Waterhouse v The Independent Commission Against Corruption (No.3)

1. [1]

   On 21 March 2013, Mr Martin Otto Waterhouse, as plaintiff, commenced proceedings by filing a Statement of Claim, naming the Independent Commission Against Corruption (“the Commission”) as the defendant.

2. [2]

   On 27 June 2013, pursuant to leave, the plaintiff filed an Amended Statement of Claim, and now proceeds upon that Amended Statement of Claim.

3. [3]

   The Amended Statement of Claim seeks 19 declarations with respect to the conduct of the Commission and, as well, eight further orders.

4. [4]

   It is convenient to set out two orders which in my assessment are the central orders upon which the plaintiff must succeed to obtain any relief. They are:

5. [5]

   It is unnecessary to set out here the terms of the declarations which are sought. In short, the plaintiff seeks that the Commission be compelled to undertake an investigation and public inquiry, with particular features, into the allegations set out in his complaint to it. It is appropriate to note that paragraphs 1-19 are expressed as “A declaration or other order pursuant to s 65 of the Supreme Court Act …”. Having regard to the subject matter of these paragraphs, these are prayers for declarations and I will treat them as such.

Procedural History

1. [6]

   After the Amended Statement of Claim was filed, the Commission filed a Motion on 18 July 2013, seeking summary dismissal of the proceedings, or alternatively, seeking that the Amended Statement of Claim be struck out.

2. [7]

   This Motion was responded to by the plaintiff filing a Motion on 1 August 2013, seeking summary judgment upon his claim and other ancillary relief. On 24 February 2014, Mr Waterhouse filed a further Notice of Motion seeking, amongst other things, the disqualification of the judge appointed to hear the matter.

3. [8]

   The proceedings were fixed to commence hearing on 1 April 2014. By the agreement of the parties, the disqualification Motion filed 24 February 2014, was heard first. Full argument was taken on the Motion and judgment was reserved until the following day.

4. [9]

   On 2 April 2014, for the reasons delivered orally, I declined to uphold the plaintiff’s Motion for disqualification, and determined that I would proceed to hear and dispose of the proceedings which were before the Court: see Waterhouse v Independent Commission Against Corruption [2014] NSWSC 424.

5. [10]

   At the end of the disqualification argument on 1 April 2014, an issue arose as to whether, in light of the nature of the relief sought by both the plaintiff and the Commission, namely summary relief, in circumstances of little dispute as to relevant fact, the overriding purpose of the Civil Procedure Act 2005 was better served by proceeding to a full hearing of all of the issues rather than dealing with competing Motions, one for summary judgment by the plaintiff, and the other for summary dismissal by the Commission.

6. [11]

   On 2 April 2014, having had the opportunity to reflect on the matter, both parties agreed that the Court should proceed to hear and determine the whole proceedings as on a final hearing. Accordingly, it became unnecessary to determine the two Notices of Motion.

7. [12]

   In order to ensure that all parties had a complete opportunity to deal with the matter on the basis of a final hearing, the Court proceeded on 2 April 2014 to take oral submissions in addition to the written submissions which had previously been filed. At the conclusion of the argument on that day, the Court made directions which had the effect of ensuring that the defendant filed a Defence to the Amended Statement of Claim, and that each party then had an ample opportunity to supplement their existing submissions, which had been made both in writing and orally, in writing. That further opportunity was granted having regard to the fact that the Court was embarked upon a final hearing and to ensure that neither party was prejudiced.

8. [13]

   It was necessary at a further interlocutory hearing, to give a ruling with respect to the verification of the Notice of Grounds of Defence by the Commission: Waterhouse v Independent Commission Against Corruption (No.2) [2014] NSWSC 1515.

9. [14]

   Upon the receipt of the final set of written submissions, the Court reserved its decision.

10. [15]

    This judgment thus deals with the final hearing of the plaintiff’s claims for relief as articulated in the Amended Statement of Claim.

11. [16]

    For the reasons which follow, the proceedings must be dismissed with costs.

Legislative Background

1. [17]

   The Commission is a statutory body constituted by s 4 of the Independent Commission Against Corruption Act 1988 (“the Act”). Section 4(2) of the Act notes that the Commission has the functions conferred or imposed upon it under the Act, or any other act.

2. [18]

   The Commissioner for the Commission is appointed pursuant to s 5 of the Act, and has, and may exercise, the functions conferred or imposed on him or her by or under the Act or any other act.

