Edward Moses Obeid Snr -v- David Andrew Ipp

1. [1]

   HIS HONOUR: The Independent Commission Against Corruption (ICAC or the Commission) was constituted under the Independent Commission Against Corruption Act 1988 (NSW) (the Act). It was established to investigate, expose and prevent corruption involving or affecting public authorities and officials. It has special powers to enquire into allegations of corruption.

2. [2]

   References below to sections are, unless the context otherwise requires, references to the Act.

3. [3]

   Operation Jasper was the name given by ICAC to an investigation into the circumstances surrounding a decision made in 2008 by the then Minister for Primary Industries and Minister for Mineral Resources, the Hon Ian Macdonald MLC (Macdonald), to grant a coal exploration licence, referred to as the Mount Penny tenement, located in the Bylong Valley, including whether that decision was influenced by the then Hon Edward Obeid MLC (Edward Obeid Snr), or members of his family.

4. [4]

   In July 2013, the first defendant, the Hon David Ipp AO QC (the Commissioner) presented the Commission’s Report (the Report) on the Operation Jasper investigation to the Presiding Officer of each House of Parliament.

5. [5]

   The Commission found that each of Macdonald, Edward Obeid Snr and Moses Obeid engaged in corrupt conduct, essential elements of which were that they:

   1. (1)

      had entered into an agreement whereby Macdonald acted contrary to his public duty as a minister of the Crown by arranging for the creation of the Mount Penny tenement for the purpose of benefiting Edward Obeid Snr, Moses Obeid, and other members of the Obeid family; and

   2. (2)

      had entered into an agreement whereby Macdonald acted contrary to his public duty as a minister of the Crown to provide Moses Obeid or other members of the Obeid family with confidential information for the purpose of benefiting Edward Obeid Snr, Moses Obeid, and other members of the Obeid family.

6. [6]

   The Commission made adverse credibility findings about Edward Obeid Snr, Moses Obeid and Paul Obeid. The Commission found that the evidence of Edward Obeid Snr on some important issues was deliberately untrue or false. It found that Moses Obeid was an unreliable witness, willing to lie or mislead whenever it suited his purpose. Paul Obeid was subject to similar criticisms to those made of Moses Obeid, and aspects of his evidence were found not to be believable and designed to mislead the Commission. No finding of corruption was made with respect to Paul Obeid.

7. [7]

   As part of Operation Jasper, ICAC held compulsory examinations (which are conducted in private (s 30(5)) and a public inquiry (s 31(8)). Each of the plaintiffs was examined privately and publically. Moses Obeid, Paul Obeid and Edward Obeid Jnr are sons of Edward Obeid Snr.

8. [8]

   ICAC obtained and executed a search warrant at premises occupied by an Obeid family company, Locaway Pty Ltd, in a business centre (commonly referred to as Birkenhead Point) at Drummoyne, Sydney.

9. [9]

   The plaintiffs allege that they were denied procedural fairness.

10. [10]

    They also sue the Commission, the Commissioner, Counsel Assisting the Commission, and two ICAC officers who executed the search warrant for damages for the tort of misfeasance in public office. Liability is being tried first.

11. [11]

    No finding was made against Edward Obeid Jnr in the Report. It is not clear why he joined as a plaintiff. He has no cognisable interest in the proceedings and no attempt was made on his behalf to identify one. His claim must be dismissed.

12. [12]

    An A3 size orange-coloured envelope (the envelope) containing a number of documents and a manila folder (the manila folder) was seized under the search warrant. It was on or in a cabinet against the wall behind Paul Obeid’s desk.

13. [13]

    A question in the investigation was whether two confidential, government maps dated 9 May 2008 and 30 May 2008 respectively (the maps), which had been created at the instance of Macdonald and which related to the proposed Mount Penny tenement, had been passed on to an Obeid family member. If they were in the manila folder at the time it was seized, this would be evidence of that having happened. In Chapter 12 of the Report which is entitled “Confidential documents found in the Obeid offices”, the Commission made findings that at the time the search warrant was executed, the maps were in the manila folder together with two other documents related to Obeid activities at Cherrydale (an Obeid property, the majority of which was covered by the Mount Penny tenement).

14. [14]

    The agreements found by the Commission to have been made between Macdonald, Edward Obeid Snr and Moses Obeid were inferred from a number of other findings, including that the maps had been created in the Department of Primary Industries (DPI) in response to a request from Macdonald, that they were not publically available – yet were found in Paul Obeid’s office, and that none of the plaintiffs could explain how this came about.

15. [15]

    Katherine Kyriakopoulos (Kyriakopoulos), an operational analyst with ICAC and one of the searchers under the warrant, found the envelope in an office occupied by Paul Obeid. The event was videotaped by ICAC operative Gavin Whalebone. The envelope had, it seems, come from solicitors Colin Biggers & Paisley (who had done legal work for the Obeid interests). Stuck to the envelope was a white sticker reading “To be collected Gerard Obeid”, another son of Edward Obeid Snr. The envelope contained a number of documents and the manila folder. A hand written record of the lodgement of these documents was made in ICAC’s Property Movements Register. The envelope was lodged with Manuel Azaola, an ICAC Property and Records Officer, and was allocated ICAC Property Reference Number E11/0363/36/48. ICAC has a computerised record system known as MOCCA. The envelope was registered on MOCCA on 24 November 2011 with that reference number.

16. [16]

    Not earlier than 10 October 2012, Kyriakopoulos signed a statement of evidence (incorrectly dated 27 September 2012) about her search in Paul Obeid’s office. She stated that she recalled recovering the envelope and folder containing various documents. She recalled looking into the manila folder and quickly glancing at a document relating to a Chinese company and an old looking newspaper clipping. She said nothing of the maps. In an email exchange not disclosed to the plaintiffs, on 26 and 27 December 2012 between her and Timothy Fox (Fox), ICAC’s Chief Investigator, Fox asked her to include in her statement seeing two maps within the manila folder, if she recalled this. She responded by saying that she did recall seeing two old looking maps, but that this was all, and that she recalled recovering them from the cabinet near the window.

17. [17]

    At a compulsory examination (21 August 2012) and in the public inquiry (6 February 2013), Paul Obeid was examined about the envelope and its seizure by Counsel Assisting the Commission, Geoffrey Watson SC (Watson), the second defendant. On 6 February 2013, Paul Obeid gave evidence that at the time it was seized, the envelope was sealed and that he had never seen the documents found in it. Watson put a number of questions to Paul Obeid in connection with the seizure. The plaintiffs say that Paul Obeid was asked by Watson to assume, contrary to the fact, that that video evidence showed the maps, and that they were in the manila folder.

18. [18]

    On 20 February 2012, Fox asked Lisa Stockley (Stockley), an ICAC investigator, to assist in the review of material seized under the warrant. On 14 November 2012, Stockley signed a statement of evidence in which she stated that:

19. [19]

    ICAC internal records indicate that Stockley retrieved the envelope on 22 February 2012, but actually found the maps six days later on 28 February 2012. The evidence in the inquiry did not directly reveal the physical whereabouts of the maps for those six days. This period became known in these proceedings as “the 6 day gap”.

20. [20]

    The practice adopted by ICAC for making available documents tendered during the public inquiry to interested parties was to upload them onto a dedicated website to which those parties had access. Stockley’s statement should have been uploaded by ICAC on to the website, to which the plaintiffs all had access, but because of ICAC’s error, it was not uploaded. A purported explanation for the error was given by an ICAC officer, but it is unintelligible.

21. [21]

    The video recording of the execution of the search warrant, and a number of other statements concerning the execution of the search warrant, including the Kyriakopoulos statement, were successfully uploaded. A physical version of these statements, as well as Stockley’s statement, was marked as exhibit J-181 and apparently tendered at the public hearing on 7 March 2013.

22. [22]

    The plaintiffs, however, did not have knowledge of the Stockley statement before publication of the Report. They learnt of it when it was provided to their solicitors by the Office of the Director of Public Prosecutions (DPP) on 26 November 2015, in the context of different proceedings.

Gardner Brook

1. [23]

   One John Gardner Brook (Gardner Brook), a former investment banker who had been introduced to members of the Obeid family as a person who might assist them in the entrepreneurial side of coal mining, was examined at a compulsory examination (12 March 2012) and in public hearing (27 November 2012). He gave evidence that he was shown one of the maps by Moses Obeid and that in July 2008, Paul Obeid was able to mark on a map for him an area indicating the size of the proposed Mount Penny tenement.

2. [24]

   Gardner Brook gave the following evidence in compulsory examination (12 March 2012):

3. [25]

   The video recording does not show that the manila folder was taken off Paul Obeid’s desk whether by “scooping” or some other manner not involving scooping.

4. [26]

   Gardner Brook gave the following evidence at the public inquiry (27 November 2012) about the manila folder (referred to in the ICAC transcript variously as the “manilla” or “vanilla” folder):

5. [27]

   On 13 March 2012 (in the period between his compulsory examination and his examination in public), Gardner Brook was interviewed by ICAC officers, including Fox. During the interview, Fox said that they wanted to clarify “a couple of points” arising from his compulsory examination the previous day. There is in evidence a file note prepared by Fox, which records that Gardner Brook called Fox on 18 May 2012 after he had been contacted by a journalist. Gardner Brook expressed concern about the impact of his involvement with ICAC, and asked if he was in ICAC’s “gun sights”. The file note concludes with the following:

6. [28]

   Robert Mangioni (Mangioni) is an Australian legal practitioner. In 2014 he was acting for Dr Andrew Cornwell (Cornwell), the then sitting member in the NSW legislative assembly for the seat of Charlestown, in connection with an ICAC inquiry code named Operation Spicer.

7. [29]

   Mangioni was called by the plaintiffs as a witness in these proceedings. He was not cross-examined. On 23 July 2014, Mangioni met with Watson and others. There was a discussion about the terms upon which Cornwell would be prepared to cooperate with the Commission. He says that Watson said words, including words to the following effect:

8. [30]

   Later that day, Watson said words to the following effect to Mangioni and Cornwell:

9. [31]

   Cornwell then signed a statement of evidence which Mangioni handed to Watson.

10. [32]

    During the Operation Jasper inquiry, Edward Obeid Snr was represented by Stuart Littlemore QC, Moses Obeid was represented by Lionel Robberds QC, instructed by Jeff Tunks of Marsdens Law Group, and Paul Obeid and Edward Obeid Jnr were represented by Graham Turnbull SC, instructed by Michael Bowe of Marsdens Law Group.

Graham Turnbull SC

1. [33]

   The plaintiffs called Turnbull SC. He was cross-examined by Senior Counsel for the Commission. His evidence was carefully and precisely given. He is a truthful witness.

2. [34]

   He gave evidence that his general strategy, which he considered would most likely protect the long-term interests of his clients, involved avoiding the leading of any evidence, cross-examination of any witnesses, or seeking to advance an affirmative case as to what in fact occurred in the events that were the subject of investigation. They would keep “their heads down”, at least until final written submissions, being the most appropriate place to make submissions as to the sufficiency of the material to support corrupt or other adverse findings. Even then, he says his approach to written submissions was not to be exhaustive, and generally, not to address allegations not substantiated by evidence before the Commission.

3. [35]

   Turnbull SC had a number of reasons for this approach. One was that he considered that the directions which were issued by the Commissioner with respect to cross-examination of witnesses effectively precluded cross-examination by an interested party unless the interested party articulated a positive case. Another was that he considered it distinctly possible that adverse findings would be made against his clients, even if evidence of the sort that would be admissible in a court did not establish the facts the subject of those findings on the balance of probabilities.

4. [36]

   He says that he formed the clear impression early in the public inquiry that the Commissioner and Watson were taking a sceptical stance in relation to members of the Obeid family, that the public inquiry was being conducted in a combative manner, and that it was possible that adverse views had already been formed prior to the public inquiry’s commencement.

5. [37]

   Turnbull SC gave unchallenged evidence that the uploading of the material was of significant interest to him at the time, and that following Paul Obeid’s evidence on 6 February 2013, he believed the ability of ICAC to prove that the maps had been seized from the Locaway premises may be a significant issue in the public inquiry. He recalls having thought that the video most clearly did not show a seizure of the maps and having come to the conclusion that Watson’s cross-examination about the maps could not have been based on what was visible on the video alone.

