53 affidavit) and submitted in the DPC’s written submissions. It should be noted that during the course of the hearing, the DPC withdrew its allegations of abuse of process. It will not, therefore, be necessary to consider and rule on the substance of the allegation, but it will be necessary to make some observations in relation to the allegation later in the judgment. 12. Whether PDD/DPC’s Procedure is Amenable to Judicial Review (a) Summary of Parties Positions (1) The DPC 108.
In its statement of opposition, the DPC pleaded, essentially by way of a preliminary
objection, that the PDD was not amenable to judicial review as it was a preliminary document and made clear that no action would be taken by the DPC pursuant to its contents (para. 4). The DPC further denied that the Court was entitled to “supervise decisions of a regulator, such as the [DPC], to commence an inquiry, in particular (and without limitation), given that the commencement of the said inquiry does not have any legally cognisable consequences” and given the terms of the PDD itself (para. 11). At para. 12, the DPC pleaded that “discretionary regulatory decisions” of a regulator, such as the DPC, in deciding which issues or entities to investigate were not amenable to judicial review and, in the alternative, it denied that the Court was entitled to supervise such “discretionary regulatory decisions” (para. 12). Finally, in this context, the DPC denied that the Court was entitled to supervise “the investigatory activities of a regulator” such as the DPC (para. 14). 109.
The position adopted by the DPC in its written submissions and in its oral
submissions at the hearing was somewhat less ambitious in terms of the amenability to judicial review of the PDD and the procedures determined by the DPC for the own-volition inquiry notified to FBI. In its written submissions, the DPC stressed the preliminary nature of the PDD which it described as a “preliminary statement of views” and “simply an initiating