3. [19]

   The principal functions of the Commission are set out in s 13. Relevantly for the purpose of these proceedings, they are as follows:

4. [20]

   In exercising its functions, sections 12 and 12A of the Act are relevant. They are as follows:

5. [21]

   As can be observed, the central feature of the Commission’s function is the investigation of, dealing with and the deterrence of, corrupt conduct.

6. [22]

   Corrupt conduct is defined in Part 3.7 of the Act as being any conduct which falls with the description of corrupt conduct in s 8 of the Act, and which is not excluded by s 9. Section 7 provides that conduct comprising conspiracy or attempt to commit or engage in conduct that would be corrupt conduct, is to be regarded as corrupt conduct.

7. [23]

   Section 8 is in the following form:

8. [24]

   The limitations on the nature of corrupt conduct are set out in s 9 in the following form:

9. [25]

   Also of relevance to these proceedings, is the manner in which complaints may be made to the Commission about possible corrupt conduct. This is dealt with in s 10, which is in the following terms:

10. [26]

    Whether or not the Commission decides to undertake an investigation is also dealt with in s 20 of the Act which is in the following form:

11. [27]

    The Commission also has the power to conduct a preliminary investigation. That power is given by s 20A and is in the following form:

12. [28]

    It will be necessary in due course to consider the effect of these sections when considering the particular facts of these proceedings and the claims which are made.

The Nature of the Plaintiff’s Case

1. [29]

   The Amended Statement of Claim sets out the plaintiff’s claim extensively over 387 paragraphs, which occupy about 95 pages.

2. [30]

   In addition, the Amended Statement of Claim calls up further particulars which are contained in a two volume, 900 page “Brief”, which the Amended Statement of Claim pleads is in the possession of the Commission. The Commission accepts that it has been provided with the Brief.

3. [31]

   It is not unfair to say that the Amended Statement of Claim is discursive and prolix. In many paragraphs it contains pleadings in the nature of submissions which do not comply with the rules for pleading in the Uniform Civil Procedure Rules 2005 (“UCPR”) or with the authorities of this and other Courts on proper pleading.

4. [32]

   In its essence, the plaintiff claims that on 24 January 2012, he made a complaint to the Commission of serious corrupt conduct. He says that the complaint was extensively particularised and supported. It was contained in two volumes which totalled about 900 pages in length. I will refer to this as “the 2012 Complaint”. It is the same as the “Brief” to which reference has just been made.

5. [33]

   The Commission has declined to investigate the 2012 Complaint. The proceedings brought by the plaintiff here are intended to compel the Commission to investigate the 2012 Complaint. As well, the plaintiff seeks to have any such investigation conducted in a particular way.

6. [34]

   It will be convenient to give a summary of the subject matter of the Amended Statement of Claim. Necessarily, such a summary does not include every allegation, but is intended to provide a context against which the question of whether the Court should or should not grant the relief claimed, can be considered.

7. [35]

   It also needs to be understood that it is wholly unnecessary so as to be able to determine the plaintiff’s claims for relief in these proceedings, for this Court to make any findings at all about whether the allegations made by the plaintiff in the Amended Statement of Claim as to the substance and content of the 2012 Complaint, are true, are supported by any of the evidence or other material, or whether they are anything more than mere allegations.

8. [36]

   Shortly put, it is not for this Court to investigate the factual truth and correctness of the allegations of corrupt conduct in the Amended Statement of Claim which replicate those made in the 2012 Complaint.

9. [37]

   A suitable commencement point for this summary is to set out the plaintiff’s own description of what the substance of the 2012 Complaint is about. He said:

10. [38]

    At the centre of the 2012 Complaint are litigation proceedings in the Supreme Court of NSW, which were heard and determined by the late Justice John Kearney.

11. [39]

    The main proceedings before Kearney J, which were instituted by the plaintiff, his siblings and his mother, related to the administration of the Estate of his late father, Charles Otto Hercules Waterhouse, who died in 1954. Probate of the Will of the late Mr Charles Waterhouse was granted to his two brothers, Mr John Knight Waterhouse and Mr William Stanley Waterhouse. They were two of the defendants in the main proceedings. As the proceedings covered a large number of transactions across a long period, ultimately, three other individual defendants, and seventeen corporate defendants were also joined.