6. [38]

   He says that he formed the view that the Kyriakopoulos statement did not support a finding that the maps had been seized from the Locaway premises, because Kyriakopoulos did not refer to the maps having been in the manila folder. He says that having formed the view that there was not sufficient evidence to support a finding that the maps were seized from the premises, he had no reason to cross-examine any of the makers of the uploaded statements.

7. [39]

   Turnbull SC gave evidence about what he may have done had he been informed at the time of the public inquiry that in the course of preparing her witness statement, Kyriakopoulos had been asked whether she could recall recovering the maps, and had said that she could not recall doing so. He considers it to be very unlikely that it would have caused him to seek instructions to make an application to cross-examine Kyriakopoulos because this would have been inconsistent with his general approach to the public inquiry, and that if the fact that Kyriakopoulos could not recall recovering the maps was in material that was before the Commission, this would have been a further reason why that material did not support a finding that the maps had been seized. In such circumstances, he says he would not have had a reason to cross-examine her.

8. [40]

   He says, however, that he would have been duty-bound to consider, and would certainly have considered, highlighting the fact that Kyriakopoulos could not recall recovering the maps in written submissions. But, he also says that it is likely that he would have formed the view that apparent evidential defects should remain untouched in light of the potential for a prosecution referral and subsequent criminal proceedings. His evidence was that there was more than a possibility, but less than a likelihood that he would have included the point in written submissions.

9. [41]

   Turnbull SC gave evidence that had he been aware of the Stockley statement at the time of the public inquiry, it is possible he would have made an application to cross-examine her, but that given his approach to the public inquiry, he considers it more likely that he would not have done so. However, he would have discussed it with, and sought instructions about the possibility, particularly from Paul Obeid. He was unable to say with any level of certainty that he would not have made the application. In favour of making the application was that he would have been confident that what the statements (including Stockley’s) disclosed was as good as ICAC could do to prove that the maps had been seized from the premises, meaning it was therefore unlikely that cross-examination would have elicited evidence less favourable to his clients. Also, the statements (including Stockley’s) suggested to him that the investigators’ systems for proving what was seized and guaranteeing secure and accountable storage of exhibits were inadequate.

10. [42]

    He says that had he wished to and been allowed to examine Stockley, generally relevant lines of cross-examination may have included the circumstances in which she said that she found the maps in the manila folder, inside the envelope. This would have included asking her about the manner in which the manila folder was secured in the period between the execution of the search warrant at the premises and when Stockley stated that she found the maps in the manila folder. He also points out that she apparently found the maps nine months after the search warrant, and made her statement a year after it.

11. [43]

    He says that he would have been duty bound to address, and certainly would have considered addressing the Stockley statement in written submissions. However, given his approach to the public inquiry, he cannot be certain that he would have done so. His evidence was that there was more than a possibility, but less than a likelihood that he would have included the point in written submissions.

12. [44]

    As to the 6 day gap, Turnbull SC’s evidence was that had he known of it, he may have cross-examined Stockley, although he considers it likely that he would have advised Paul Obeid that she should not be cross-examined, and that Paul Obeid would have taken the advice. Relevant lines of cross-examination may have included the circumstances in which she said she found the maps in the manila folder inside the envelope, and the manner in which the manila folder was secured between when the search warrant was executed and when she said she found the maps. He says he would have certainly considered addressing these matters in written submissions, and considers it probable that he would have included submissions as to why the matters undermined evidence in support of a finding that the maps had been seized.

13. [45]

    Turnbull SC settled written submissions to the Commissioner on behalf of Paul Obeid dated 15 April 2013, in which the following was put as to why the allegation that Paul Obeid was able to mark the map for Gardner Brook should be rejected:

14. [46]

    The strategy adopted by Robberds QC and Tunks on behalf of Moses Obeid was no different in substance. In relation to Gardner Brook, on 28 November 2012, Robberds QC advised Moses Obeid that it was not in his interest to raise, by way of cross-examination during the inquiry, further matters that might be the subject of other avenues by the Commission. In an email the day before, Tunks expressed the view that they should, at that stage, stick to the “Lionel plan”, obviously a reference to the strategy of passivity.

15. [47]

    On 6 March 2013, after the search warrant video recording and statements concerning the execution of the warrant (including the Kyriakopoulos statement) had been uploaded and obtained, Tunks advised Moses Obeid by email, relevantly, as follows:

16. [48]

    Littlemore QC, on behalf of Edward Obeid Snr, sought to put to Gardner Brook in cross-examination that he had only met Edward Obeid Snr once, at the home of Moses Obeid, at a time when Gardner Brook was showing signs of substance abuse. The question was objected to and disallowed. Littlemore QC did not raise the seizure of the manila folder or the maps in cross-examination or deal with it in final written submissions.

17. [49]

    During the execution of the search warrant, two other documents were discovered by ICAC operatives in a safe.

18. [50]

    One was a written advice (the Advice) dated 15 October 2009 from the Solicitor General to the Crown Solicitor on behalf of the Minister for Infrastructure. It dealt with a question of compliance with government guidelines for privately financed projects with respect to a proposal by Australian Water Holdings Pty Ltd concerning the Rouse Hill development area and the North West Growth Centre.

19. [51]

    The other was a document dated 4 November 2010 entitled “Heads of Agreement – Australian Water” (the Heads of Agreement). It is an agreement between parties described as the Obeid Family Trust and Nicholas Anthony Di Girolamo respectively, and provides for the sale by Di Girolamo to the Obeid Family Trust of shares in Australian Water Pty Ltd and Australian Water Holdings Pty Ltd for $3,000,000. From its coversheet, it was prepared by a law firm called Lands Legal.

20. [52]

    The Heads of Agreement includes the following clauses:

21. [53]

    These documents were not seized, but videoed up close by an ICAC operative, Darren Curd (Curd), so as to record their contents. The third defendant, Grant Lockley (Lockley), an ICAC senior financial investigator, and the fourth defendant, Paul Grainger (Grainger), an ICAC senior investigator, were present.

22. [54]

    On 19 December 2012, Meaghan Fleeton, a Principal Lawyer with ICAC, wrote the Commissioner a memorandum in connection with Operation Credo, another ICAC investigation, which included investigations into an allegation that Edward Obeid Snr and Moses Obeid held an interest in Australian Water Holdings Pty Ltd and that, during contract negotiations with Sydney Water, they exercised influence in the outcome for financial benefit. The memorandum recommended the Commissioner sign a Summons to produce documents to a solicitor at Lands Legal.

23. [55]

    The Heads of Agreement as videoed was, I find, used to prepare the memorandum and the Summons to Lands Legal in order to produce the Heads of Agreement for the purposes of Operation Credo.

24. [56]

    On 1 February 2013, during the public inquiry, Watson showed Moses Obeid an unredacted copy of the Heads of Agreement and made a redacted copy available to the Commissioner. Watson informed the inquiry that a portion of it had been blacked out for security purposes. After examining Moses Obeid about the transaction, he sought a suppression order in respect of the unredacted copy, which the Commissioner granted. The suppression order pertained to cl 3 of the Heads of Agreement.

25. [57]

    The version which became available to the public was redacted accordingly. However, Watson cross-examined Moses Obeid on the unredacted version.

26. [58]

    On 2 February 2013, the following article appeared in the Sydney Morning Herald newspaper:

27. [59]

    Mr C R C Newlinds SC together with Messrs D R Sulan and A J O’Brien appeared for the plaintiffs.

28. [60]

    Mr B Walker SC together with Messrs S Free and P Herzfeld appeared for the Commissioner.

29. [61]

    Mr D A McLure SC together with Mr P G Sharp appeared for Watson.

30. [62]

    Mr P Braham SC together with Mr R Scruby appeared for Grainger.

31. [63]

    Ms E Cheeseman SC together with Mr J Hutton and Ms S Patterson appeared for Lockley.

32. [64]

    Mr J K Kirk SC together with Mesdames A M Mitchelmore and C G Winnett appeared for the Commission.

33. [65]

    The hearing occupied 10 days. Some 10,000 pages of written material were tendered. The Court received extensive written submissions. Positions, especially that of the plaintiffs (which was significantly narrowed) were refined in final addresses. I have had regard to all arguments but have not restated them. It was made clear that the outer extent of the plaintiffs’ claim is articulated in their closing written submissions irrespective of what additionally may have been pleaded in the statement of claim.

34. [66]

    I will deal first with the claim of procedural unfairness and thereafter with the misfeasance in public office claim. First, however, it is necessary to say more about the Act and to set out some of its provisions.

35. [67]

    The Commission is constituted by s 4 which provides:

36. [68]

    Section 5 provides:

37. [69]

    One of the principal functions of ICAC is to investigate any allegation or complaint, or any circumstances which in the Commission’s opinion imply that either corrupt conduct, conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or conduct connected with corrupt conduct may have occurred, may be occurring, or may be about to occur (s 13(1)(a)). Another is to make findings and form opinions on the basis of the results of its investigations in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct (s 13(3)(a)).

38. [70]

    The Commission is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate (s 17(1)). The Commission is to exercise its functions with as little formality and technicality as is possible, which includes accepting written submissions as far as is possible. Compulsory examinations and public inquiries are to be conducted with as little emphasis on an adversarial approach as is possible (s 17(2)).

39. [71]

    In aid of its functions, the Commission is given power to conduct preliminary investigations (s 20A), compulsory examinations in private (s 30) and public inquiries (s 31). It has power to obtain information and documents (ss 21 and 22). Sections 40–48 make provision for the issue and execution of search warrants.

40. [72]

    Section 31(4) provides:

41. [73]

    Section 41 provides:

42. [74]

    Section 47(1) provides:

43. [75]

    Section 104 empowers the Commission to appoint members of staff to assist it in exercising its functions (staff members). Those persons are taken to be employed by the Government of New South Wales in the service of the Crown (s 104(2)), except that ICAC is taken to be their employer for the purposes of court or tribunal proceedings relating to them (s 104(9)).

44. [76]

    Section 106 provides:

45. [77]

    Section 109 provides:

46. [78]

    Section 112 provides:

47. [79]

    On 15 October 2012, the Commission published directions for the conduct of the public inquiry. It published supplementary directions on 12 November 2012. Those directions provided relevantly that:

    1. (1)

       subject to the control of the Commissioner, Counsel Assisting would determine which witnesses were called and the order of those witnesses. The Commission would decide whether to receive evidence orally or by statement;

    2. (2)

       in determining whether a person had a sufficient interest to cross-examine, the Commission could call upon the cross-examiner to identify the purpose of the cross-examination, set out the issues to be canvassed and state the details of any contrary affirmative case to be made;

    3. (3)

       if the Commission was to be invited to disbelieve a witness, the material grounds upon which it was said that the evidence should be disbelieved was to be put to the witness, so that the witness may have an opportunity to offer an explanation. The Commission indicated that this did not mean that mere inconsistencies or unimportant differences needed to be raised, nor was a party required to put a matter to a witness when another party had already done so, or where the party had otherwise put the Commission on notice that the witness’ evidence was under challenge on particular grounds; and

    4. (4)

       the Commission expected that where it was contended that deliberately false evidence had been given, or that there had been a mistake on the part of the witness on a significant issue, the grounds of such contention would be put.

48. [80]

    During the public inquiry, the Commissioner required counsel to identify an affirmative case to which proposed cross-examination related – such that examination purely on credibility issues would not be permitted.

49. [81]

    Parties authorised to appear were provided with “confidential electronic access to certain documents likely to be tendered as exhibits in the public inquiry”, for purposes including enabling them to “identify whether any application should be made for a suppression order in relation to any document”.

50. [82]

    Affected persons were permitted to make written submissions after the conclusion of the evidence. The written submissions were placed on a restricted website, and Counsel Assisting and persons adversely mentioned in the submissions in response were given an opportunity to reply.

The legal principles

1. [83]

   At common law, procedural fairness is implied as a condition of the exercise of a statutory power through the application of the principle of statutory interpretation that a statute conferring a power to affect an interest of an individual is presumed to confer that power on condition that it is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 at [75] (“SZSSJ”).

2. [84]

   The content of an obligation to afford procedural fairness depends on the requirements of each case: Glynn v Independent Commission Against Corruption (1990) 20 ALD 214 (“Glynn”).

3. [85]

   A finding of corrupt conduct by the Commission can (self-evidently) affect the interests of persons the subject of it by having a significant, even devastating, adverse effect on their reputation. The Commission must therefore afford procedural fairness to persons who may be adversely affected by its findings. The plaintiffs are such persons.

