FEDERAL CIRCUIT COURT OF AUSTRALIA
REBELUTION PTY LTD & ANOR v COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE	[2015] FCCA 338	

Catchwords: 
ADMINISTRATIVE LAW – Whether the Court has jurisdiction under the Mutual Assistance in Criminal Matters Act 1987 – summary dismissal – application dismissed.	

Legislation:  
Administrative Decisions (Judicial Review) Act 1977
Acts Interpretation Act 1901
Federal Circuit Court of Australia Act 1999
Federal Circuit Court Rules 2001
Judiciary Act 1903
Jurisdiction of Courts Legislation Amendment Bill 2000
Proceeds of Crimes Act 2002	

Bollag v The Attorney-General of the Commonwealth [1997] FCA 1146
Dunn v The Australian Crime Commission [2009] FCAFC 16
Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd (2001) VSCA 167
Gant v Commissioner of the Australian Federal Police [2006] FCA 1475
Richmond v BMW Australia Finance Ltd (No.2) [2009] FCAFC 25
Semann v Poidevin (No.2) [2013] NSWSC 694
Spencer v Commonwealth of Australia (2010) 241 CLR 118
X7 v Australian Crime Commission (2009) HCA 29	

First Applicant:	Rebelution Pty Ltd	

Second Applicant:	Ana rastorgova	

Respondent:	Commissioner Of The AustraliaN Federal Police	

File Number:	SYG 156 of 2015	

Judgment of:	Judge Street	

Hearing date:	12 February 2015	

Date of Last Submission:	12 February 2015	

Delivered at:	Sydney	

Delivered on:	12 February 2015	

REPRESENTATION
Counsel for the Applicant:	Mr Miralis	

Solicitors for the Applicant:	Nyman Gibson Miralis Defence Lawyers	

Counsel for the Respondent:	Mr Melican	

Solicitors for the Respondent:	Australian Government Solicitor	

ORDERS
(1)	Application be dismissed. 
(2)	The Applicant pay the Respondent’s costs as agreed or assessed.   

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Sydney	
SYG 156 of 2015
Rebelution Pty Ltd	
First Applicant