12. [40]

    The claims made by the plaintiffs in the Estate proceedings included that the two trustees and executors had fraudulently mismanaged the Estate; that they had profited for themselves in their capacities as fiduciaries from various trust assets; that they had appropriated money and real estate for their own benefit and had done so by concealing the transactions. In short, the plaintiffs in those proceedings claimed that they had been significantly financially disadvantaged by the conduct of the two principal defendants, Mr Jack Waterhouse and Mr William Waterhouse, who had enriched themselves at the expense of the plaintiffs, being their late brother’s wife and children.

13. [41]

    The proceedings were heard on various dates in 1989 through to 1991. They were heard by Kearney J sitting in the Equity Division of the NSW Supreme Court. Kearney J published a number of judgments commencing with Hagan v Waterhouse (1991) 34 NSWLR 308. This was followed by a decision dealing with the question of costs which is reported as Hagan v Waterhouse [No.2] (1992) 34 NSWLR 400. The plaintiffs in those proceedings lodged an appeal to the NSW Court of Appeal against the two judgments. Prior to the hearing of the appeal, the proceedings were compromised, and thus finalised.

14. [42]

    In the Amended Statement of Claim, the plaintiff says this of the first judgment of Kearney J:

15. [43]

    Shortly after those judgments were delivered, the plaintiff lodged a letter of complaint with the Attorney-General requesting an investigation into Kearney J and the manner of the conduct of the case by the Supreme Court of NSW. The plaintiff alleges, after further information came to hand, that he prepared about 250 pages of analysis of the judgment of Kearney J, which together with annexures, demonstrated “… patent perversions of justice”.

16. [44]

    The plaintiff pleads that on 6 October 1999, he delivered this analysis together with additional supporting material totalling about 450 pages, to the Commission. It is convenient to adopt the plaintiff’s description of this document as the “99 Complaint”. Although the 99 Complaint was nominally made by the plaintiff’s mother, the late Mrs Patricia Hagan, it is clear that the plaintiff was the author of it, and that it contained his views and assertions. In substance, it was a complaint made in the name of his mother, but on behalf of both his mother and himself. The plaintiff himself described it as a “joint complaint” in later correspondence with the Commission.

17. [45]

    The plaintiff then alleges that the 99 Complaint was the subject of deliberate concealment, unlawful conduct by the Commission and the Commissioner. The plaintiff also provided a copy of the 99 Complaint to the NSW Crime Commission which did not investigate the matter. The plaintiff alleges that this failure to investigate was accompanied by sinister conduct and motives.

18. [46]

    By 2001, no response had been received from the Commission to the 99 Complaint. As a consequence, the plaintiff, acting as a solicitor, brought proceedings in the Supreme Court, in which his mother was named as plaintiff, against the Commission seeking judicial review of its conduct, with respect to the 99 Complaint.

19. [47]

    It is apparent from other material before the Court that the plaintiff’s mother, Mrs Hagan, died in 2004. By consent on 10 June 2004, the judicial review proceedings were dismissed. Other orders were made.

20. [48]

    The Amended Statement of Claim goes on to allege that, notwithstanding that the plaintiff persisted with a variety of complaints, none were dealt with appropriately, or in accordance with the law. Included in these further complaints, according to the pleadings, was one to the Inspector of the Commission, who declined to deal with the matter.

21. [49]

    In October 2006, the plaintiff pleaded that he had delivered a brief of a further complaint to the then Commissioner of Police, particularising alleged misconduct in public office by the Inspector of the Commission, and also alleging misconduct in public office by the Commission and others, involving what the Amended Statement of Claim alleges was a cover up.

22. [50]

    In August 2007, the Commissioner of Police declined to take any further action with respect to the complaint made to him, and according to the Amended Statement of Claim, informed the plaintiff that he was closing the file.

23. [51]

    The plaintiff shortly thereafter contacted the Police Integrity Commission to see if the Police Commissioner, as the plaintiff asserts he was obliged to, had referred the matter of the complaint to the Police Integrity Commission. When that was not done, the plaintiff complained to the Police Integrity Commission about misconduct by the Police Commissioner.

24. [52]

    The pleading in the Amended Statement of Claim continues with a lengthy description by way of a chronology of events which the plaintiff alleges were linked, and which the plaintiff alleges demonstrates corrupt conduct on the part of the many public servants with whom he was corresponding and having dealings. The plaintiff alleges, and there is no dispute, that on 24 January 2012, under cover of a letter to the Commission, he lodged a further brief consisting of the Complaint, in two lever arch folders of approximately 900 pages, which I have called the 2012 Complaint.

