and

(b)

to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special ACC operation/investigation.

(1A)

Before issuing a notice under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons.

(2)

A notice may be issued under this section in relation to a special ACC operation/investigation, whether or not an examination before an examiner is being held for the purposes of the operation or investigation.

(3)

A person shall not refuse or fail to comply with a notice served on him or her under this section.

(3A)

A person who contravenes subsection (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.

(3B)

Notwithstanding that an offence against subsection (3) is an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.

(3C)

Where, in accordance with subsection (3B), a court of summary jurisdiction convicts a person of an offence against subsection (3), the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 1 year.

(4)

Subsections 30(3) to (5) and (9) apply in relation to a person who is required to produce a document or thing by a notice served on him or her under this section in the same manner as they apply in relation to a person who is required to produce a document or thing at an examination before an examiner.

[59] The third of the appellant's grounds of appeal is that the learned trial judge erred in holding that the notice to produce was valid in circumstance where it failed to specify, in accordance with s 29 of the Act, that the documents or things referred to therein were to be produced to Mr Hellings.

[60] The learned trial judge found that when the notice to produce was read as a whole and in a sensible fashion, it was clear that the notice to produce required production to Mr Hellings and that the requirement was clear having regard to the terms of the notice. Thus his Honour found that the notice to produce was in accordance with the terms of s 29(1) of the Act.

[61] There is no prescribed form for a notice to produce.

[62] The essential terms required for the notice to accord with s 29(1) are accurately set out in the appellant's written submissions: there is no question that the notice must state that the specified person is to attend before an Examiner (or member of staff of the ACC) and produce at the same time and place to the same Examiner (or staff member) documents or things specified in the notice.

[63] On the face of the notice to produce, it is apparent that the document meant that the appellant was required to produce at a time and place the specified documents and things to Mr Hellings. In our view, that is the logical and consistent way to interpret the document. The appellant drew the court's attention to Mr Hellings' evidence that he did not think that the notice meant that the appellant was required to produce the documents or things to Mr Hellings. However, it is not a question of what Mr Hellings intended the document to say, or thought the document said, but rather what the document said.

[64] We reject the appellant's third ground of appeal.

[65] The fourth ground of appeal is that the learned trial judge erred in holding that the documents or things referred to in the notice to produce were produced to Mr Hellings in accordance with s 29(1) of the Act, in circumstances where Mr Hellings did not serve the notice to produce and did not physically receive the documents or things. This issue turns on the definition of "produce".

[66] His Honour considered Evans v Button (1988) 81 ALR 61, which examined the range of meanings the word "produce" could have. His Honour referred particularly to the comments of Mahoney JA (with whom Priestley and McHugh JJA agreed) (at 66-67) that:

The learned trial judge considered cases in which the meaning of "produce" in particular contexts had been examined. He concluded, in my opinion correctly, that the word is one "that has not got an exact legal meaning but requires an interpretation to be put upon it in the statute in which it occurs" (Hanfstaengl v American Tobacco Co [1895] 1 QB 347 at 355); and he saw the decision of the Court of Criminal Appeal in R v Amenores [1980] 2 NSWLR 34 at 37 as indicating that, in the present section, the word is used in its "ordinary grammatical meaning". In s 234(e) the legislature has used the phrase "produced delivered or furnished to". I do not think that the juxtaposition of these three terms should be seen as indicating an intention that each of them has a meaning separate and distinct from the other in the sense that they do not overlap. It may be, as his Honour was inclined to think, that "produced" ordinarily means that the one person is presenting a document to the other whilst they are in each other's presence. If this be so, then the purpose of "delivered or furnished to" was, inter alia, to indicate that what was in contemplation in s 234(e) was not so limited and that the legislature was looking to a wide class of communication of the document to the relevant officer.

[67] Having considered these comments, the primary judge found that the physical presence of the person to whom documents or things are to be produced is probably necessary, but that the person to whom the documents or things are to be produced need not take actual physical possession of the documents or things. His Honour gave examples of documents or things that may be placed on a table or, if produced in large quantities, may be in cartons which are immediately taken away by members of the Commission.

[68] His Honour therefore found that the production which took place on 19 February 2004 was in accordance with the notice to produce and s 29(1) of the Act. His Honour found that it was immaterial that the person serving the notice was not Mr Hellings, as there is no statutory requirement that the person serving the notice had to be the person specified in the notice.

[69] The word "produce" is to be given its ordinary grammatical meaning and is to be considered in the context of the statute. The Oxford Dictionary defines "produce" as meaning:

To bring forward, bring forth or out; to bring into view, to present to view or notice, to offer for inspection or consideration, exhibit.

[70] There is no indication in that definition that there should be a direct physical transfer from the person directed to produce to the recipient of the production.

[71] Furthermore, having regard to the objects, purposes and terms of s 29, there appears to be no reason to construe "produce" as meaning that the documents or things must be received into the hands of the person named in the notice.

[72] In addition, the operational realities required to realise the purpose of the statute would suggest, as the primary judge found, that there are situations where many cartons of documents would be produced and then taken by ACC staff without any physical handling by the Examiner, or an officer of the ACC.