4. [86]

   Here, the obligation flows from the exercise by the Commission of powers under the Act. The scope of the obligation must therefore accommodate the provisions of the Act which regulate how the Commission is to go about its task: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 93 (“Veal”).

5. [87]

   The Commission’s function in a public inquiry is investigative. It bears no relation to a civil or criminal trial before a court with jurisdiction to resolve factual and legal issues in a dispute between contending parties: Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [690].

6. [88]

   There is no right to cross-examine at a public inquiry. This may only occur with leave, and the area of questioning is restricted to any matter that the Commission considers relevant (s 34). The obligation does not extend to giving all of the procedural and evidentiary protections of adversarial proceedings. There is no right for affected persons to call further evidence and there is no obligation on the Commission, akin to the prosecutorial duty, to call all material witnesses.

7. [89]

   To satisfy the condition of procedural fairness, ICAC was obliged to adopt a procedure which conformed to that procedure which a reasonable and fair repository of the power to be exercised would adopt in the circumstances: Kioa v West (1985) 159 CLR 550 at 627; WZARH v Minister for Immigration and Border Protection (2015) 90 ALJR 25 at [53] (“WZARH”).

8. [90]

   Procedural fairness is concerned with procedures, rather than with outcomes. A breach of the implied condition which governs the exercise of statutory powers of consideration is material, so as to justify the grant of declaratory relief by a court of competent jurisdiction, if it operates to deprive the affected person of the possibility of a successful outcome. The concern of procedural fairness is to avoid practical injustice – there is no denial of procedural fairness where no practical injustice is shown: WZARH at [55]–[57] (Gageler and Gordon JJ). What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1.

9. [91]

   In WZARH at [59]–[60], Gageler and Gordon JJ said:

10. [92]

    It is not in contest that the obligation on the Commission included one to give the plaintiffs an opportunity to deal with adverse information that was credible, relevant and significant to its potential findings: Kioa v West (1985) 159 CLR 550 at 628–629.

11. [93]

    In Veal at [17]–[18] the High Court said:

12. [94]

    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32], the High Court approved the following statement of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590–591:

13. [95]

    Recently, in SZSSJ at [83], the High Court said:

14. [96]

    In Glynn, Wood J said at 218–219 in a well-known passage:

15. [97]

    Where the procedure is shown itself to have failed to afford a fair opportunity to be heard, the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome: Stead v SGIO (1986) 161 CLR 141 at 145 (“Stead”); WZARH at [60]. Not every failure to afford procedural fairness (or natural justice) will be a jurisdictional error vitiating an administrative decision.

16. [98]

    If it can be shown that the breach or denial could have no bearing on the outcome and that it was inevitable, relief will be declined as being futile: Ex parte Aala (2000) 204 CLR 82 at [4], [80], [104], [131]–[132], [211]–[212].

17. [99]

    In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 (“S134/2002”), there was a complaint of procedural unfairness on the grounds that a tribunal had failed to disclose certain information which it had, but of which it was unaware and did not take into account. In those circumstances, the High Court held (at [33]):

The plaintiffs’ contentions

1. [100]

   The plaintiffs complain that they were denied procedural fairness as a consequence (individually and cumulatively) of:

   1. (1)

      the Commission failing to make the Stockley statement available to them;

   2. (2)

      the Commission failing to tell them about the 6 day gap;

   3. (3)

      the Commission failing to disclose to them that Kyriakopoulos had been asked but could not confirm that she had seen the maps when the search warrant was executed;

   4. (4)

      Watson being permitted to cross-examine “Obeid witnesses” on the footing that the maps were seen on the video, which was contrary to the fact, and on the footing that the maps were certainly in the manila folder, despite the Commission knowing of the 6 day gap and what Kyriakopoulos could not confirm; and

   5. (5)

      the Commission not disclosing to them matters which undermined Gardner Brook’s reliability as a witness. These matters were that:

2. [101]

   They say that they were, as a consequence, denied opportunities of cross-examination and submission and the possibility of a successful outcome with the result that the Commission’s findings that:

   1. (1)

      Edward Obeid Snr and Moses Obeid engaged in corrupt conduct within the meaning of the Act; and

   2. (2)

      Edward Obeid Snr, Moses Obeid and Paul Obeid gave evidence that was deliberately false or misleading;

3. [102]

   They seek declarations to this effect.

The Commission’s answers

1. [103]

   ICAC’s closing written submissions are lengthy, complex and heavily footnoted. The central propositions for which it contends appear to me to be as follows.

2. [104]

   First, ICAC puts that what Stockley said, and the fact of the so called 6 day gap, was not material which was credible, relevant and significant because it was not “adverse” and could have had no significance to a decision adverse to the plaintiffs given that:

   1. (1)

      the Stockley statement makes no allegation against any of the plaintiffs which goes to the ultimate findings of corrupt conduct in the Report, or to the intermediate factual findings of agreements between Edward Obeid Snr, Moses Obeid and Macdonald whereby Macdonald would arrange for the creation of the Mount Penny tenement and would provide Edward Obeid Snr and Moses Obeid with confidential information to benefit the Obeids;

   2. (2)

      the Stockley statement did no more than identify Stockley as a person who found the maps in the envelope on a particular day;

   3. (3)

      the 6 day gap amounted to no more than evidence that the maps were stored outside ICAC’s vault for a six day period; and

   4. (4)

      the material could have no practical bearing on whether findings of corrupt conduct should have been made, and amounts to no more than evidence about the handling of evidence.

3. [105]

   As part of this answer, ICAC puts that the tender of the Stockley statement in the public inquiry did not elevate it to material that was credible, relevant and significant.

4. [106]

   Second, ICAC puts that there is no obligation on a decision-maker to disclose material of which the decision-maker does not have actual knowledge and does not propose to consider in making the relevant decision. The Commissioner did not know of the Stockley statement or the 6 day gap.

5. [107]

   Third, ICAC puts that the plaintiffs lost no opportunity to advance their case or otherwise suffered any detriment because they:

   1. (1)

      had an adequate opportunity to deal with the substance of the allegation to which the material relates, namely, that the maps were found in Paul Obeid’s office;

   2. (2)

      were conscious of gaps in the evidence with respect to the chain of custody of the maps and took a deliberate forensic decision not to cross-examine in the face of those gaps; and

   3. (3)

      had the opportunity to present a case that the maps were not seized, or that there was insufficient evidence for a finding that they were seized, but did not do so.

6. [108]

   Fourth, ICAC puts that the plaintiffs’ complaint falls within the category of case (described at [59] in WZARH) where it is asserted that a decision-maker’s conduct misled the complainant into refraining from taking up an opportunity to be heard that was available, and that the plaintiffs have not demonstrated that they would have taken up the opportunity.

7. [109]

   Fifth, ICAC puts that relief should not be given because the plaintiffs were not deprived of the possibility of a successful outcome. The Report contained no findings of corrupt conduct against either Paul Obeid or Edward Obeid Jnr. As to the adverse findings with respect to Paul Obeid’s credit, the material (or any cross-examination upon it) would have made no difference having regard to the fact that they were made on the basis of a significant body of material.

8. [110]

   In the case of Edward Obeid Snr and Moses Obeid, there were incontrovertible facts before the Commission which provided an independent and sufficient basis for the intermediate factual finding that the maps were seized and the ultimate finding of corrupt conduct.

9. [111]

   First, ICAC puts that it was under no obligation to disclose the absence of recall on the part of Kyriakopoulos of the maps being present because such material was neither adverse, nor could it have had any significance to a decision adverse to the plaintiffs that all, or any of them, had engaged in corrupt conduct.

10. [112]

    Second, it puts that the substance of her non-recollection was disclosed. In her statement, Kyriakopoulos gave her recollection of what was in the manila folder, which did not include the maps. This gave rise to the clear inference that she did not so recall seeing the maps.

11. [113]

    Third, it puts that the plaintiffs lost no opportunity to advance their case or otherwise suffer any detriment because they had the opportunity to present a case that the maps were not seized or that there was insufficient evidence for a finding that they were seized, but did not do so.

12. [114]

    Fourth, it puts that the plaintiffs were not by its omission deprived of the possibility of a successful outcome because an express statement by Kyriakopoulos of not recalling the maps would have made no difference to the ultimate findings of the Report.

13. [115]

    First, ICAC puts that the questions put by Watson to the witnesses did not assert (as the plaintiffs would have it) the existence of video evidence that the maps were certainly within the manila folder inside the envelope.

14. [116]

    Second, it puts that what Watson actually put was true and had an evidentiary basis.

15. [117]

    Third, it puts that Watson’s questions were not unfair and no practical injustice otherwise resulted from them being asked because the plaintiffs lost no opportunity as a consequence of them being asked and answered (or not answered), and the plaintiffs were not deprived of a successful outcome.

16. [118]

    Fourth, it puts that Watson himself owed no obligation of procedural fairness to the plaintiffs and the Commissioner had no obligation to exercise his power to reject the questions.

17. [119]

    First, ICAC denies the existence of any arrangement or understanding with Gardner Brook as asserted by the plaintiffs.

18. [120]

    Second, it puts that procedural fairness did not require disclosure of the other matters said to go to the reliability of Gardner Brook’s evidence.

19. [121]

    Third, it puts that the plaintiffs did not lose any opportunity to respond to Gardner Brook’s version of events in the public inquiry and to challenge it in the course of advancing a positive case.

20. [122]

    Fourth, it puts that the plaintiffs were not by any omission deprived of the possibility of a successful outcome.

The Commission’s additional defence

1. [123]

   Rule 59.1(a) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides:

2. [124]

   Rule 59.2 provides:

3. [125]

   Rule 59.10 provides:

4. [126]

   ICAC argues that the plaintiffs’ procedural unfairness claim constitutes proceedings for judicial review of a decision which were, contrary to r 59.10(1), not commenced within time.

5. [127]

   The plaintiffs dispute that the rule is engaged because they seek declarations, not the setting aside of any decision.

6. [128]

   In the alternative, they move for an order extending the time under sub-rule 59.10(2).

Consideration

1. [129]

   For the reasons which follow, the plaintiffs’ claim of procedural unfairness fails.

2. [130]

   The plaintiffs are entitled to feel a sense of grievance at ICAC’s failure to provide them with the Stockley statement in accordance with its own procedures. Their sense of grievance is no doubt heightened by the fact that the procedural directions made by ICAC and imposed on them and others in the public inquiry were somewhat stringent. It is incumbent on ICAC, a body with extensive invasive powers, to ensure that material tendered by Counsel Assisting the Commission and admitted to evidence in a public inquiry, and which is to be made available in accordance with a procedure dictated by ICAC, is made available. It does not lie easily in ICAC’s mouth to suggest that the plaintiffs can have no legitimate complaint because the material which they should have been given was not significant, or because (somewhat remarkably) neither the Commissioner nor Counsel Assisting the Commission actually read it.

3. [131]

   However, so much having been said, I am not satisfied that by the omission, any practical injustice was wreaked upon any of the plaintiffs. Indeed, I am satisfied that it was not.

4. [132]

   This is not, as ICAC suggests, a case of the type (described in WZARH at [59]) where a plaintiff asserts that the conduct of a decision-maker misled it into not taking up an opportunity to be heard, with the consequence that it is for the plaintiff to demonstrate that it would have taken up the opportunity. If contrary to my view, it were such a case, the plaintiffs fail at the first hurdle because taken at its highest, their evidence does not establish that they would have taken up any opportunity to cross-examine or make submissions on what was disclosed by the Stockley statement. As appears below, I am satisfied that they would not have done so.

5. [133]

   In my opinion, the failure did not deny the plaintiffs an adequate opportunity to be heard, nor did it deprive them of the possibility of a successful outcome for three reasons.

6. [134]

   First, they were given sufficient opportunity to be heard on the allegation and to deal with the issue to which the Stockley statement went. It is to be remembered that the plaintiffs’ complaint is not that ICAC made an error of fact in deciding what it did: see S134/2002 at [37]. Their complaint is that ICAC failed to give them an opportunity to deal with a piece of evidence, it did not itself take into account, in coming to findings on issues which were undoubtedly in play.