25. [53]

    The plaintiff alleges, and there is no dispute, that on 11 November 2012, he received a letter from the Commissioner of the Commission, dated 16 October 2012, which declined to investigate the allegations which he made in the 2012 Complaint.

26. [54]

    It will be necessary to return to the terms of that response later, but the response leads to the plaintiff asserting that the Commissioner, and the Commission had refused to do his, and its, public duty. The substance of that allegation is contained in paragraph 385 of the Amended Statement of Claim in the following terms:

27. [55]

    Finally, attached to the Amended Statement of Claim are a series of documents, each of which demonstrates that the individuals and bodies to whom the plaintiff had made complaint had declined to investigate the complaint.

28. [56]

    As I have earlier noted, the form of the Amended Statement of Claim does not comply with the requirements of a proper pleading. Annexing evidence, as the plaintiff has done, is yet another example of the way in which the pleading simply ignores the UCPR and the authorities. But for the ultimate decision in this matter which addresses the substantial question of whether relief should be granted against the Commission, the Amended Statement if Claim should be struck out.

Correspondence between the Plaintiff and the Commission

1. [57]

   Since the conduct of the Commission is called into question by reason of this reply, and the orders which the plaintiff seeks, in large part, arise from the contents of this letter, it is appropriate to refer to it somewhat fully, although it is not necessary to set the whole of it out verbatim.

2. [58]

   The letter is set out with a reference on the first page which, according to the Amended Statement of Claim, is the same reference number given to the 99 Complaint lodged by the plaintiff on behalf of his late mother, namely EOO/0122. The first paragraph of the letter notes that the Commission wrote to the plaintiff “… on 18 December 2000 and 11 April 2001”. It is clear from this introduction, combined with the reference number, that the Commission, internally, treated the 2012 Complaint as being related to, if not a continuation of, the 99 Complaint.

3. [59]

   The letter then identifies seven particular allegations and provides a response to each of those allegations. Three of the discretely identified complaints are answered with similar phrases and reasons after they have been shortly summarised. These answers are to the effect that while the particular allegation may amount to corrupt conduct, the information before the Commission is insufficient to substantiate it or else the lack of specific information in support of the allegation means that it is not possible to properly investigate the allegation. These answers bespeak an attention to, and a consideration of, the 2012 Complaint by reference to the content of it, and the nature of any investigation which may be needed.

4. [60]

   In respect of other allegations, the complaint is dismissed on the basis that the allegations are hearsay, or that only limited lines of enquiry are open to the Commission because of inadequate information.

5. [61]

   In respect of two allegations, the Commission responded that its earlier answers, either in its letter of 18 December 2000 (it indicated that it did not propose to further pursue the matter), and its letter of 11 April 2001 (which informed the plaintiff that the allegation had been investigated and no action would be taken) were such as not to require further response.

6. [62]

   The letter goes on to conclude in the following terms:

7. [63]

   By letter dated 17 December 2012, the plaintiff responded to the letter of 16 October 2012. This reply letter pointed out that the response was inadequate and insufficient. In particular, the reply letter draws attention to the fact that the letter of the Commissioner did not deal with the most important single complaint which had been contained within the 2012 Complaint. The reply letter says:

8. [64]

   Later in the reply letter, the plaintiff refers to the 99 Complaint, and describes it as, together with his mother, a joint complaint to the Commission.

9. [65]

   Towards the end of his letter of 17 December 2012, the plaintiff says this:

10. [66]

    The reply letter concludes with a statement that the plaintiff accepts the Commissioner’s letter of October 2012 as:

11. [67]

    The plaintiff submits that such is the nature of the allegations made in the 2012 Complaint, and the inferences to be drawn from the events set out in the Amended Statement of Claim with respect to the wide range of individuals, or bodies declining to investigate the 2012 Complaint, and also the Commissioner’s conduct or the conduct of the Commission, that the Court ought infer that the conduct of the Commission in refusing to investigate the 2012 Complaint is conduct which does not comply with its obligations under the Act.

12. [68]

    The plaintiff submits that the nature of the allegations which are made in the 2012 Complaint, and the events which are described in the Amended Statement of Claim, are such that the public interest in the proper discharge by the Commission of its statutory function – to investigate and report on corrupt conduct – is of absolute importance.