Ana rastorgova	
Second Applicant

And

Commissioner Of The AustraliaN Federal Police	
Respondent

REASONS FOR JUDGMENT
1.	The applicant filed an originating process in this Court for joining as the respondent the Commissioner of the Australian Federal Police and sought relief under s.13(4)(a) of the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) as follows:
	1. A declaration that the applicant was entitled to request reasons for a decision of the respondent.
2.	There was no identification in the application of the decision or the decision under the enactment.  However, by reference to correspondence attached to the affidavit filed in support of the application, there is a request for reasons in a letter dated 26 November 2014 addressed to the Commissioner of Australian Federal Police as follows:
	Pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977, we herein request the reasons for decision to make a request and/or provide information to the Russian Federation for assistance under mutual assistance legislation, or any other treaties between Australia and Russia, and/or between the Australian Federal Police and law enforcement authorities in Russia or any other organisation in Russia with respect to the alleged offences of Anna Rus Corba and/or Rebelution Limited. Emphasis added.
3.	It is clear that the request being made relates to alleged offences by the applicants. Those alleged offences were the subject of civil proceedings under the Proceeds of Crimes Act 2002, which was resolved and the charges have not been pursued to date. The response to the request by the Commissioner was one that there had been no such decision made by the Commissioner.  
4.	In the response filed on behalf of the Commissioner, it was identified that the Commissioner was not the proper party to any such proceedings, that the Commissioner cannot make a decision under Mutual Assistance in Criminal Matters Act 1987 and that only the Attorney-General could make such an application and that the matter ought to be summarily dismissed.  
5.	It was in those circumstances and the return of this matter in which the application squarely identifies that “the Court will hear the application and/or make orders for the conduct of the proceedings at the time and place specified below” that the Court raised the concern as to whether the matter as framed was one which appeared to have no prospect of success so as to warrant exercise of this Court’s jurisdiction under s.17A of the Federal Circuit Court of Australia Act 1999 and under r.13.10.  
6.	The Court raised also with the solicitor for the applicant the concern of the Court as identified above as well as raising the issue of the application of s.9A of the AD(JR) Act and specifically that the decision appeared to be in connection with the criminal justice process. The court provided a copy of the decision of Collier J Gant v Commissioner of the Australian Federal Police [2006] FCA 1475 to the parties.
7.	It is the principal duty of the Court in respect of any alleged controversy sought to be brought in proceedings before a Chapter III Federal Court to ensure that the basis of the jurisdiction invoked is properly identified. Section 8 of the AD(JR) Act does confer jurisdiction on this Court subject to the provisions of the Act. 
8.	Section 9A provides as follows:
	Limitation of jurisdiction to review related criminal justice process decisions
(1)	Subject to subs.(2), at any time when:
(a)	a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any Court;  or
(b)	an appeal arising out of such a prosecution is before any Court;  
	no Court has jurisdiction to hear, continue to hear or determine an application under this Act, by the person who is or was the defendant in the prosecution, in relation to a related criminal justice process decision.
(2)	Subs.(1) does not apply if an applicant has commenced an application under this Act before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.
(3)	Where subs.(2) applies, the prosecutor may apply to the Court for a permanent stay of proceedings in the hearing and determination of the application and the Court may grant such a stay if the Court determines that: 
(a)	the matters that are the subject of the application are more appropriately dealt with in the criminal justice process;  and
(b)	a stay of proceedings will not substantially prejudice the applicant.
(4)	In this section:
	"appeal" includes an application for a new trial and a proceeding to review or call in question the proceedings, decision or jurisdiction of a Court or judge.
	"related criminal justice process decision" , in relation to an offence, means:
(a)	a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:  
(i)	a decision in connection with the investigation, committal for trial or prosecution of the defendant;  and
(ii)	 a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation;  and
(iii)	a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant;  and 
(iv)	a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses;  and
(v)	a decision in connection with an appeal arising out of the prosecution;  or 
(b)	a decision of the Attorney-General to give a certificate under s.26 or 28 of the National Security Information (Criminal and Civil Proceedings) Act 2004 before or during a federal criminal proceeding (within the meaning of that Act) in relation to the offence.
	Note:  A decision to prosecute a person for an offence is not reviewable under this Act: see paragraph (xa) of Schedule 1.
9.	Section 13 provides as follows:
	(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Circuit Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. 
	(2) Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request. 
	(3) Where a person to whom a request is made under subsection (1) is of the opinion that the person who made the request was not entitled to make the request, the first-mentioned person may, within 28 days after receiving the request: 