7. [135]

   The Stockley statement goes, relevantly, to the question whether the maps were in the manila folder at the time of seizure under the search warrant. It is corroborative of the assertion that they were. Both the primary factual issue whether they were then in the manila folder and the intermediate factual issue whether there were agreements between Edward Obeid Snr, Moses Obeid and Macdonald (as ultimately found by the Commission) were plainly on the table as matters being investigated by the Commission. The plaintiffs do not suggest otherwise. Indeed, each of Edward Obeid Snr, Moses Obeid and Paul Obeid were examined in public hearing on the subject of the maps.

8. [136]

   The closing submissions of Counsel Assisting contained the following (at [240]–[243] - evidentiary references excluded):

9. [137]

   Turnbull SC’s evidence was that following Paul Obeid’s evidence on 6 February 2013, he believed the ability of ICAC to prove that the maps had been seized from the Locaway premises may be a significant issue in the public inquiry.

10. [138]

    Only Paul Obeid, represented by Turnbull SC, chose to deal with the issue in written submissions (dated 15 April 2013, as referred to earlier).

11. [139]

    None of the plaintiffs sought to lead any evidence at the inquiry. A noticeable omission was that they did not call anyone from their solicitors, Colin Biggers & Paisley, who had sent them the envelope to say what was in it, or not in it.

12. [140]

    By the end of the public inquiry, the plaintiffs had been given (and to an extent in the case of Paul Obeid, had taken up) the opportunity to meet these issues by adducing evidence and making submissions. There was thus no procedural unfairness. Although, having reached this conclusion, it is not strictly necessary to deal with the additional reasons why this complaint is not made out, I will nevertheless do so.

13. [141]

    The second reason the complaint fails is that I am satisfied that if the Stockley statement had been disclosed, the plaintiffs would not have taken any course different to the one they actually took. That is, I am satisfied that they would not have sought to cross-examine Stockley or made any submissions about the matters which she disclosed.

14. [142]

    In Stead, at 145–146, the High Court pointed out that a court who is asked to make a finding that a new trial, sought to remedy a denial of natural justice relevant to a finding of a fact, could make no difference to the result already reached, should proceed with caution. That approach is apt here. Proceeding with caution, I am nevertheless satisfied that the non-disclosure of the Stockley statement did not translate into the loss of a chance of obtaining a different outcome because I am satisfied, and I find, that the plaintiffs would ultimately have acted no differently to how they did act.

15. [143]

    Whilst the plaintiffs have generally lumped themselves together in these proceedings, each of Edward Obeid Snr, Moses Obeid and Paul Obeid must make out that he was, individually, denied procedural fairness.

16. [144]

    In my opinion, the assessment of what the plaintiffs would have done is to be made with due regard to objective factors which prevailed at the time of the public inquiry (being when the relevant steps would have been taken), particularly the attitudes of the plaintiffs and their legal advisors: Chappel v Hart (1998) 195 CLR 232 at [32]; Rosenberg v Percival (2001) 205 CLR 434 at 449; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 581.

17. [145]

    Neither Edward Obeid Snr nor Moses Obeid gave or called any evidence on what they might or would have done had the Stockley statement been disclosed. Neither Robberds QC nor Littlemore QC was called. It may be inferred that their evidence, or that of their lawyers, would not have assisted their respective erstwhile clients.

18. [146]

    Turnbull SC’s evidence, whilst clearly genuinely given, is hindsight evidence, and must be evaluated accordingly.

19. [147]

    It may be accepted that Turnbull SC would have (as he was bound to do) considered the options. However, there are a number of objective contemporaneous factors which satisfy me that there was no realistic prospect that any of the plaintiffs would have taken a different course.

20. [148]

    Each of the plaintiffs had throughout adopted a deliberate strategy of passivity inimical to the suggestion that they would have done anything else. Each had his eye on the different ball of other investigations or later (especially criminal) proceedings. Turnbull’s perception of the manner in which the inquiry was being conducted was an added disincentive from doing anything more.

21. [149]

    Robberds QC, on behalf of Moses Obeid, had adopted and steadfastly maintained the stance of not putting any positive case or assertion to any witnesses or raising, by way of cross-examination, any further matter that might be the subject of any other avenues by the Commission. Littlemore QC, on behalf of Edward Obeid Snr, had directed no cross-examination and made no submissions with regard to the seizure of the maps.

22. [150]

    Tunks, conscious of the fact that the evidence concerning the manner of search and recovery of the “folder/map” was unsatisfactory for ICAC, had recorded in his email to Moses Obeid on 6 March 2013 that he did not see the value in giving ICAC a chance to redeem the situation. It was not suggested that Tunks would have taken a different position had he seen the Stockley statement, and he too was not called.

23. [151]

    In paragraph 56c of his written submissions, referred to earlier, Turnbull SC made the submission on behalf of Paul Obeid that although the documents were found in an envelope in Paul Obeid’s office at Birkenhead Point, his evidence was that the envelope was sealed and he had never seen its actual contents.

24. [152]

    Whilst I accept Turnbull SC’s evidence that this submission was not intended to make an admission, it is objective contemporaneous behaviour corroborative of the fact that Paul Obeid was not challenging the presence in the envelope of the maps. This is not surprising given that Paul Obeid’s position was that the envelope was sealed and he did not see its contents. There was no positive case to be made upon which Stockley could have been cross-examined.

25. [153]

    Consistently with their strategy, the plaintiffs directed no submissions to the Kyriakopoulos statement, even though it gave rise to the clear inference that she did not recall the maps at the time the envelope was seized, nor did they seek to cross-examine Gardner Brook on his evidence with respect to the maps.

26. [154]

    The third reason the complaint fails is that I am satisfied that no alternative or additional course practically open to the plaintiffs could have induced a different outcome.

27. [155]

    The Stockley statement contained evidence adverse to the plaintiffs. It provided evidence corroborative of the seizure of the maps. Leaving aside the fact that the plaintiffs did not then, and do not now have a positive case to make that the maps were not seized, it is difficult to see how access to the Stockley statement might have changed the course of events so as to affect the relevant credit findings, the primary factual finding that the maps were seized in Paul Obeid’s office, or the intermediate finding of the agreements with Macdonald.

28. [156]

    According to Turnbull SC, the statements, including Stockley’s, suggested to him that ICAC’s systems for proving what was seized and guaranteeing secure and accountable storage of exhibits were inadequate. He suggests, as a factor in applying to cross-examine her, that he was confident that the statements which were disclosed (including Stockley’s) were as good as ICAC could do to prove that the maps had been seized from the premises, so that it was therefore unlikely that cross-examination would have elicited evidence less favourable to his clients. However, it is common cause that the Commissioner did not read the Stockley statement. It was not, therefore, taken into account.

29. [157]

    It is difficult to articulate a submission which could have been put to, let alone one which might have persuaded the Commissioner, that Stockley’s evidence in some way undermined or was inconsistent with a finding that the maps were seized in Paul Obeid’s office. To the contrary, had the Commissioner’s attention been drawn to it (as it should have been), it would have reinforced the finding. Had Turnbull SC applied and been permitted to cross-examine Stockley, the same effect would have been achieved, unless he was able to cross-examine her out of her evidence that the maps were there, a proposition for which no basis has been identified.

30. [158]

    Ironically, ICAC’s lapse benefitted the plaintiffs.

31. [159]

    I interpolate that I consider that Turnbull SC’s perception that ICAC’s systems were inadequate was another reason why he would have left the subject alone.

32. [160]

    On the unrealistic hypothesis that the disclosure of the Stockley statement might have influenced the Commission to make a different finding with respect to the maps having being seized in Paul Obeid’s office, it does not seem to be a realistic possibility that this would (or could) have led the Commission to a different conclusion on the credibility of Edward Obeid Snr, Moses Obeid or Paul Obeid. On the significant body of material before the Commission, there was clearly sufficient basis for those findings in any event.

33. [161]

    In Chapter 4 of the Report, under the heading “Credibility Issues”, the Commissioner said:

34. [162]

    The credit findings were made on the basis of a significant body of material, and demeanour played a significant role.

35. [163]

    Specific to Paul Obeid’s credit, the particular instance identified by the Report in finding his evidence unreliable was:

36. [164]

    This deals with an issue unrelated to the plaintiffs’ complaints in these proceedings.

37. [165]

    As to the intermediate findings of the agreements, the Report records that the Commission made some 24 factual findings from which those agreements were inferred. Only one of those findings related expressly to the provision of the maps. Other findings from which the agreements with Macdonald were inferred included:

38. [166]

    Additionally, there were findings that Macdonald provided the following confidential information (apart from the Maps) to Moses Obeid or members of the Obeid family, and that the use to which that information was put was to benefit the Obeid family financially:

39. [167]

    Having regard to the significant body of other evidence upon which the findings of the agreements were based, even on the same unrealistic hypothesis that the disclosure of the Stockley statement could have influenced a different finding as to the provenance of the maps, the ultimate outcome was, in my opinion, destined to be the same.

40. [168]

    The 6 day gap is an intellectual construct. It is of no practical significance. It represents no more than an absence of direct evidence as to the precise physical whereabouts of the envelope for six days of the time that Stockley had it.

41. [169]

    The plaintiffs put that the information which revealed the 6 day gap was exculpatory evidence (in that it throws doubt on the efficacy of the chain of custody of the maps) which was required to be disclosed by ICAC.

42. [170]

    As support for the existence of an obligation to disclose exculpatory material, the plaintiffs cited Shields v Overland (2009) 26 VR 303. The case involved an application to the Court for review of a decision of the Police Appeals Board, confirming an order of the former Commissioner of Police to dismiss the plaintiff from the police force under a provision of the Victorian Police Regulation Act 1958 (Vic). The ultimate decision that the Board was required to make was whether the applicant, Shields, had satisfied it that the dismissal order was not “sound, defensible or well-founded”. One of the applicant’s grounds for review was that the Board made either a jurisdictional error or an error of law on the face of the record in refusing to grant him leave to rely on additional evidence, including a report of an inspector McCole, which had arrived at a different conclusion to a report which the Chief Commissioner had relied upon.

43. [171]

    Kyrou J found that the Board made an error of law on the face of the record in refusing to grant leave to rely on the McCole report because it misunderstood its statutory powers and the criteria upon which the admission of such material was to be based.

44. [172]

    At [109], his Honour made the following observation:

45. [173]

    It is upon this that the plaintiffs rely. I reject the submission.

46. [174]

    The observation was strictly obiter, and was made by his Honour apropos a specific and different statute to the one under consideration here.

47. [175]

    In Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2014) 220 FCR 202 at [149], Kenny J made the following observation, with which I respectfully agree:

48. [176]

    Such an obligation cannot be implied in relation to an ICAC investigation. It would be impractical and unworkable. It would place on ICAC an intolerable burden, requiring it to assess and make available material on an ongoing basis on the footing of uncertain criteria. It would almost inevitably require ICAC to disclose confidential investigatory material.

49. [177]

    The plaintiffs did not suggest any basis for the necessity to disclose the 6 day gap other than that it is exculpatory.

50. [178]

    I should say that I am not persuaded that the 6 day gap material is indeed exculpatory.

51. [179]

    One of the statements tendered as part of exhibit J-181 (and uploaded) was that of Lynette Margaret Kennedy (6 February 2013), to which was exhibited a record of the whereabouts of the envelope. The record shows that the envelope was out of ICAC’s property vault between 22 February 2012 and 5 March 2012, and reveals nothing about its precise whereabouts during that period. The 6 day gap evidence establishes that Stockley had custody of the envelope for the period 22 February 2012 to 28 February 2012, which means that had the plaintiffs had something to say about the chain of custody, the 6 day gap evidence would have been to their detriment, not to their benefit.

52. [180]

    But even then, no practical injustice was caused by its specific non-disclosure for the same reasons as are pertinent to the Stockley statement. The plaintiffs would not have acted any differently had they specifically known about it, and it is difficult to see to what practical and beneficial use they could have put it. Additionally, as with the Stockley statement, it is not in dispute that the Commissioner was not conscious of the 6 day gap.

53. [181]

    The plaintiffs’ complaint in connection with the Kyriakopoulos statement can be dealt with briefly. It has no substance. In her statement, Kyriakopoulos described what she recalled seeing inside the envelope and the manila folder. She said nothing of having recalled seeing the maps. The clear inference (which Turnbull SC actually drew, and which any competent practitioner would have drawn) was that she did not have that recollection. Procedural fairness did not require ICAC to disclose an active non-recollection.

