Ex parte application for examination orders – Ng v Commissioner of the Australian Federal Police

On 29 November 2019, the WA Court of Appeal (Murphy and Mitchell JJA) delivered reasons in Ng v Commissioner of the Australian Federal Police [2019] WASC 195.

Facts

Restraining orders and examination orders had been made ex parte by the primary judge. The day before the examination was to proceed, the proposed examinees applied on an interlocutory basis to stay the examinations pending the final hearing of their appeal. They argued that the appeal would be rendered nugatory if the examination proceeded.

The grounds of appeal included that the primary judge had failed to give reasons for making the examination order ex parte and that the making of ex parte examination orders was constitutionally invalid.

Refusal of stay

The Court refused the stay on the basis that, if the appeal was later to succeed, steps could be taken to prevent any person who had access to the examination material from continuing to be involved in the litigation. The Court stated (at [30]):

So far as the appeal seeks to impugn the making of the examination orders, the appellants will not be left without remedy if the appeal is allowed and the examination orders are set aside.  The respondent accepted that if the appeal were to be allowed and the examination orders were to be set aside, orders could be fashioned requiring those persons who had access to the materials derived from the examination to take no further part in the primary proceedings.  In addition, orders could be made restricting the use and disclosure of confidential information obtained in any examination conducted pursuant to an examination order which this court ultimately determines should not have been made.  If the appeal were to be successful and the examination orders were to be set aside, the making of the above additional orders would be an aspect of the power, normally implicit in the conferral of appellate jurisdiction, to make orders unravelling the practical consequences of implemented orders which are set aside on appeal.

It must be noted that appellants were self-represented and may not have articulated the substantial prejudice arising from the fact that an examinee is not entitled to claim the privilege against self incrimination and the consequent impact that that could have on the manner in which the criminal case can thereafter be defended.

Authorities on ex parte examination orders

The Court referred (at [35]) to the observations in Onley v Commissioner of the Australian Federal Police (2019) 367 ALR 291 (Onley), in which the Court noted that:

Section 182(2) requires the court to consider an application for an examination order made without notice, if the authority seeking the order requests the court to do so. However, circumstances which justify the making of an order will not necessarily justify the making of an order ex parte.” [Emphasis added]

There is now substantial authority for the proposition that an examination order ought not be made ex parte.

For example, in Commissioner of the Australian Federal Police v Steffan Treptower [2018] NSWSC 677, Button J refused an ex parte examination order application and stated (at [15]):

In short, in my opinion this is not the kind of matter whereby things must be done ex parte, otherwise the whole purpose of the proceedings will be set at naught.  To the contrary, I think that this is the kind of matter that cries out for hearing from the other side. [Emphasis added]

Also, in Commissioner of Australian Federal Police v  Li [No 2] [2018] WASC 359, Archer J stated (from [102]):

I accept that the application for an examination order was brought in the restraint proceedings.  However, that does not mean that an examination order made without notice to the respondent in the restraint proceedings would thereby be ex parte.

The Proceeds of Crime Act permits the Commissioner to seek an examination order of a person.  The Act regulates how an application is to be made, the conduct of such examinations, and how the evidence obtained is to be treated.  In the context of the Act as a whole, it is clear that the proper parties to applications for examination orders and the hearings of such examinations are the applicant and the proposed examinee.

Riordan J in Re Application by the Commissioner of the Australian Federal Police [2015] VSC 774 described it as “not appropriate” to make examination orders ex parte.

It is clear from these authorities that, where the Commissioner seeks an ex parte examination order, the judge determining the application ought to be made aware of the above authorities.

In short, it is hard to imagine any prejudice to the Commissioner in having to apply for an examination order inter partes.

Power to set aside ex parte examination order

There is a conflict in the authorities as to whether an ex parte examination can be set aside, other than by way of appeal.

The majority in Onley held that there was no power to set aside or vacate an examination order, whether made ex parte or not.  The majority found that the only remedy available to the subject of an examination order made ex parte was to apply for a stay of the order under s 319 of the Act.

In contrast, in Ruzehaji v Commissioner of the Australian Federal Police (2015) 124 SASR 355, the Court stated:

there is no barrier to a person against whom an order is made applying to revoke or vary that order and relying on any material or arguments they wish in support of such an application. Finally, the grounds on which an application to revoke or vary an examination order made ex parte could include any failure to make full and frank disclosure in the ex parte application.

The position has not been resolved in Victoria. However, if it were the case that an ex parte examination order could not be challenged inter partes, then the power conferred to make such orders may well be constitutionally invalid (which is what the Appellants contend in Ng and which was determined by Murphy and Mitchell JJA to be arguable).

Conclusion

In short, the Commissioner ought not obtain examinations orders ex parte given the weight of authority referred to above and by reason of the fact that no prejudice could arise (other than in some exceptional case) in having to give notice.

Moreover, the Court’s discretion in deciding whether to make an examination order may well be influenced by whether a quarantining order is made under section 266A of the Proceeds of Crime Act 2002 (such as discussed in Commissioner of the Australian Federal Police v Surinder Kaur [2016] VSC 423). In order to determine the scope of any quarantining order, the Court would need to hear from the proposed examinee.