	(a) give to the second-mentioned person notice in writing of his or her opinion; or 
	(b) apply to the Federal Court or the Federal Circuit Court under subsection (4A) for an order declaring that the person who made the request was not entitled to make the request. 
	(4) Where a person gives a notice under subsection (3), or applies to the Federal Court or the Federal Circuit Court under subsection (4A), with respect to a request, the person is not required to comply with the request unless: 
	(a) the Federal Court or the Federal Circuit Court, on an application under subsection (4A), declares that the person who made the request was entitled to make the request; or 
	(b) the person who gave the notice under subsection (3) has applied to the Federal Court or the Federal Circuit Court under subsection (4A) for an order declaring that the person who made the request was not entitled to make the request and the court refuses that application; 
	and, in either of those cases, the person who gave the notice shall prepare the statement to which the request relates and furnish it to the person who made the request within 28 days after the decision of the court. 
	(4A) The Federal Court or the Federal Circuit Court may, on the application of: 
	(a) a person to whom a request is made under subsection (1); or 
	(b) a person who has received a notice under subsection (3); 
	make an order declaring that the person who made the request concerned was, or was not, entitled to make the request. 
	(5) A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and furnish the statement if: 
	(a) in the case of a decision the terms of which were recorded in writing and set out in a document that was furnished to the person who made the request--the request was not made on or before the twenty-eighth day after the day on which that document was so furnished; or 
	(b) in any other case--the request was not made within a reasonable time after the decision was made; 
	and in any such case the person to whom the request was made shall give to the person who made the request, within 14 days after receiving the request, notice in writing stating that the statement will not be furnished to him or her and giving the reason why the statement will not be so furnished. 
	(6) For the purposes of paragraph (5)(b), a request for a statement in relation to a decision shall be deemed to have been made within a reasonable time after the decision was made if the Federal Court or the Federal Circuit Court, on application by the person who made the request, declares that the request was made within a reasonable time after the decision was made. 
	(7) If the Federal Court or the Federal Circuit Court, upon application for an order under this subsection made to it by a person to whom a statement has been furnished in pursuance of a request under subsection (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons. 
	(8) The regulations may declare a class or classes of decisions to be decisions that are not decisions to which this section applies. 
	(9) Regulations made under subsection (8) may specify a class of decisions in any way, whether by reference to the nature or subject matter of the decisions, by reference to the enactment or provision of an enactment under which they are made, by reference to the holder of the office by whom they are made, or otherwise. 
	(10) A regulation made under subsection (8) applies only in relation to decisions made after the regulation takes effect. 
	(11) In this section, decision to which this section applies means a decision that is a decision to which this Act applies, but does not include: 
	(a) a decision in relation to which section 28 of the Administrative Appeals Tribunal Act 1975 applies; 
	(b) a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision; or 
	(c) a decision included in any of the classes of decision set out in Schedule 2. (Emphasis added)
10.	Schedule 2 relevantly provides as follows:
	(e) decisions relating to the administration of criminal justice, and, in particular: 
	(i) decisions in connection with the investigation, committal for trial or prosecution of persons for any offences against a law of the Commonwealth or of a Territory; 
11.	In the decision of Gant v Commissioner of Australian Federal Police which is binding on this Court, Collier J identified the breadth of meaning in respect of the words “in connection with” and “in relation to”.  
12.	The solicitor for the applicant sought to save the process by suggesting that it could be amended and there might be a joinder of the Attorney-General.  It was put that there were not a prosecution “before any court”. It was further put that this Court should adopt an approach that s.9A should be read down by reference to Schedule 1 of the AD(JR) Act and that because the Mutual Assistance in Criminal Matters Act 1987 was not one of the statutes expressly excluded, s.9A should be somehow read down.  I reject that construction of s.9A.
13.	The Court is required to construe the statutory provision read in its context consistent with the language and legislative object.  That legislative object was touched upon in the second reading speech introducing s.9A by the former federal Attorney-General Daryl Williams in the second reading speech to the Jurisdiction of Courts Legislation Amendment Bill 2000, Schedule 2 of which inserted s 9A ADJR Act and s 39B Judiciary Act 1903. In particular, the Attorney-General said:
	‘The object is to avoid the use of unmeritorious delaying tactics in the criminal justice process by removing the collateral access of defendants to federal administrative law procedures and remedies.
...
Defendants will not, at any time, be able to use the AD(JR) Act to challenge decisions to prosecute. Nor will they be able to use that act to challenge other decisions in the criminal justice process after a prosecution or appeal has commenced.
	