54. [182]

    The plaintiffs have not made out any non-disclosure, let alone one of material that was credible, relevant or significant, or that could have had any impact on the primary fact that the maps were seized from Paul Obeid’s office, or on the intermediate factual findings of agreements between Macdonald, Edward Obeid Snr and Moses Obeid.

55. [183]

    Although it will contribute to the prolixity of this judgment, it is necessary, to deal with this issue, to set out the pertinent passages of Watson’s cross-examination of Edward Obeid Snr, Moses Obeid and Paul Obeid. Although the entirety of these passages is relevant, particularly for context, the pivotal individual passages are highlighted.

56. [184]

    No doubt because of the difficulty in sensibly articulating it, very little attention was directed by the plaintiffs in their written submissions to this complaint as one of a denial of procedural fairness. The complaint is, as I understand it, that Watson was “permitted” by the Commissioner to cross-examine on a false premise, namely that the Commission had video evidence of the maps themselves being seized under the search warrant. It is put that the premise is falsified by the video recording of the search. It is also put that Watson was permitted to cross-examine on the false premise that the maps were certainly inside the manila folder.

57. [185]

    The Court watched the video a number of times. One thing is clear – it does not show the presence of the maps in the envelope. What appears to be the manila folder can, however, be observed.

58. [186]

    On behalf of Watson, the point was made that the envelope does not appear to be sealed and that it was found in the left hand corner of the room, contrary to Paul Obeid’s evidence. Nothing turns on this.

59. [187]

    It is not suggested that the Commissioner viewed the video. Apparently, he did not do so. If the premise was false, the Commissioner was unaware of the falsity. It is difficult to see, then, how he can properly be criticised for allowing the examination on the footing of a premise, the falsity of which he was oblivious.

60. [188]

    This drove the plaintiffs to argue, as I understand it, that by the following process of reasoning, the Commissioner is to be taken as having known what the video shows:

    1. (1)

       ICAC is a corporation;

    2. (2)

       the functions, acts and omissions of the Commissioner in conducting the public inquiry are to be taken to have been done by the Commission (s 4(3));

    3. (3)

       the knowledge and state of mind of the Commission’s officers is to be attributed to the Commission;

    4. (4)

       the Commission had knowledge of what the video shows because Counsel Assisting and ICAC investigators had seen it; and

    5. (5)

       it follows that when the Commissioner permitted Watson to cross-examine in the manner complained of, this was an act of ICAC which, because of the knowledge of Watson and the investigators, was done in the knowledge of what the video showed.

61. [189]

    As Finn J pointed out in Australian Competition and Consumer Commission v Radio Rentals Ltd (2005) 146 FCR 292 at 183, the context can vary widely in which the question of attribution of knowledge to a corporation can arise in virtue of knowledge possessed by one or more of its officers and agents.

62. [190]

    The specific context here is the exercise by the Commissioner of the function of making rulings required in public inquiry. This is a function which can only sensibly be discharged by a Commissioner on the basis of knowledge which he or she actually has, albeit that the performance of that function may ultimately be taken to be an act of the Commission. In this context, the aggregation of others’ knowledge with that of the Commissioner for the purpose of assessing the legitimacy of rulings would be contrary to common sense. To do so would have the effect of creating a notional person making rulings, see: Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 at 144–145.

63. [191]

    The result would also be out of accord with the basic principle which applies to the aggregation of knowledge. In Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 582–583, the High Court referred, with approval, to the following statement of Bright J in Brambles Holdings Ltd v Carey (1976) 15 SASR 270 at 279:

64. [192]

    It can hardly be said that Counsel Assisting and ICAC investigators are persons who are sufficiently close and relevantly connected with ICAC so as to make their knowledge attributable to ICAC in the context of a ruling by the Commissioner in public inquiry.

65. [193]

    The complaint of procedural unfairness with respect to Watson being permitted to cross-examine on the allegedly wrong hypothesis must fail for the reason only that the Commissioner did not know of it.

66. [194]

    But there is another reason why this complaint has not been made out.

67. [195]

    The difficulty with this complaint is that it is about an assumption upon which a question (or questions) are said to have been asked. If the question is answered on an assumption which later turns out to be wrong, the answer is as worthless as was the question.

68. [196]

    It also depends on the objected to examination having rested upon the premise complained of, namely, the assumption (which particularly Paul Obeid was asked to make) that there was video evidence showing the maps – as maps – being seized. However, what was put by Watson lacks sufficient clarity to conclude that, read in context, it indeed rested on that premise. That is not to suggest that the contrary is not reasonably arguable.

69. [197]

    The first pivotal exchange complained of is in Paul Obeid’s public examination:

70. [198]

    The assumption is that the video shows that the manila folder was with the documents, which Paul Obeid himself says came from Colin Biggers & Paisley. That assumption is unobjectionable. It was later held to have been made out. Even if the complained of assumption (that the video actually shows the maps) was present, and there was any vice in it, it had no impact on Paul Obeid, because he asked Watson to repeat the question.

71. [199]

    Watson thereafter asked:

72. [200]

    This question too does not expressly include the complained of assumption. The assumption put is that a manila folder, which had four documents, was found with the envelope. It makes no reference to the video recording, although, on one view, if the assumption was present in the preceding question, it was also present in the next one.

73. [201]

    To this question, Paul Obeid responded:

74. [202]

    Whatever the question means, Paul Obeid suffered no procedural unfairness from it because he did not accept the assumption.

75. [203]

    The next pivotal questions were:

76. [204]

    Here, the assumption put is not related to what the video recording shows, but a direct assumption that the manila folder containing the four documents was found.

77. [205]

    There was nothing objectionable in Watson having required Paul Obeid to make the assumption, to be later made out, that the maps were in the manila folder. But even if it had not been, there is no procedural unfairness in this. Ultimately, the probative value of the question and the response to it would be determined by whether the assumption was later made out. In this event, it was.

78. [206]

    So far as Paul Obeid’s compulsory examination was concerned, it is to be observed that the video was not referred to and that at that stage, he was prepared to concede that it was possible that he recognised the 30 May 2008 map as something he had seen before.

79. [207]

    Three pivotal questions were asked by Watson of Moses Obeid in his public examination.

80. [208]

    In the first, Watson stated that the envelope contained the manila folder (incorrectly transcribed as the manually folder), without referring to its contents.

81. [209]

    In the second, before showing Moses Obeid the manila folder, he said that “in due course we’ll prove [it] was amongst the documents seized”. He went on to require Moses Obeid to open it up and observe four documents in it, including the maps.

82. [210]

    In the third, he required Moses Obeid to assume that one of the maps was “scooped up as part of the execution of the search warrant” at Birkenhead Point.

83. [211]

    None of these questions are premised on what the video shows.

84. [212]

    I see nothing impermissible in Watson having asked Moses Obeid, as a basis for a question, to make the assumption that the maps were in the manila folder or stating that this would be proved. There is no procedural unfairness in that.

85. [213]

    Edward Obeid Snr was asked by Watson to assume that it could be proved that the manila folder and a map which he was shown was seized from Paul Obeid’s office in Birkenhead Point, and he was asked whether he could explain, if the assumption was correct, what the map was doing in Paul Obeid’s office.

86. [214]

    These questions are not premised on what the video shows.

87. [215]

    I see nothing impermissible in Watson having asked Edward Obeid Snr, as a basis for a question, to make the assumption that the maps were in the manila folder or stating that this would be proved. There is no procedural unfairness in that.

88. [216]

    But in any event, prior to the Report, the plaintiffs had every opportunity to deal with the premises which they say were falsely put. The video had been uploaded and, as the evidence revealed, had been seen by them or their legal advisors prior to their final submissions. They did not take up the opportunity and they certainly did not lose one.

89. [217]

    There is one additional matter deserving of comment. The substratum of this claim would not exist had Paul Obeid’s request to see the video, which was not in any way unreasonable, been acceded to rather than rebuffed.

90. [218]

    The plaintiffs put that they were unfairly denied the opportunity of properly addressing Gardner Brook’s credit either in cross-examination or by way of submission, because ICAC failed to disclose information pertinent to his credit, namely:

91. [219]

    The plaintiffs originally put, but did not develop, a submission that they were also denied procedural fairness because ICAC had failed to disclose that Gardner Brook had been extensively examined as to credit in his compulsory examination. Procedural fairness would not have required disclosure of matters going solely to Gardner Brook’s credit. Although it is not necessary to deal with this further, I observe that matters upon which he was cross-examined as to credit, including alleged substance abuse, were disclosed.

92. [220]

    I am neither satisfied that any arrangement or understanding as asserted by the plaintiffs was made or reached, nor that if it was made, that it was in any way improper.

93. [221]

    The evidence of the meeting on 13 March 2012 reveals no such arrangement.

94. [222]

    The first conversation between Mangioni and Watson on 23 July 2014 was unexceptional. It is to be expected that in an inquiry such as Operation Jasper, Counsel Assisting would exercise judgment as to how to examine particular witnesses and upon what issues and potential findings to concentrate. There is nothing to suggest that Gardner Brook was encouraged to do anything but tell the truth. I do not consider that anything improper is revealed by that conversation.

95. [223]

    In his submissions, which were uploaded and made available to the plaintiffs, Gardner Brook put the following:

96. [224]

    There are aspects of the conversation at the second meeting on that day which might raise eyebrows, but they were made in the context of Operation Spicer with which I am not directly concerned. The conversation does not disclose anything probative of the existence of the earlier arrangement or understanding alleged to have been made with Gardner Brook. Gardner Brook was not promoted as a hero, nor was he presented as a “white hat” (presumably a person of virtue).

97. [225]

    To the contrary, at [461] of Watson’s submissions, he submitted that a corrupt conduct finding should be made against Gardner Brook, but stated that the Commission could give special consideration as to whether Gardner Brook be referred to the DPP, in light of the fact that he gave “basically honest evidence” which was helpful in exposing the wrongdoing of others, even though that same evidence tended to implicate himself.

98. [226]

    Given that the plaintiffs have failed to establish the arrangement or understanding, the question of what they might have done, had they established it and had it been disclosed, does not arise.

99. [227]

    Significantly, however, the plaintiffs did not call evidence as to what steps they might have taken had they been informed of matters which they say should have been, but were not disclosed about Gardner Brook. They have not established that any opportunity for a successful opportunity was denied them.

100. [228]

     The plaintiffs’ complaint that it was put to Gardner Brook that he should assume that the manila folder was “scooped up” off Paul Obeid’s desk is trivial. The assumption is inaccurate but in an irrelevant respect. It was an imprecise advocate’s flourish. Watson went on to ask whether the maps were shown to him by some member of the Obeid family and Gardner Brook gave evidence that the 30 May 2008 map was. The wrong assumption played no meaningful part in his evidence. In any event, the plaintiffs had the opportunity to deal with it.

Limitation period under the UCPR

1. [229]

   Having regard to the conclusion that the plaintiffs’ procedural unfairness case fails, it is not necessary to consider whether r 59.10 of the UCPR is engaged, and if so, whether or not time should be extended. I would not have extended the time in respect of Edward Obeid Jnr because he has no interest in challenging the Report. With respect to the other plaintiffs, I would have extended the time because they have a vital interest in the findings of the Report, no discernible prejudice to ICAC was caused by the passage of time, and given the nature of the complaints, had they been made out, I would consider that the public interest would have been served by extending the time.

2. [230]

   The plaintiffs claim damages from each of the Commission, the Commissioner, Watson, Lockley and Grainger asserting that each was a holder of a public office and each committed the tort of misfeasance in public office in a different way.

3. [231]

   Although only liability is being tried, the plaintiffs must show that they were caused some damage by the conduct complained of: see Frank Davies Pty Ltd v Container Haulage Group Pty Ltd (No 2) (1989) 98 FLR 324 at 325; Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd (2015) 323 ALR 570 at [153]–[154].

4. [232]

   In no case is an assertion of an intention to cause harm made. In each case, it is claimed that the actor acted with reckless indifference as to whether the impugned conduct was likely to harm the plaintiffs.

5. [233]

   It is convenient to deal with each claim for misfeasance in public office separately.

6. [234]

   Before doing so however, it is appropriate to identify the legal principles in play.