[73] The appellant submits that the principle of strict compliance with statutory conditions, which is applicable to search warrants, applies to notices under s 29 by analogy. The appellant refers to the statement in George v Rockett (1990) 170 CLR 104 (at 111) that:

... the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.

[74] The court is satisfied that "to produce" does not impose a statutory condition that Mr Hellings is to receive, in his own hands, the documents or things produced under s 29.

[75] It was open to the primary judge to conclude that the two DVDs were produced to Mr Hellings. Therefore, the question of strict compliance in that sense is not one that needs to be addressed.

Ground 5 -- "Forthwith"

[76] The final ground of appeal raised by the appellant is that the learned trial judge erred in holding that, in circumstances where the examiner required the documents or things referred to in the Notice to Produce to be produced "forthwith", "forthwith" was a reasonable time in the circumstances, and the examiner's requirement was a valid requirement.

[77] It should be noted that the "Notice to Attend and Produce to the Australian Crime Commission" by Mr Sage, the Examiner, was in the following terms:

Pursuant to subsection 29(1) of the Australian Crime Commission Act 2002, you are required:

(a)

to attend at Level 2, 383 Latrobe Street, Melbourne before David Hellings, a member of the staff of the Australian Crime Commission, forthwith; and

(b)

produce the documents and things described in the Schedule annexed to this notice as Annexure A, being documents and things that are relevant to the said special investigation.

(Emphasis in original)

[78] Annexure A was in these terms:

SCHEDULE

Documents and things to be produced by you:

A.

All documents and records, including electronically stored and computer generated documents and records, in your custody, possession and/or control relating to:

1.

Any persons, companies, trusts or other entities resident in Australia involved in or utilising the professional services of Strachans and Strachan & Co.

2.

Any persons, companies, trusts or other entities involved in facilitating the transfer of monies into and out of Australia that utilise the professional services of Strachans and Strachan & Co.

for the period from 1 January 1998 to the date of this Notice.

B.

The following documents and things in your custody, possession and/or control:

1.

Dvd disks marked -- "Reference: 1799A -- Duxford, Contents, Archive Copy of 20GB Toshiba HDD from Toshiba Tecra 8200 Notebook PC" being a copy of your personal business Toshiba laptop computer (PC) hard drive seized pursuant to a section 3E of the Commonwealth Crime Act 1914 Search warrant executed at 1105 am on Saturday the 14th day of February 2004.

[79] In terms, the notice required the appellant to attend at the nominated place before the specified person "forthwith": the timing of the production of the things in Annex A was left open ended. It may be accepted, notwithstanding the infelicity of expression, that the notice called for the production of all of these things "forthwith". It may be that a requirement to produce the documents and things in Pt A of Annex A "forthwith" was not a reasonable time, and to that extent there was no requirement to produce those documents. The appellant is not charged with failing to produce those documents.

[80] The appellant did produce the 2 DVDs referred to in Pt B of Annex A. His complaint is that he should not have been required to, because the obligation to produce the DVDs "forthwith" was not a reasonable time.

[81] The primary judge considered the decision in A.B. Pty Ltd v Australian Crime Commission [2009] FCA 119, where Flick J considered a number of factors which indicate whether the period of time allowed for production in a notice issued under s 29 is reasonable. His Honour also referred to the decision in Ganke v DCT (1975) 25 FLR 98.

[82] His Honour found that, as the decision in A.B. Pty Ltd demonstrates, the decision of the examiner as to the time in which documents or things must be produced is examinable. However, the primary judge was satisfied that "forthwith" was a reasonable time in the circumstances of the case, or at least that the appellant had not established that an Examiner could not reasonably take the view that it was a reasonable time. His Honour pointed to the fact that the documents or things in issue (being the 2 DVDs) were in the possession of the ACC on 19 February 2004, that the appellant was present for an examination on that day, and that he was accompanied by counsel. His Honour highlighted that the appellant did not need time in which to locate the documents or things he in fact produced, and that he had the opportunity to obtain "on the spot" legal advice. For these reasons, his Honour found that "forthwith" was a reasonable time to specify in the notice to produce.

[83] The appellant makes three arguments regarding the requirement that the documents and things specified in the notice to produce be produced "forthwith". First, the appellant submits that "forthwith" does not comply with the requirements of s 29 because it is not a measure of time appropriate to the Act. Secondly, the appellant argues that it is unreasonable to issue a notice requiring production "forthwith" of the documents in Sch A of the notice. Finally, the appellant submits that "forthwith" can never be a time specified in a notice under s 29, because it could never give the citizen the opportunity of exercising the limited rights which the citizen is given.

[84] The first argument was raised by the appellant in oral submissions. In response to an inquiry from the bench, counsel for the appellant said as follows:

MR ABBOTT: ... I say it's not a measure of time that's appropriate to this Act. That's the first point.

JACOBSON J: The first point is it's got to say 10.03 am.

MR ABBOTT: Yes. Yes.