Further, defendants in state and territory courts will not be able to rely on section 39B of the Judiciary Act to bring an application in the Federal Court to review decisions of Commonwealth officers made in the prosecution process. The 39B jurisdiction will in that case be removed from the Federal Court and conferred on state and territory supreme courts.
	
Section 39B of the Judiciary Act is also to be amended so that, when a prosecution for an offence or an appeal arising out of a prosecution is before a court other than the Federal Court, the Federal Court will not have jurisdiction to hear an application made by the defendant in relation to a decision in the criminal justice process relating to that offence.’ (Index to Parliamentary Debates (Hansard) 2000 First Session of the Thirty-ninth Parliament, House of Representatives vol 231, 8 March 2000 p 14111)
14.	It is crystal clear, from the applicant’s letter, that the decision in respect of which it was sought to obtain a compulsory requirement for reasons under s.13 was one:
	With respect to alleged offences of Ana Rastorgova and/or Rebelution Ltd.  
15.	In my opinion, such a decision would clearly be one in connection with the investigation, committal for trial, or prosecution of the defendant.  It was put by the solicitor for the applicant that there were no criminal proceedings on foot, however, alleged charges of a kind that invoke the Proceeds of Crime Act, once brought are in my opinion within the meaning of “before a court”, which language consistent with the legislative object should be given a broad construction, see X7 v Australian Crime Commission (2009) HCA 29 at [21], [45-46], [97-101], [110]. 
16.	 In this regard I particularly take into account, as to the legislative object in accordance with s. 15AA of the Acts Interpretation Act 1901 what the Federal Attorney-General, Daryl Williams, said:
	Defendants will not, at any time, be able to use the AD(JR) Act.
17.	Relevantly, in looking at the language of the Act it is clear that it extends beyond decisions to prosecute, and extends to a decision in connection with the investigation, committal for trial, or prosecution of the defendant before any court.  
18.	Given the reference to a request for reasons in respect of the decision, with respect to the alleged offences of Ana Rastorgova and Rebelution Ltd, I am of the opinion that the matter squarely falls within s.9A, for the reasons identified by Collier J in relation to the construction of s.9A.  In those circumstances, this Court has no jurisdiction under the AD(JR) Act.
19.	Even if the matter did not squarely fall within the exclusion under s.9A the same reasoning as to breadth of construction applies to Schedule 2 para.(e).  Even if, contrary to the view I have expressed, there was no prosecution before any court within the meaning of s.9A the decision concerning the alleged offences in this case relates to the administration of criminal justice within Schedule 2 para.(e) and s.13 has no application.
20.	In the above circumstances, there is no utility in entertaining the application for an adjournment to join further parties, or to amend the application.  
21.	I should note that the solicitor for the applicant did seek an adjournment for the purpose of putting further submissions to the Court in relation to the jurisdiction and provisions of the ADJR Act. This Court is clearly satisfied it is bound by the decision in Gant v The Commissioner of Australian Federal Police [2006] FCA 1475, and is clearly of the view that the proceedings have no reasonable prospect of success.  I take into account, in that regard, the principles referred to in Spencer v Commonwealth of Australia (2010) 241 CLR 118 and the caution that must be used in exercising a summary jurisdiction.   
22.	The solicitor for the applicant referred to the decisions of the Court in Bollag v The Attorney-General of the Commonwealth [1997] FCA 1146, and Dunn v The Australian Crime Commission [2009] FCAFC 16.  Neither of those cases, in my opinion, assist the applicant in relation to the application of the construction principles in Gant v The Commissioner of Australian Federal Police, supra, and the exclusion of s.13 worked by s.9A and/or by Schedule 2 para.(e) in the circumstances of the present case.
23.	There is no utility in an adjournment, other than the incurring of further costs, which is contrary to the clear objectives of just efficient and economical resolution of the proceedings. I am clearly satisfied the proceedings as framed are doomed to failure and that this court has no jurisdiction to grant relief under s.13 in this case.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  
24.	This judgment was delivered ex tempore in open court and being an interlocutory order in the nature of a summary dismissal for want of jurisdiction was not a final determination on the merits.  The order not having yet been entered remained one in respect of which this Court under r.16.05(1) has power to correct the reasons in its interlocutory order to reflect the intention of the Court, Semann v Poidevin (No.2) [2013] NSWSC 694. 
25.	The ex tempore reasons in open court omitted reference to Schedule 2 para.(e). The ex tempore reasons were intended to identify that the Court lacked jurisdiction under s.13 because any decision was in connection with the investigation, committal for trial or prosecution of the applicants in respect of alleged offences thereby being a decision relating to the administration of criminal justice. The intention of the court on which its reasons were based was to refer to the statutory exclusion of jurisdiction under s.13 as any alleged decision within the prayer for relief, even if properly framed and with the correct party, was one relating to the administration of criminal justice.
26.	The manifest intention was to summarily dismiss the application by reason of the defects referred to above and the want of jurisdiction under s.13 in respect of the alleged decision relating to the administration of criminal justice. In these circumstances the omission of reference to Schedule 2 para.(e) was not a different reason for the basis of the decision that prevents correction of the reasons in this case. Further, in this case, the correction of the ex tempore reasons to refer to Schedule 2 para.(e) is not an alteration of reasons that impedes the administration of justice, the alteration works no unfairness on the parties and further the alteration accords with the practical requirements of justice, Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd (2001) VSCA 167at [49-51].
27.	Further this court, like a superior court of record, has power to pronounce its orders and to deliver reasons at a later date, Richmond v BMW Australia Finance Ltd (No.2) [2009] FCAFC 25 and in the present case in respect of interlocutory orders that have not been entered the correction of the reasons to refer to Schedule 2 para.(e) is within the powers conferred by r.16.05(1). 
28.	For the above reasons I am satisfied the proceedings are not within the court’s jurisdiction and have no reasonable prospect of success. 
29.	In those circumstances, the application is summarily dismissed.  
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  17 February 2015