The legal principles

1. [235]

   Misfeasance in public office is an intentional tort, committed when damage is suffered as a result of an act done by a public officer in excess of authority, with the intention of causing harm to a plaintiff, or which the officer knows, or ought to know is beyond power, and which involves a foreseeable risk of harm. The mental element in the tort is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury, or with the knowledge that there is no power to engage in that conduct and it is calculated to produce injury, or where the officer acts with reckless indifference as to the existence of power to support the impugned conduct: Northern Territory v Mengel (1995) 185 CLR 307 (“Mengel”) at 345–348 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ), 356–360 (Brennan J) and 370–371 (Deane J).

2. [236]

   The essence of the tort is bad faith in the exercise of public powers: Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 137 (Auld LJ citing Steyn LJ in Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 at 347B).

3. [237]

   The precise limits of the tort are still undefined: Sanders v Snell (1998) 196 CLR 329 at 346 [42] (Gleeson CJ, Gaudron, Kirby and Hayne JJ).

4. [238]

   A survey of the authorities and academic writings reveals some uncertainty as to whether it is sufficient that the official knew that the act was beyond power and that there was a foreseeable risk of harm, or whether it is necessary that the officer actually foresaw a risk that the conduct was likely to harm the plaintiff but proceeded not caring about that risk: see for example Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 196; Poynder v Kent [2008] VSCA 245 at [117]; Ruddock v Taylor (2005) 222 CLR 612 at 622 [28]; South Australia v Lampard Trevorrow (2010) 106 SASR 331 at 338 [263]; Mengel at 346–347; Sanders v Snell (1998) 196 CLR 329 at 344–345 [38] (Gleeson CJ, Gaudron, Kirby and Hayne JJ); Cornwall v Rowan (2004) 90 SASR 269 at 324 [212]; R P Balkin and J L R Davis, Law of Torts (5th ed, 2013, LexisNexis Butterworths) at 725 [25.31]; C Sappideen and P Vines, Fleming’s The Law of Torts (10th ed, 2011, Thompson Reuters) at 714 [27.160].

5. [239]

   The plaintiffs argued for the former, less stringent test, the defendants for the latter, more stringent one. Some of the dicta on the issue are open to be construed either way. Given that the tort is one of intention, I would incline to the more stringent test. However, for reasons which appear below, it is not necessary for me to express a concluded view on the point. Resolution of this controversy is more appropriately left to appellate authority.

6. [240]

   The tort is principally concerned with the abuse by the holder of a public office of a public power or one which must be exercised for the public good and which is attached to the office: Cannon v Tahche (2002) 5 VR 317 at 328 [28]. In Cannon v Tahche at 337 [49], the Court said:

7. [241]

   In that case, it was held that the office of a prosecutor does not have, as an incident of it, any relevant power in the discharge of which the public has an interest, and that whatever powers may be said to attach to the office, a prosecutor appearing in court to prosecute does not thereby exercise any relevant power, but rather, performs a function of the office, namely, to represent the Crown. It was also held that a prosecutor’s duty of disclosure is ethical in nature and is a discretionary responsibility exercisable according to the circumstances, as the prosecutor perceives them to be. It is a duty owed to the Court and not one enforceable at law at the instance of the accused.

8. [242]

   In Leerdam v Noori (2009) 227 FLR 210 at 214–215 [16], Spigelman CJ said:

9. [243]

   In that case it was held that a solicitor acting on behalf of the Minister for Immigration in the Administrative Appeals Tribunal did not occupy a position within the scope of the tort of misfeasance in public office.

10. [244]

    In Tampion v Anderson (No 2) [1973] VR 715 at 722, the Full Court of the Supreme Court of Victoria held that counsel assisting a board of inquiry established by an Order in Council did not hold a public office for the purpose of the tort, as the counsel had no statutory powers with respect to the inquiry.

11. [245]

    Allegations that statutory powers have been exercised corruptly or with deliberate disregard to the scope of those powers are not lightly to be made or upheld: Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 at 165 [60].

The Commission

1. [246]

   The plaintiffs claim that ICAC is a public officer. They put that in denying them procedural fairness (in the respects that were the subject of their procedural fairness complaint – save with regard to the Stockley statement, the non-disclosure of which they accept cannot ground the tort because the non-disclosure was clearly inadvertent) the Commission acted without power in making the findings and issuing the Report.

2. [247]

   They claim that ICAC knew that it had failed to accord procedural fairness, or was recklessly indifferent to the fact that it had failed to do so, in circumstances where there was a foreseeable risk of harm to them.

3. [248]

   For the purpose of establishing the requisite mental element, with respect to each of the 6 day gap, the ‘Kyriakopoulos affair’ and the Gardner Brook arrangement, the plaintiffs put that the states of mind of Fox and Stockley are to be attributed to the Commission, and that each must have appreciated that what had occurred was unfair and misleading, that Fox had actual knowledge that Kyriakopoulos could not recall seeing the maps and of the arrangement or understanding with Gardner Brook, and that Stockley knew of the 6 day gap and that, by inference, Fox also knew of it because of his heavy involvement in investigations concerning the seizure of the maps.

4. [249]

   They put that ICAC, through Fox, Stockley “or otherwise”, must be taken to have known that its excess of power would cause the plaintiffs damage, because it is obvious that the making of corruption findings against the plaintiffs would cause injury to them. They put that ICAC must have known this, or if not, was certainly recklessly indifferent to it.

5. [250]

   Edward Obeid Snr, Moses Obeid and Paul Obeid assert that they suffered damage as a result of the stress and humiliation to which they were subjected to when cross-examined about the maps, and that they have suffered reputational damage as a result of the adverse findings made against them.

6. [251]

   They put that even if they have not established that they suffered any damage, the Court should make a declaration if they have otherwise made out the elements of the tort. They put that such a declaration has significant utility, particularly in the context of ICAC exercising its public power.

7. [252]

   ICAC puts all elements of the tort in issue, including that it is a public officer.

8. [253]

   By dint of my findings that the plaintiffs were not denied procedural fairness, this claim fails at the outset.

9. [254]

   Although it is not therefore strictly necessary to deal with it further, I consider it appropriate nevertheless to make a number of observations because of the seriousness of the allegation.

10. [255]

    The proposition that the Commission is a public officer is arguable. The difficulty with it is that as was observed by the Queensland Court of Appeal in Moder v Commonwealth of Australia (2012) 261 FLR 396 at 415 [70], after referring to Mengel:

11. [256]

    The difficulty identified arises because of the mental element of the tort, which is difficult to ascribe to corporate bodies. However, there is authority that statutory corporations can be public officers for the purposes of the tort: see Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 270 [126]; South Australia v Lampard-Trevorrow (2010) 106 SASR 331 at 388 [265] (Doyle CJ, Duggan and White JJ); Dunlop v Woollahra Municipal Council [1981] 1 NSWLR 76 at 84 cf. Porter v OAMPS Ltd (2005) 215 ALR 327 at 353 [106] in which Goldberg J held that the Australian Securities and Investments Commission did not hold a public office.

12. [257]

    In support of their submission that the Commission can commit the tort, the plaintiffs rely on s 4(3), which provides that the functions of the Commission are exercisable by the Commissioner and any act, matter or thing done in the name of, or on behalf of the Commission, by the Commissioner, or with the authority of the Commissioner, shall be taken to have been done by the Commission. I have significant doubt that the work of this section extends to impute to the Commission a state of mind which accompanies an act by the Commissioner, as opposed to imputing to the Commission the act itself.

13. [258]

    Whether the Commission is capable of committing the tort may conceivably turn on the particular power being exercised. For example, I consider there to be significant difficulty with the proposition that where the power being exercised is the making of a ruling by a Commissioner, in the course of an inquiry, that this can found to be a tort by ICAC as a corporation, rather than by the Commissioner personally.

14. [259]

    Given the personal nature of the tort, there is also significant difficulty with the unqualified submission that the states of mind of various ICAC employees or Counsel Assisting should be attributed to ICAC as a corporation.

15. [260]

    The plaintiffs have not established, indeed they have not come remotely close to establishing, that Fox or Stockley knew, or even turned their minds to the possibility that the plaintiffs were being denied procedural fairness (by reason of anything that they did or knew), or that they knew there was a lack of power (or even that issues of lack of power were in play), or were reckless about any such lack. Apart from anything else, this would have been extremely difficult seeing as the plaintiffs have not made out any denial of procedural fairness in the first place.

16. [261]

    The plaintiffs have also failed to establish that they suffered any damage by the conduct complained of.

17. [262]

    None of the plaintiffs have given evidence. It may be accepted that any examination is likely to entail some stress for the examinee. There is, however, no basis for a finding that they suffered any humiliation. There is no basis for a finding that any stress (or humiliation) which they may have suffered was attributable to examination about the maps, or that it extended beyond that which they would have suffered anyway (assuming they suffered any at all).

18. [263]

    Finally, damages being an element of the tort, it is difficult to see what utility there would be in making a declaration had the plaintiffs established the other elements of the tort, but failed to establish the critical element of damages.

The Commissioner

1. [264]

   The claim of misfeasance against the Commissioner is that he made the suppression order with respect to the Heads of Agreement knowing that he had no power to do so, and reckless as to the possibility that by doing so the plaintiffs would suffer damage.

2. [265]

   This claim entails the following propositions:

   1. (1)

      the Commissioner failed to exercise the power because he did not consider whether there was any basis upon which he could find the requirements of s 112(1A) to be satisfied. This is to be inferred from the facts that he did not ask Watson about the reason for the suppression order, did not ask for a copy of the unredacted version and on a reading of the redacted section, it is clear that there is no logical or rational basis on which it could be concluded that those parts could prejudice any ongoing investigations;

   2. (2)

      the Commissioner knew the limits of his powers;

   3. (3)

      the Commissioner must have realised that the redacted section was relevant to the character of the Heads of Agreement because Watson had made the whole of the agreement available to Moses Obeid, but did not consider at all whether there was any basis upon which the requirements of s 112(1A) were satisfied, and must have turned his mind to the possibility that in making the order he was acting in excess of his powers, but nevertheless went ahead and made the order;

   4. (4)

      the Commissioner knew or was reckless as to the fact that the making of the suppression order would cause the plaintiffs, and particularly Moses Obeid, harm because having witnessed the examination of Moses Obeid, he must have known that Moses Obeid was denying an equity interest in the company and that the redacted version of the agreement contradicted that denial. He must also have known that the redacted version of the Heads of Agreement on its face contradicted that evidence, and therefore, given the publicity surrounding the hearing, that the press would report that Moses Obeid’s evidence was contradicted by the redacted version, as in fact occurred the following day; and

   5. (5)

      the suppression order caused the plaintiffs damage for the following reasons: it is to be inferred from the reporting of Moses Obeid’s evidence in the Sydney Morning Herald caused the plaintiffs some reputational damage; a person reading the article would be left with the clear impression that there was no doubt that the “secret shareholding” was proved by the Heads of Agreement; that impression could not have been conveyed by any responsible journalist with access to the unredacted version of the Heads of Agreement; while there possibly would have been some sort of article in any event, that article would have almost certainly been different; and it ought to be inferred that the press would have sought accurately to report the events of the day, including the fact that there were clauses in the Heads of Agreement consistent with Moses Obeid’s evidence to the effect that there was a loan and not a holding of shares.

3. [266]

   The plaintiffs put that if it is established that the Commissioner acted in excess of power, this should be judicially noticed by a declaration even if no damage is established, because it is important that the exercise of the power to make a suppression order should be done scrupulously according to law.

4. [267]

   It is not in dispute that the Commissioner was at all relevant times a public officer.

5. [268]

   It is also not in dispute that s 112(1A) makes it a condition of the exercise of the power to direct non-publication, under s 112(1), that the Commissioner must be satisfied that the direction is necessary or desirable in the public interest.

6. [269]

   This claim is without merit.

7. [270]

   I have no difficulty in accepting that the Commissioner knew what s 112(1A) required.

8. [271]

   The procedure which was adopted with respect to the application for, and the making of the suppression order was summary, as one might expect.

9. [272]

   Watson tendered the redacted version and moved for the suppression order on the basis of “security purposes”.

10. [273]

    In asking for the order, Watson was acting at the behest of investigators who had discussed with him the need for redactions and who prepared the redacted version.

11. [274]

    On 19 December 2012, the Commissioner had received the memorandum from Meaghan Fleeton in relation to Operation Credo.