13. [69]

    Based upon these conclusions, the plaintiff submits that the Commission has a duty or an obligation created by the Act, which compels it, in this case, to undertake an investigation in the manner claimed in the Amended Statement of Claim, which duty and obligations ought be enforced by this Court granting the relief sought.

14. [70]

    As the plaintiff succinctly puts it in his written submissions, speaking of these proceedings:

15. [71]

    The plaintiff’s submissions centred upon what he described as a five pronged pitchfork, namely:

16. [72]

    It is clear that a central feature of the plaintiff’s submissions is that the Commission has an enforceable obligation or duty, to investigate allegations of serious corruption, which the plaintiff contends are or are likely to be substantiated.

17. [73]

    Accordingly, it is appropriate in considering the plaintiff’s submissions, to commence with an analysis of the obligations of the Commission.

Statutory Interpretation

1. [74]

   In particular, here the Court is being asked in the context of the entire Act, to interpret specifically the power set out in both s 10 and s 20 of the Act. The expressions are relevantly identical. It is convenient to analyse s 20 of the Act, because the same result will follow respect to s 10 of the Act.

2. [75]

   Initially, one needs to concentrate on subsections (1) and (3) of s 20, which are those parts of s 20 dealing with whether the Commission may conduct an investigation.

3. [76]

   The commencement point in undertaking an exercise of statutory construction with respect to the subsections to which I have referred above, must,

4. [77]

   French CJ and Hayne J, in considering the principles applicable to statutory construction, said in Certain Lloyd’s Underwriters v Cross [2012] HCA 56:

5. [78]

   Kiefel J in Certain Lloyd’s Underwriters , said at [88]-[89] this:

6. [79]

   I will keep these principles in mind in considering the provision in question.

7. [80]

   The essence of the two subsections in s 20 of the Act is the conferral on the Commission itself of a discretion. The statutes uses the word “may” with respect to the Commission conducting an investigation.

8. [81]

   Clearly, these subsections provide the Commission with a power to conduct an investigation. The question is whether, as the plaintiff contends, that power is coupled with a duty on the Commission to exercise the power when called upon so to do by the lodging of a complaint.

9. [82]

   In Julius v Bishop of Oxford (1880) 5 App Cas. 214 at 222, the Lord Chancellor, Earl Cairns said:

10. [83]

    In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, Callinan J said at [310], with respect to the decision of Earl Cairns LC in Bishop of Oxford, this:

11. [84]

    To consider the plaintiff’s contention, it is appropriate to commence with a consideration of the nature and role of the Commission as the repository of the power and, given its status as a statutory body, what objects it is required to fulfil. Such an examination will depend upon the statute interpreted in accordance with the principles and authorities articulated above.

12. [85]

    According to s 2A of the Act, the Commission is constituted as an independent body to investigate, expose and prevent corruption involving or affecting public authorities and public officials. It also has an educational purpose. The explicit mischief to which the Act is directed is corruption involving or affecting public authorities and public officials: Cunneen at [67] per Basten JA.

13. [86]

    The Commission is given some statutory direction as to its priorities by s 12 – namely, it is to regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns. It may investigate allegations of corrupt conduct either of its own motion, or else on the basis of a complaint made to it, a report or reference made to it. This is the widest possible basis for the receipt of material which may trigger an investigation. The Commission may also refer a matter for investigation to any person or body which the Commission regards as appropriate: s 53 of the Act.

14. [87]

    The Act provides for a duty upon the Commission to investigate in only one identified circumstance. By s 73 of the Act, a matter of the kind described in s 13 of the Act, may be referred by resolution of both Houses of Parliament. In that circumstance, s 73 provides:

15. [88]

    The terms in which this provision is expressed, i.e. a mandatory duty as opposed to a permissive power, suggest the use of language within the Act which conveys the differential meaning of a permissive power and a mandatory obligation. To have regard to s 73, accords with principle to interpret the Act coherently, by reading it as a whole.

16. [89]

    As well, s 20A of the Act gives the power to the Commission to undertake a preliminary investigation. One use of that preliminary investigation is to decide whether to make conduct the subject of a “… more complete investigation …”. The existence of the whole concept of a preliminary investigation tells against interpreting this power in s 20 of the Act in terms of any obligation to investigate every complaint received.

