Luppino v Fisher [2018] FCA 2106

Luppino v Fisher [2018] FCA 2106

The proposed interlocutory orders would infringe the plaintiff's common law privilege against self-incrimination, as compliance may provide evidence for prosecution under s 3LA(5) of the Crimes Act 1914 (Cth); there is no statutory exception or justification under s 16 of the ADJR Act or s 23 of the FCA Act, so the orders should not be made.

Parties
Plaintiff: Daniel Luppino; First Defendant: Gregory Charles Fisher; Second Defendant: Commissioner of the Australian Federal Police
Jurisdiction
Australia
Judgment Date
19 December 2018
Procedural Posture
Interlocutory Application / Decision on Interlocutory Application
Outcome
Application dismissed
Legal Topics
Privilege Against Self Incrimination, Disclosure of Passwords, Interlocutory Relief
Criminal Law Privilege Against Self Incrimination Disclosure of Passwords Interlocutory Relief

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Parties

Daniel Luppino

Plaintiff

Gregory Charles Fisher

First Defendant

Commissioner of the Australian Federal Police

Second Defendant

Procedural Posture

Interlocutory Application / Decision on Interlocutory Application

Legal Issues

  1. 1 Whether the Court should make an interlocutory order requiring the plaintiff to disclose passwords to a mobile device pending resolution of challenge to s 3LA order
  2. 2 Whether the privilege against self-incrimination applies to the proposed orders

Ratio Decidendi

The proposed interlocutory orders would infringe the plaintiff's common law privilege against self-incrimination, as compliance may provide evidence for prosecution under s 3LA(5) of the Crimes Act 1914 (Cth); there is no statutory exception or justification under s 16 of the ADJR Act or s 23 of the FCA Act, so the orders should not be made.

Court Disposition

Application dismissed

Orders

  • The reference to the "Third Defendant" in Order 4, 7 and 8 in the orders made on 6 December 2018 is amended to read the "Second Defendant".
  • The Second Defendant's Interlocutory Application of 10 December 2018 is dismissed.