12. [275]

    There was nothing exceptional in Watson moving for the suppression order and the Commissioner granting it, taking into account that Counsel Assisting was communicating that it was for security purposes – a shorthand version of saying that confidentiality was required to protect the integrity of ICAC investigations.

13. [276]

    There is nothing to support a finding other than one that the Commissioner purported to exercise a power which he considered he had.

14. [277]

    It borders on the eccentric to suggest that the Court should infer that the Commissioner made the suppression order in circumstances where he knew he had no power to make it, or was recklessly indifferent as to whether he was acting in excess of his power.

15. [278]

    I reject the proposition that the Commissioner knew, or was reckless as to the fact that the making of the order would cause the plaintiffs harm, because he knew that the redacted version contradicted Moses Obeid’s version and that the press would record that contradiction.

16. [279]

    The basal premise that the redacted version contradicts Moses Obeid’s denial of an equity interest is false. Clause 1 of the Heads of Agreement records a sale in unequivocal terms. It provides for the unconditional transfer of the shares with no provision for retransfer. This unequivocally reflects an equity interest. On no reasonable view can cl 3.1 be construed, because of the use of the word “interest”, as affecting this so as to warrant the conclusion that the transaction is a loan, on security of the shares. The same goes for the consultancy provided in cl 3.2. It is to be observed that the Heads of Agreement makes no provision for the payments under cl 3 to cease once the “Purchase Price” had been repaid (assuming it to be the loan principle).

17. [280]

    Even if there is some contradiction or tension between Moses Obeid’s evidence and the redacted version, there is no basis for concluding that the Commissioner knew it, even less that the Commissioner must have known that the press would report that Moses Obeid’s evidence was contradicted by the redacted version. These suggestions are inconsistent with the fact (which the plaintiffs themselves assert) that the Commissioner was not shown the unredacted version. They are fanciful.

18. [281]

    There is no foundation for a conclusion that the newspaper, armed with the unredacted version, would have reported things any differently to the way that it did or that this was foreseeable.

19. [282]

    It is to be observed that the article accurately reported that Moses Obeid had sought to answer the Heads of Agreement by saying that he believed it had been superseded by a loan agreement.

20. [283]

    The unredacted version was made available to Counsel for Moses Obeid and he raised no objection to the cross-examination on the footing that there was any tension between the two versions or some relevance to be attached to the differences.

21. [284]

    The plaintiffs have not established that they suffered any loss because of the making of the suppression order.

Watson

1. [285]

   The claim of misfeasance against Watson entails the following propositions:

   1. (1)

      in his role as Counsel Assisting, he was a public officer. This is said to be the consequence of his appointment under s 106, which appointment, it is put, imposed on him a public duty to assist the Commission and which required him to discharge a public function;

   2. (2)

      the appointment gave him power under s 34 of the Act to examine witnesses, the exercise of which power was conditioned by a requirement that he comply with the New South Wales Barristers’ Rules (the Rules). The Rules in force at the relevant time were published on 8 August 2011. The relevant ones are:

   3. (3)

      the effect of these Rules was to place a condition on the exercise of Watson’s power to cross-examine, that there be a proper and reasonable basis for putting the propositions that are put in the manner in which they are put;

   4. (4)

      Watson cross-examined the Obeid witnesses on the basis, contrary to the fact known by him or the falsity of which he was recklessly indifferent, that there was no doubt that the maps had been found in the Obeid offices and that there was a video recording showing the manila folder, containing the maps, being seized from the Obeid offices;

   5. (5)

      Watson knew, or was reckless as to the fact that he was acting in excess of power, by putting propositions with no reasonable basis;

   6. (6)

      Watson knew, or was reckless as to the fact that his cross-examination of Edward Obeid Snr, Moses Obeid and Paul Obeid was likely to cause them harm in the form of damage to reputation and credit and exposure to findings of corruption, and if Watson did not in fact foresee that harm, it was plainly foreseeable; and

   7. (7)

      the plaintiffs suffered damage in the form of stress, humiliation or embarrassment; reputational damage in the eyes of those present during the evidence of Edward Obeid Snr, Moses Obeid and Paul Obeid, who were likely to perceive them as lying in their evidence relating to the Maps; and reputational damage as a consequence of the findings of corrupt conduct and adverse credit findings made against them, to which it may be inferred that Watson’s cross-examination contributed.

2. [286]

   As an alternative position, the plaintiffs put that Watson intentionally or recklessly exercised the power to cross-examine in a way as to constitute the tort of misfeasance in public office. The plaintiffs acknowledged that this formulation may fall outside the formulations in Mengel. They put that whilst I am bound by Mengel, the tort is still under development and its limits are not ascertained. Save to state that on this alternative formulation, the complaint would not on the facts be made out, I do not propose to deal with it.

3. [287]

   As appears above, I am not satisfied that Watson’s questions contained the inaccurate factual assumptions of which the plaintiffs complain. That being the case, this complaint must fail at the first hurdle. It follows that it has not been established that Watson breached any of the Rules in his cross-examination of Edward Obeid Snr, Moses Obeid and Paul Obeid. It is not in dispute that Watson saw the video, and it is clear that the video did not show the maps being seized. Had the questions complained of included the assumption that the video recording showed the maps being seized, Watson would have known that assumption to be wrong.

4. [288]

   The complaint against Watson fails for further reasons.

5. [289]

   First, as Counsel Assisting, he did not hold public office. He held no office which required him to perform duties for the public. His function was to assist the Commission, if appropriate, by examining or cross-examining witnesses with leave of the Commission. The grant of such leave did not invest Watson with any public power. He was exercising functions as Counsel and was no more a public officer than was the solicitor in Leerdam v Noori (2009) 227 FLR 210, counsel assisting the Board of Inquiry in Tampion v Anderson (No 2) [1973] VR 715, and the solicitor employed to prosecute in Cannon v Tahche (2002) 5 VR 317.

6. [290]

   Second, the Rules are not conditions upon the exercise of power, statutory or otherwise. They impose ethical standards on barristers in the discharge of their professional duties. Section 34(1) requires Counsel Assisting to be an Australian legal practitioner. The purpose of this is to ensure that such a person is bound by the ethical standards imposed on such practitioners. It is not concerned with power, or the limits upon its exercise.

7. [291]

   Third, there is no basis for finding that Watson knew, or turned his mind to the possibility that he was exercising statutory power, let alone that he was exceeding it.

8. [292]

   Fourth, the plaintiffs have not established that they suffered any stress, humiliation or embarrassment beyond that which they would have suffered anyway (assuming they suffered any at all). Any reputational damage as a consequence of the findings of corrupt conduct and adverse credit findings would have happened anyway. They have also not established that they were not lying in their evidence relating to the maps.

9. [293]

   Finally, Watson has the benefit of the immunity provided for in s 109(3).

10. [294]

    That section provides that an Australian legal practitioner assisting the Commission or representing a person before the Commission has the same protection and immunity as a barrister (within the meaning of the Legal Profession Uniform Law (NSW)) has in appearing for a party in proceedings in the Supreme Court.

11. [295]

    Recently, the High Court (by majority) in Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1, made it clear that the advocate’s immunity does not extend to acts or advice of the advocate which do not move litigation towards determination by a court.

12. [296]

    Relying on this, it was put on behalf of the plaintiffs that Watson is not protected by the immunity because it is only available in relation to work that contributes to a judicial determination of litigation, and there is no such determination in an ICAC inquiry. It was put that Watson would not have immunity even if the inquiry were before this Court.

13. [297]

    In my opinion, Watson has the benefit of the immunity, notwithstanding that there is no judicial determination of litigation in an ICAC inquiry. The effect of s 109(3) is to confer upon a legal practitioner in relation to assisting ICAC, or representing a person before it, the full extent of the traditional immunity which a barrister would have in the Supreme Court, on the footing that the barrister had it there. The logical consequence of the plaintiffs’ submission is that the legislature intended a barrister before ICAC only to have immunity where there is judicial determination. Given that there is never judicial determination before ICAC, s 109(3) would then have no work to do. This cannot have been the intention of the legislature.

Lockley and Grainger

1. [298]

   The plaintiffs put the claim of misfeasance against Lockley and Grainger as follows:

   1. (1)

      in executing the search warrant each was acting as a public officer;

   2. (2)

      the Advice and the Heads of Agreement were not covered by the terms of the search warrant and it did not authorise the videotaping of those documents as was done;

   3. (3)

      both Lockley and Grainger knew these facts;

   4. (4)

      they nevertheless instructed Curd to record the documents and in so doing, they knew, or were recklessly indifferent to the fact that they were exceeding their powers under the search warrant;

   5. (5)

      they knew that the videotaping would cause injury, or was likely to cause injury to the plaintiffs, or were recklessly indifferent as to whether it would do so; and

   6. (6)

      their conduct caused damage to the plaintiffs because it was directly linked to the issue of the Summons to Lands Legal, which in turn was used in the cross-examination of Moses Obeid on 1 February 2013, which but for the videoing, would not have happened, and further, because the documents videoed were confidential to the plaintiffs.

2. [299]

   Although the plaintiffs, presumably for convenience, group Lockley and Grainger together, they are not sued as joint tortfeasors: see Fish & Fish Ltd v Sea Shepherd UK [2015] AC 1229, where the requirements for such liability are set out.

3. [300]

   The claims against Lockley and Grainger have the common factual matrix of the execution of the search warrant, but the plaintiffs must establish each element of the cause of action of misfeasance against each separately. No claim in trespass is brought. Trespass is a wrong to possession: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 224.

4. [301]

   Inherent in the plaintiffs’ claim is the assertion that Lockley and Grainger each exercised power by causing the documents to be videoed (by Curd). Lockley and Grainger put in issue both that they did this as a matter of fact, and that what they did was the exercise of power in any event, because Curd was an investigator whose role, as described in his position description, was to investigate suspicions or allegations of corruption, prepare reports on investigations and to prepare briefs of evidence of criminal or disciplinary offences, and it is not suggested that Curd was subordinate to Lockley or Grainger or that they had authority to require him, and that he had any obligation, to follow an instruction to video the documents.

5. [302]

   In considering this claim, it is necessary first to consider what it is that they did. This is revealed on the video, taken by Curd.

6. [303]

   Grainger and Lockley are in the vicinity of a safe. A third (unidentified) person arrives and opens the safe. There is a discussion with Grainger and Lockley about cash in the safe. The cash is collected and handed to the person. Grainger asks him whether the documents in the safe are also his, and he answers, “no – it’s a shared safe”. He conveys that there is “nothing else valuable in that safe” except for “footy tickets” and then leaves. Grainger and Lockley are in the alcove containing the safe.

7. [304]

   Lockley’s relevant participation in the enterprise was:

   1. (1)

      asking to what the Advice related;

   2. (2)

      taking the Advice from Grainger and passing the Advice to Curd after Grainger requested Curd to video it;

   3. (3)

      observing that the Advice “doesn’t relate though, does it?”;

   4. (4)

      taking the Heads of Agreement from Grainger and passing it to Curd;

   5. (5)

      asking Grainger what Grainger wanted to do with it; and

   6. (6)

      telling Curd to video it after Grainger told Lockley to video it.

8. [305]

   Grainger’s relevant participation in the enterprise was:

   1. (1)

      examining the bundle of documents and identifying the Advice;

   2. (2)

      responding to Lockley’s question as to what the Advice related;

   3. (3)

      requesting Curd to video it and handing it to Lockley to pass to Curd;

   4. (4)

      handing the Heads of Agreement to Lockley; and

   5. (5)

      telling Lockley that he wanted it to be videoed.

9. [306]

   Both Lockley and Grainger were appointed under s 104 as members of staff of the Commission.

10. [307]

    Lockley was a senior financial investigator whose role, as described in his position description, was to investigate suspicions or allegations of corruption with an emphasis on financial aspects, preparing reports, assisting in preparing briefs of evidence for criminal or disciplinary offences and providing high level financial investigative advice. He reported to Fox as Chief Investigator and no-one reported to him.

11. [308]

    Grainger was a senior investigator whose role, as described in his position description, was to support the Chief Investigator by providing advice and leading, managing and mentoring investigation staff to ensure allegations of corrupt conduct are thoroughly investigated and where appropriate, to coordinate and prepare briefs for public inquiries to be conducted by the Commission and coordinate and prepare criminal briefs for referral to the DPP for consideration of criminal public prosecutions. He too reported to Fox.