17. [90]

    The commencement point for consideration of the issue is the principal object of the Act. As I have earlier indicated, the Act creates the Commission as an independent and accountable body, with powers to investigate, expose and prevent corruption, and to educate public authorities, in order to promote the integrity and accountability of public administration. It also confers on the Commission special powers to inquire into allegations of corruption.

18. [91]

    The Act contemplates that any person may make a complaint to the Commission about a matter “… that concerns, or may concern, corrupt conduct”: see s 10(1) of the Act. The Commission may investigate a complaint, or decide that a complaint need not be investigated: see s 10(2) of the Act. It is empowered to discontinue an investigation of a complaint.

19. [92]

    The terms of s 11 of the Act are framed with an eye to public duty. It requires nominated bodies or persons to report matters to the Commission. It expresses that obligation by use of the words “… is under a duty to report”. Again, the use of language differentiates between a power and a duty.

20. [93]

    It is given a broad range of principal functions in s 13 and other functions in s 14. It is to attend to each of these as appropriate.

21. [94]

    The words in s 20(1) of the Act are clearly empowering and not mandatory. It is of significance that the words used in s 20(3) of the Act entitle the Commission to “have regard to such matters as it thinks fit”. Some matters are then listed as being matters to which regard may be had. But even those matters are dependent upon the opinion which the Commission forms.

22. [95]

    In short, the Commission is given a very broad discretion as to what it should investigate, providing of course that any investigation deals with appropriate conduct, i.e. corrupt conduct as that phrase is defined.

23. [96]

    I am unable to accept that the terms of this legislation either s 10 of s 20 of the Act, impose a duty or obligation on the Commission to investigate any complaint made to it. The Act did not oblige it to investigate the 2012 Complaint.

Unreasonable Decision

1. [97]

   However, even if there was no such obligation, the plaintiff seems to suggest that an alternative basis for the relief which he claims, namely that the decision to decline to investigate, was an unreasonable one. The question which is then necessary to be examined, is whether the failure of the Commission to investigate the 2012 Complaint can be regarded as unreasonable, in the legally relevant sense.

2. [98]

   The argument advanced by the plaintiff was that it was unreasonable. The plaintiff submitted that conduct was so serious that it would be unreasonable in a legal sense if the Commission failed to investigate it. In fact, the pleading asserts, in substance, that so unreasonable was the failure to investigate the 2012 Complaint, that the Court ought conclude that such conduct was itself corrupt. The plaintiff went so far as to submit that the failure to investigate, demonstrated complicity in the original alleged corrupt conduct.

3. [99]

   In considering the exercise of a discretionary power, it is appropriate to keep in mind what Gageler J said in Minister for Immigration and Citizenship v Li [2013] HCA 18 at 90-91. His Honour said:

4. [100]

   In being asked to exercise the ground of unreasonableness, a Court must be vigilant to guard against undertaking a merits review. If a decision is so unreasonable that no reasonable body could have made it, then what is required is “… something overwhelming …”: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [44].

5. [101]

   It is not enough for a Court in considering this ground to come to a decision different from the decision made. There is a close analogy between this ground of manifest unreasonableness and appellate review of judicial discretion of the kind articulated in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505‑506 per Dixon, Evatt and McTiernan JJ.

6. [102]

   As Gageler J went on to say in Li at [106] and following, omitting footnotes:

7. [103]

   The High Court of Australia, in a unanimous judgment in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 sounded a note of caution. At [57] the Court said:

8. [104]

   One way in which the reasonableness of the conduct of the Commission in declining to investigate the 2012 Complaint can be understood, is to look at the letter which sets out the basis upon which the Commission refused to investigate further.

9. [105]

   I have earlier referred to, and summarised parts of, that letter. Shortly put, the letter indicated that the 2012 Complaint and the 99 Complaint were similar, that it had previously, in a considered way, declined to investigate the 99 Complaint and that there was nothing of substance in the 2012 Complaint, which was sufficient to cause it to change its mind.

10. [106]

    Such an analysis is not on its face illogical or irrational. Nor is it on its face unreasonable in the legal sense of that word.

11. [107]

    But there are other factors to which the Court would be entitled to have regard in considering whether declining to investigate was unreasonable. One is the age of the foundational events which were the subject of the 2012 Complaint. The substance of the 2012 Complaint concerned a former politician who had not been in office for over 20 years, a judge who had retired from the Supreme Court and had died before the 2012 Complaint was lodged, and the outcome of litigation which had concluded many years before – ultimately by a settlement, being an agreement between the parties which none of the parties had sought to have set aside.

