Chen v Commissioner of the Australian Federal Police [2017] FCA 1558

Chen v Commissioner of the Australian Federal Police [2017] FCA 1558

Ms Chen failed to satisfy r 7.23(1)(a) because her asserted belief that she may have a right to relief by setting aside the search warrants was not held on reasonable objective grounds. Her case rose no higher than conjecture or surmise about the bare possibility that the affidavit before the magistrate was legally insufficient, and was not enough given the low threshold for issuing search warrants under s 3E of the Crimes Act 1914 (Cth) and the objective nature of the suspected offence under s 400.9(1) of the Criminal Code (Cth).

Jurisdiction
Australia
Judgment Date
21 December 2017
Procedural Posture
Application for Preliminary Discovery Under R 7.23 of the Federal Court Rules 2011 (cth) in Contemplation of Judicial Review of Search Warrants Issued Under S 3 E of the Crimes Act 1914 (cth) / Interlocutory Application for Preliminary Discovery
Outcome
The interlocutory application for preliminary discovery was dismissed, with costs to the prospective respondent.
Legal Topics
['preliminary Discovery' 'search Warrants' 'judicial Review' 'reasonable Belief of Right to Relief' 'proceeds of Crime' 'sufficiency of Information Before Issuing Officer']
['practice and Procedure' 'criminal Law' 'federal Crime and Related Proceedings'] ['preliminary Discovery' 'search Warrants' 'judicial Review' 'reasonable Belief of Right to Relief' 'proceeds of Crime' 'sufficiency of Information Before Issuing Officer']

Case Brief

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Procedural Posture

Application for Preliminary Discovery Under R 7.23 of the Federal Court Rules 2011 (cth) in Contemplation of Judicial Review of Search Warrants Issued Under S 3 E of the Crimes Act 1914 (cth) / Interlocutory Application for Preliminary Discovery

Legal Issues

  1. 1 ['Whether Ms Chen reasonably believed that she may have a right to obtain relief in the Court from the Commissioner for the purposes of r 7.23(1)(a) of the Federal Court Rules 2011 (Cth).' 'Whether the asserted belief that the search warrants may be set aside was supported by reasonable objective grounds, given the low threshold for issuing search warrants under s 3E of the Crimes Act 1914 (Cth).' 'Whether Ms Chen established a basis for preliminary discovery of the affidavit relied upon to obtain the search warrants.']

Ratio Decidendi

Ms Chen failed to satisfy r 7.23(1)(a) because her asserted belief that she may have a right to relief by setting aside the search warrants was not held on reasonable objective grounds. Her case rose no higher than conjecture or surmise about the bare possibility that the affidavit before the magistrate was legally insufficient, and was not enough given the low threshold for issuing search warrants under s 3E of the Crimes Act 1914 (Cth) and the objective nature of the suspected offence under s 400.9(1) of the Criminal Code (Cth).

Court Disposition

The interlocutory application for preliminary discovery was dismissed, with costs to the prospective respondent.

Orders

  • ['The interlocutory application for preliminary discovery be dismissed.' "The prospective applicant pay the prospective respondent's costs as assessed or agreed."]