12. [309]

    Each was a person named in the warrant as contemplated in s 41(1) and their authority to enter, search and seize stemmed from that ad hoc naming, not from any position which they occupied with the Commission.

13. [310]

    It may be that in executing the search warrant, they were exercising a power in the public interest, but it was not a power which they had from any official position to which continuing functions or duties were assigned. The hallmarks of public office are absent. It follows that this claim fails at the first hurdle.

14. [311]

    Although it is not necessary to consider the further elements of this claim, it is appropriate in the circumstances of this case to do so.

15. [312]

    The search warrant is, relevantly, in the following terms:

16. [313]

    Neither the Advice nor the Heads of Agreement is covered by the warrant. Neither document refers to any of the entities identified in paragraph 2 of the warrant or the subject matter of the allegations or complaints described in the warrant. It is obvious that both concern endeavours unconnected with those to which the search warrant was directed.

17. [314]

    On behalf of Lockley, it was unconvincingly put that the Heads of Agreement could conceivably relate to Locaway because the purchaser is an Obeid Family Trust and was executed on behalf of an unnamed ‘Obeid Entity’, which could be Locaway. However, this connection was not established as a fact and there is no reason to think that this notional possibility crossed the mind of Lockley or Grainger.

18. [315]

    The plaintiffs put that the videotaping of the documents was a seizure. Although the information which was videoed was in a sense seized, the physical documents themselves were not: cf. Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384 at 407 [91].

19. [316]

    Copying, by videoing or otherwise, is permissible if it is reasonably incidental to, and done for the purpose of the exercise of the powers conferred by the warrant: Slaveski v Victoria [2010] VSC 441 at [192]. That is not this case.

20. [317]

    The documents were manifestly not covered by the warrant. The manner in which they were videoed, that is to capture the full detail of the documents, together with the fact that they were not seized, is inimical to the suggestion that they were videoed for the purpose of assessing whether they were covered. I find that both Lockley and Grainger appreciated that the documents were not covered.

21. [318]

    On behalf of Grainger, it was put that seizure (and therefore videoing of the documents) was permissible under s 47(1), as documents which Grainger believed on reasonable grounds to be evidence that would be admissible in criminal proceedings or which may have been concealed, lost, mutilated, destroyed or used in committing an offence. I reject this submission. There is no evidence of any such belief on the part of Grainger. Grainger did not give evidence. No applicable indictable offence was identified.

22. [319]

    I find that the videoing of the documents was beyond the scope of the warrant.

23. [320]

    It is immaterial that neither Lockley nor Grainger was in a position to issue a binding instruction to Curd to video, and that Curd was not obliged to do what either of them said. It can safely be inferred that they knew and expected Curd to do what they expressly or by implication asked him to do.

24. [321]

    The warrant, read with s 41, empowered Lockley and Grainger to enter the premises, search for the documents connected with the matter being investigated and seize them.

25. [322]

    The exercise of power was not the giving of an unenforceable instruction to Curd, it was the doing of acts that caused Curd to video.

26. [323]

    Each of Lockley and Grainger separately and directly by their own acts caused something in excess of their power under the warrant to be done, namely the videoing as it occurred.

27. [324]

    I find that Lockley and Grainger acted in excess of their power.

28. [325]

    I find that Lockley and Grainger knew that they were acting in excess of power. I find that they knew that the documents were not covered by the warrant and that they held no belief that the videoing was necessary to make a determination. This is because:

    1. (1)

       Lockley and Grainger were both experienced investigators;

    2. (2)

       a cursory glance at the documents makes it clear that they were not covered, and this must have been obvious to them;

    3. (3)

       with regard to the Advice, Lockley asked the question “relating to?” and Grainger referred to “a company that one of them is…private partnership by Australian Water Holdings”, and observed “interesting, why would they have this?”. Lockley comments that “it doesn’t relate though, does it?”. This conversation establishes that they understood that the Advice “did not relate” (that is, that it was outside of the search warrant). They then moved on to the Heads of Agreement, which on its face, concerns the same Australian Water Holdings; and

    4. (4)

       if they had considered that the documents may (or did) fall within the search warrant, there is no reason why they would not have seized them. Instead, not only did they video them, but they videoed their entire contents.

29. [326]

    Added to this, is the consideration that only they could give direct contrary evidence as to the lack of such knowledge, but neither gave evidence.

30. [327]

    No reason was given for Lockley not entering the witness box. It may safely be inferred that his evidence would not have assisted him: Jones v Dunkel (1959) 101 CLR 298.

31. [328]

    It was put on behalf of Grainger that no such inference should be drawn because it was reasonable for him not to give evidence, in light of his present state of health.

32. [329]

    In early 2016, Grainger suffered an intracerebral hemorrhage. He underwent surgery on 30 March 2016. He was in hospital following surgery for about eight days and was absent from work until 23 May 2016. Thereafter, on medical advice, he returned to work on a part-time basis of two days per week pending further medical assessment. He has been placed on restricted duties at work and is endeavouring to minimise stress. He apparently becomes fatigued towards the end of the day and there is deterioration in his speech and general presentation during the work day. He has hypertension.

33. [330]

    Grainger and the plaintiffs adduced medical evidence in the form of written reports from medical practitioners.

34. [331]

    Dr Mark Dexter, a neurosurgeon called by Grainger, reported that any prolonged period of stress may extend his recovery period and lead to a deterioration in his condition, and his issues regarding cognitive fatigue may be more obvious in the short term. Dr Dexter opined that:

35. [332]

    Professor Matthew Kiernan, a consultant neurologist and neuropsychologist, also called by Grainger, reported on the potential impact that providing a statement or giving evidence in court is likely to have on Grainger’s recovery and/or his current condition. He opined as follows:

36. [333]

    Professor Kiernan identified a number of risk factors which, if Grainger were to be requested to present evidence in court, would significantly increase Grainger’s risk of a further brain hemorrhage.

37. [334]

    Dr Ross Mellick, a consultant neurologist called by the plaintiffs, opined that he regarded Grainger as fit to give evidence, that there was no indication of any problem with regard to his cognition, nor his ability to marshal his thoughts and to express them. He opined that the mild hesitancy, which can be described as apraxia, presents a minimal barrier to conversation. He noted that Grainger is on appropriate medication for stress and hypertension, and that his current dose is small, and so if necessary, a small increment could be readily provided by his general practitioner.

38. [335]

    The parties choose not to cross-examine the medical practitioners, leaving the Court in the position of having to do its best on the written material. It seems to me that the views of the respective doctors can be reconciled. Grainger is fit to give evidence, but if he were cross-examined in a way such as to significantly increase his level of stress, he is at risk of a further hemorrhage. Grainger’s knowledge is a matter of critical importance. Steps could have been taken to ensure that any stress he suffered was reduced (say by video link evidence) and strictly controlling cross-examination. He could have provided affidavit evidence as to his state of mind, and sought a ruling that he be permitted to read it without having to be cross-examined.

39. [336]

    In the circumstances, I think it would be permissible for the Court to infer that his evidence would not have assisted him, but it is not necessary to do so in this case to be comfortably satisfied in any event, as I am, that he knew he was acting outside the warrant. His knowledge is established anyway. The inference would simply reinforce that finding. He has not proffered any evidence which assists him. There is no reason to draw any explanatory or exculpatory inference in his favour.

40. [337]

    As will be seen below, the plaintiffs have not established that they have suffered any damage at all, let alone any attributable to, or caused by the videotaping complained of.

41. [338]

    It is difficult to contemplate what damage Lockley and Grainger could have believed or thought would be caused to these plaintiffs by the videotaping. For the same reason, it is not fairly open to attribute to them recklessness with respect to causing any damage. It is also difficult to see what damage could have reasonably been foreseen.

42. [339]

    The claim of misfeasance fails for this reason as well.

43. [340]

    The plaintiffs apparently articulate the damage they were allegedly caused in two ways.

44. [341]

    First, they say that:

    1. (1)

       the videoed information was directly linked to the issue of the Summons to Lands Legal;

    2. (2)

       the Heads of Agreement returned by Lands Legal was used in the cross-examination of Moses Obeid on 1 February 2013, an event which would not have occurred but for the videotaping; and

    3. (3)

       they were caused stress, humiliation, embarrassment and reputational damage by that cross-examination (presumably by reason of the Sydney Morning Herald article – again on the footing that the article would have been different if the unredacted version had been made available to the newspaper).

45. [342]

    Second, they say that the documents were confidential to them, which confidentiality was impaired by the videoing. Implicit in this contention is that the plaintiffs had some proprietary or possessory interest in them.

46. [343]

    Both of these positions are manifestly untenable.

47. [344]

    As to the first, I have already dealt with the difficulties with the proposition that the plaintiffs suffered damage by the redacted version alone being made available to the newspaper.

48. [345]

    I am prepared to infer that the information garnered from the videotaping was used in the preparation of the Fleeton memorandum, and in turn, the Summons to Lands Legal.

49. [346]

    The Fleeton memorandum records that during the execution of the search warrant a number of Australian Water Holdings documents were located, but not seized. This, it can safely be inferred, is a reference to the Heads of Agreement that was videoed.

50. [347]

    The Summons required the production, amongst others, of all documentation in the care, custody or control of Lands Legal, including but not limited to electronic documents relating to any interest in Australian Water Holdings Pty Ltd held either directly or indirectly by the Obeid Family Trust (or any subsidiary or nominee company), Eddie Obeid Snr, Eddie Obeid Jnr, Paul Obeid, Moses Obeid or Gerard Obeid. The Obeid Family Trust is referred to on the face of the Heads of Agreement.

51. [348]

    I am also prepared to infer, although there is no direct evidence to this effect, that the version of the Heads of Agreement, produced by Lands Legal, was used in cross-examining Moses Obeid. In other words, I am prepared to infer that ICAC had no other source. It did not suggest any particular alternative source.

52. [349]

    The plaintiffs must establish that viewed in a common sense way, the act complained of caused them damage: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

53. [350]

    The chain of causation is asserted to be the following:

    1. (1)

       the information was used by someone else (who made a decision) to prepare a Summons to Lands Legal for documents which produced a version of the Heads of Agreement;

    2. (2)

       the Heads of Agreement were redacted and the redacted portion was, by the Commissioner acting under s 112(1), made the subject of a suppression order;

    3. (3)

       Watson chose to cross-examine, publicly, only on the redacted version;

    4. (4)

       the press consequently reported the cross-examination in a manner that would not have occurred but for the redaction and cross-examination on it; and

    5. (5)

       that manner of reporting placed the plaintiffs in a bad light.

54. [351]

    In my opinion, it cannot sensibly be suggested that the damage alleged finally to have been suffered was caused by the initial act complained of. The initial act is too remote from the ultimate asserted consequence to be viewed as having caused it. There are too many intervening independent acts of others between the two.

55. [352]

    As to the second formulation of their damage, surprisingly (or perhaps not), the plaintiffs have not sought to prove any proprietary or possessory interest in the Advice or the Heads of Agreement.

56. [353]

    Perhaps for good reason, they have not sought to explain the presence of the Advice at the premises in the safe, which is ostensibly a confidential and privileged document produced by the Solicitor General for the Crown Solicitor. They have not sought to establish the identity of the Obeid entity, which is apparently the party to the Heads of Agreement. They have not sought to prove ownership of, or access to the safe.

57. [354]

    The evidence is that it was a shared safe, but there is no evidence of who shared it. There is evidence that other persons and entities occupied space at Birkenhead Point.

58. [355]

    As I have said earlier, each plaintiff bears the onus of establishing each element of his cause of action.

59. [356]

    This being so, although the plaintiffs assert in their written submissions that the Advice and Heads of Agreement were in their possession and confidential to them, they have not established this.

60. [357]

    It follows that they have not established that they have suffered any loss or damage.

61. [358]

    It was put on behalf of Lockley that he has protection from liability under s 109(1) and (5). Given my findings, no question of immunity arises. However, if the plaintiffs had otherwise established liability on Lockley’s behalf, s 109(1) and (5) would not have assisted him because his conduct, in knowingly exceeding his powers under the search warrant, was not in good faith.

62. [359]

    The plaintiffs have failed against all defendants.

63. [360]

    The proceedings must be dismissed and I so order.

64. [361]

    I will hear the parties on costs should this be necessary and on any issues that remain to be determined.

65. [362]

    The exhibits can be returned.