12. [108]

    These facts alone, and without more, would be sufficient to rationally justify the Commission declining to undertake an investigation.

13. [109]

    As well, the Court can take judicial notice of the fact that the Commission, like all agencies of government whether independent or not, has a limited budget. Publically funded institutions such as the Commission can only operate within that limited budget. One of the factors which a Commissioner or the Commission itself must take into account in considering whether to investigate a complaint or not, is the impact of the cost of that investigation upon its budget. There is no evidence before the Court as to whether a budgetary constraint was relevant to the decision of the Commission in this case. However, the Court can have regard to the fact that such a reason may be an entirely rational one. The plaintiff certainly has not proved that the Commission, at the relevant time, had adequate funds available to enable it to undertake an investigation of the kind that he submits ought be required.

14. [110]

    In all of the circumstances, I am not satisfied that the plaintiff has demonstrated that the conduct of the Commission in declining to investigate the complaint is in any way unreasonable, let alone unreasonable to the extent required by the law before the decision is liable to be overturned on judicial review.

Inappropriate Relief

1. [111]

   The essential relief sought was an order in the nature of mandamus requiring the Commission to undertake an investigation of the complaint.

2. [112]

   In order for the Court to grant relief of the kind sought, namely, an order in the nature of mandamus, the Court has to first be persuaded of the existence of a legal right or obligation which historically has been the foundation of every writ of mandamus: see Ex Parte Napier (1852) 18 QB 692 at 695.

3. [113]

   As Rich, Dixon and McTiernan JJ said in R v War Pensions Entitlement Appeal Tribunal [1933] HCA 30; (1933) 50 CLR 228:

4. [114]

   As I have explained earlier, the Commission is not under a mandatory obligation to investigate any complaint which it receives. Thus, there is no public duty or obligation which is unperformed to which an order in the nature of mandamus could be directed.

5. [115]

   As well, the Commission has considered whether or not to undertake an investigation, and has declined so to do. I have not been persuaded that such decision is unreasonable in the relevant legal sense. Any order in the nature of mandamus could only reflect the expression of the Court’s opinion as to whether it agrees with the decision made, or whether it thinks that it was wrong. That is an inadequate basis for the granting of the orders sought.

6. [116]

   But there is another good reason why a Court would not, in its discretion, grant the relief sought.

7. [117]

   In an analogous, but not entirely identical area of discourse, courts have been reluctant to order police officers to undertake investigations.

8. [118]

   Lord Denning MR in Reg v Commissioner of Police of the Metropolis; Ex Parte Blackburn [1968] 2 QB 118 at 136 dealt with the notion of any enforceable duty falling upon a police officer. He said:

9. [119]

   This field is not identical with that covered by this suit, but, as I have said, is analogous. I do not see why a Court would order the Commission, an investigative body, to investigate a complaint where the Commission in its discretion has decided not to do so, unless a clear duty in the law existed requiring it so to do. It is for the Commission to assess investigation priorities as a matter of its policy, and as a matter of deployment of its human and financial resources. It is inappropriate for a Court to direct, in the absence of knowledge of all complaints which the Commission has, that a particular investigation be undertaken.

Should an Order be Made?

1. [120]

   I have concluded earlier that there is no obligation falling upon the Commission to investigate a complaint. The Commission has not filed any evidence in these proceedings, other than the letter setting out the reasons for declining to investigate the complaint, which deals with internal policy, budgetary constraints, scarcity of resources or the like. The Commission defends the proceedings on the basis that there is no enforceable duty of the kind alleged, and, if there was, it is not a matter which the Court would regard as appropriate to be enforced.

2. [121]

   As I have earlier said, I am persuaded that the decision of the Commission was a rational one. It was lawful. It was not under an obligation to do what Mr Waterhouse submits it should do.

3. [122]

   Having regard to the age of the matter, the nature of the business of the Commission, the caution which a Court should engage in before ordering any investigative body to investigate a complaint, I cannot be satisfied that this is a matter in which I would be persuaded to exercise a discretion to make the orders sought.

4. [123]

   For the same reasons, the declarations sought are also inappropriate.

5. [124]

   It follows that the proceedings should be dismissed.

Orders

1. [125]

   I make the following orders:

   1. (1)

      Proceedings brought by Amended Statement of Claim dated 27 June 2013 are dismissed.

   2. (2)

      Plaintiff to pay the defendant’s costs.