[85] There is no statutory requirement in the Act which requires that a notice under s 29 specify a time for production, rather than require production "forthwith". The appellant gave authority to support a strict construction of s 29: AB Pty Ltd v Australian Crime Commission & Sage [2009] FCA 119; Australian Crime Commission v NTD8 [2009] FCAFC 86; C Incorporated v Australian Crime Commission [2010] FCAFC 4.

[86] However, as Cooper J observed in a different context in FH Faulding & Co Ltd v Cmr of Taxation (1994) 54 FCR 75 (at 126):

Provided that the pre-conditions for the use of power are satisfied and that the power is used ... to discharge the statutory duty ... no other limitations beyond those required by the Act or the general body of administrative law ought to be applied to the exercise of power ...

[87] We are satisfied that there is no statutory requirement in s 29 that the time given in a notice be a specified time, rather than "forthwith".

[88] The appellant's second argument was that it is unreasonable to issue a notice requiring production "forthwith" of the documents in Sch A of the notice.

[89] The appellant argues that, on the face of the notice, "forthwith" is an unreasonable time in which to produce these documents due to the extent of the records required.

[90] However, there was no evidence led at trial that the appellant could not produce these documents "forthwith". The documents in Pt A of Annex A may not have existed, or these documents may well have been contained on the forensic DVDs. There is no evidence one way or the other. It cannot be concluded on the face of the notice that production of the documents specified in Sch A "forthwith" was impossible. In the absence of evidence to support that proposition, the court rejects the appellant's argument in this regard.

[91] The appellant submits that "forthwith" can never be a time specified in a notice under s 29 because it could never give the citizen the opportunity of exercising the limited rights which the citizen is given. These rights are identified by counsel for the appellant as: a right to the opportunity to assess whether the documents sought are in fact relevant to a special ACC investigation; a right to obtain legal advice; and the right to consider the exercise of s 57 of the Act, which applies the Administrative Decision (Judicial Review) Act 1977 (Cth) (the AD(JR) Act). The appellant submits that the requirement that documents be produced "forthwith" does not allow a citizen the time to pursue those rights.

[92] The appellant draws the first right, the right to assess whether the documents sought are in fact relevant to a special ACC investigation, from the requirement in s 29 that the documents produced be relevant to the special investigation. We do not accept that the words used in s 29 give rise to a right of the kind proposed. Indeed, even if such a right exists, neither the appellant nor his counsel made any objection at the examination on 19 February 2004 to the notice to produce on the ground that the DVDs were not relevant, or that Mr Egglishaw wished to discover whether they were relevant. Therefore, even if this right exists under s 29, the appellant chose not to exercise it.

[93] We accept that, in regards to a s 29 notice, legal professional privilege is not abrogated by the Act. We accept that the appellant had a right to legal counsel. Mr Egglishaw exercised that right on 19 February 2004 when he conferred with his Queen's Counsel. It cannot be argued that a notice to produce "forthwith" will never allow a citizen the opportunity to obtain legal advice, when clearly in this case that is precisely what occurred.

[94] The final right identified, that which arises under s 57 of the Act applying the AD(JR) Act, could also have been exercised by the appellant at the time the notice was served. He was accompanied by counsel who could have advised Mr Egglishaw not to produce the documents or things, and instead pursue s 57. The appellant was given time to confer with counsel despite the requirement of "forthwith"; there was no objection raised concerning the time for production, nor any request for more time to consider the appellant's position. That Mr Egglishaw did not exercise his rights under the Act does not mean that the requirement of producing "forthwith" made the exercise of those rights impossible. The court is not persuaded that this is the case.

[95] Finally, the appellant sought to raise an argument in oral submissions that the production of the DVDs under the s 29 notice was an abuse of power. No such ground was identified in the notice of appeal or in the appellant's written submissions. No such ground was identified in the original pleadings at trial. Despite the plainest of inquiries from the Bench as to whether the appellant wished to seek to amend, or add to, the grounds in the Notice of Appeal, no such application was ever made.

[96] However, counsel for the appellant pursued an argument that the production of the DVDs was instead beyond power. This is because the ACC could not have known that the DVDs contained material relevant to a special ACC investigation.

[97] The notice to produce clearly states that the appellant must produce the document and things in the Sch "being documents and things that are relevant to the said special investigation". The appellant was required only to produce those things which were relevant. The fact is that the appellant, accepting that the DVDs were copies of the hard drive of his notebook computer, produced the discs. There was no evidence the contents of his computer were unknown to him. He produced the discs pursuant to a notice that required documents or things relevant to a special investigation the subject of the determination of the Board of the ACC on 13 May 2003. The appellant had been provided with a copy of that determination days earlier. There is no evidence that there was any doubt on the appellant's part as to the contents of the discs or their relevance to the investigation.

[98] In these circumstances, it was not beyond power for the Commission to require production of the documents and things specified in the notice, even if it be the case that officers of the Commission merely suspected that the contents of the discs were relevant. That the appellant produced the 2 DVDs bears on whether they were "relevant to the special investigation".

[99] The notice to produce issued on 19 February 2004 was valid.

[100] For the above reasons, all of the grounds of appeal which the appellant sought to argue fail

[101] The appeal is dismissed, with costs.