Case: A. B. Pty Limited v Australian Crime Commission [2009] FCA 119
Outcome: discussed
applicant referred to the decision in Ganke v Deputy Commissioner of Taxation of the Commonwealth of Australia (1975) 25 FLR 98 and submitted that the examiner was bound under the ACC Act to allow a reasonable time for the production of the documents and things and that the respondent bore the onus of establishing that "forthwith" was a reasonable time. After the hearing, the applicant wrote to my chambers and referred me to the decision of Flick J in A. B. Pty Limited v Australian Crime Commission [2009] FCA 119. In that case, his Honour referred to a number of factors which are to be considered in determining objectively whether the period of time allowed for production in a notice under s 29 is reasonable. He said (at [61]): "The objective surrounding circumstances would include the breadth of each particular notice and (perhaps) the need for a recipient to construe the terms of a notice; the classes of documents required to be produced; the apparent ability of the recipient to collate and thereafter produce the documents; the time of the year at which a notice is served and intervening disruption to business activities by reason of public or religious holidays; whether there has been a prior attempt to require the production of the same or similar documents; and the time in fact allowed. Some consideration could also be given to the amount of time an examiner thought appropriate; although that consideration would not be decisive." The ACC Act gives the examiner the power to fix the time for production and this is not a case in which an Act is silent on the time within which a statutory obligation must be performed. In other words, this is a not a case in which the law must imply a requirement that the performance of a statutory obligation must take place within a reasonable time because, under the ACC Act, the examiner has the power to fix the time for performance. However, as the decision in A. B. Pty Limited v Australian Crime Commission [2009] FCA 119 illustrates, that does not mean that the examiner's decision as to the time within which documents or things must be produced is unexaminable. I do not need to examine in detail the grounds upon which an examiner's decision as to the time for production may be successfully challenged because I am satisfied that "forthwith" was a reasonable time in the circumstances of this case, or at least that the applicant has not established that an examiner could not reasonably take the view that it was a reasonable time. The documents or things in issue in this case were in the possession of the respondent on 19 February 2004. The applicant was present at an examination on 19 February 2004 and he was accompanied by his senior counsel and by his solicitor. The documents or things were handed to him and then he was served with the notice to produce. He then produced the documents or things in issue. He did not need time within which to locate the documents or things he was to produce and he had the opportunity "on the spot" to obtain legal advice. I reject the fourth ground of challenge to the notice to produce. The applicant's fifth ground of challenge to the notice to produce is that the notice was invalid because the examiner did not record in writing his reasons for issuing the notice until after the notice was issued. This ground raises the same matters as are raised in relation to the same ground with respect to the summons. For the same reasons, I reject this ground of challenge (at [55]-[66]). Conclusion All grounds of challenge to both the summons and the notice to produce fail and the proceeding must be dismissed. The applicant must pay the respondent its costs of the proceeding. I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 14 September 2009 Counsel for the Applicant: Mr M Abbott QC with Mr A Thomas Solicitor for the Applicant: Iles Selley Lawyers Counsel for the Respondent: Ms S Maharaj QC with Mr R Prince Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5, 6 February 2009 Date of Judgment: 14 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1027.html