Obeid v Independent Commission Against Corruption

1. [1]

   On 9 July 2015 the Plaintiffs commenced proceedings against the Honourable David Andrew Ipp AO QC and nine other Defendants claiming declarations that the First to Ninth Defendants engaged in misfeasance in public office, declarations that the reports issued by ICAC entitled Operation Indus Report July 2013, Operation Jasper Reports July 2013 and December 2013, Operation Meeka and Cabot Reports June 2014 and Operation Cyrus Report June 2014 were ultra vires, were not made according to law and were a nullity, and an order permanently restraining ICAC from issuing reports in relation to operation Credo which commenced on 17 March 2014 and Operation Spicer which commenced on 28 April 2014 to the extent that such reports concern the Plaintiffs. The Plaintiffs also claimed general damages, aggravated damages, special damages and exemplary damages.

2. [2]

   Defences were filed in August 2015.

3. [3]

   The pleading of the Statement of Claim had a number of difficulties, many of which were highlighted at an application by the Plaintiffs to file an Amended Statement of Claim on 6 November 2015. At the conclusion of the argument the Plaintiffs accepted that the proposed Amended Statement of Claim needed to be further amended to have regard to the criticisms made by the various Defendants concerning its lack of particulars especially where fraud and other serious matters had been alleged, and criticism of other aspects of the pleading.

The decision and the appeal

1. [4]

   On 6 October 2015 the solicitors for the Plaintiffs wrote to the present Commissioner of ICAC enclosing copies of the pleadings, summarising the allegations that had been made in the proceedings at that time (that is, in the original Statement of Claim), noting that the Commissioner had given a Variation of s 112 Directions on 29 July 2015 (a matter to which I will come presently) and saying:

2. [5]

   On 9 October 2015 the Commissioner issued her decision in answer to that request. In its entirety it was in these terms:

3. [6]

   The Plaintiffs now challenge this decision in an application for judicial review. They seek a declaration that the decision was made without or in excess of jurisdiction and is a nullity, in the alternative, that the decision was wrong in law. They also seek orders in the nature of certiorari and mandamus. By an Amended Summons filed 3 December 2015 they seek the following additional relief:

4. [7]

   The grounds upon which judicial review is sought are these:

5. [8]

   It is necessary to say something about the matter referred to in ground 4(d). On 27 July 2015 the Commissioner issued a Variation of s 112 Directions as follows:

6. [9]

   It was not made clear the circumstances in which that decision came about. The Plaintiffs say that they found out about it as a result of a letter they received from Corrs Chambers Westgarth, Mr Ipp’s solicitors, dated 31 August 2015. That letter was tendered. It was a letter that was responding to a request for certain materials by the Plaintiffs’ solicitors. Paragraph 3 made reference to the Variation of s 112 Directions and annexed a copy of it. Otherwise no evidence was given about the circumstances of any request which led to that decision and, in particular, precisely what was sought.

Submissions

1. [10]

   The Plaintiffs’ submissions focused particularly on that part of the Commissioner’s decision where she said that she did “not regard the public interest to be served by the wholesale, indiscriminate release of materials for the purposes of private litigation”. It was that statement which was said to have resulted in jurisdictional error as well as error of law on the face of the record. The Plaintiffs submitted that those errors came about because the Commissioner showed in making that statement that she misunderstood the application and in that way constructively failed to exercise the power given to her under ss 111 and 112 of the Independent Commission Against Corruption Act 1988 (NSW).

2. [11]

   The Plaintiffs submitted that they were denied procedural fairness because of the Commissioner’s misunderstanding of the application resulting in the failure to consider it or consider it properly. The Plaintiffs submitted that the misunderstanding led the Commissioner to ask herself the wrong question. The correct question was whether the disclosure of the material was necessary in the public interest and not whether that was true of the “wholesale, indiscriminate release of materials for the purposes of private litigation”.

3. [12]

   The Plaintiffs submitted that the Commissioner acted unreasonably in making the decision. The Plaintiffs submitted that where the existence of an opinion is a condition of the exercise of a power the opinion is required to be formed reasonably. In two ways, they submitted, the Commissioner acted unreasonably. The first was determining that what they described as the “limited disclosures” sought by the Plaintiff were not reasonably required in the public interest. That is because there is a strong public interest in the non-frustration of the proper administration of justice by the withholding of information relevant to the proceedings. The Plaintiffs pointed to the fact that the decision did not mention the public interest in the proper administration of justice at all. It should be inferred, therefore, that the Commissioner failed to consider them or failed to give them adequate weight.

4. [13]

   Secondly, the decision was said to be unreasonable because it was inconsistent with the Variation decision of July 2015. That application was said to be materially like the applications made by the Plaintiffs. It was unreasonable to disclose the information requested by the Defendants but not that requested by the Plaintiffs.

5. [14]

   The Plaintiffs submitted that if the decision was quashed it ought to be remitted not to the Commissioner but to the Inspector. That is particularly so if the decision is quashed on the basis that it was unreasonable. Concerns about apprehended bias on the Commissioner’s part suggested that the appropriate new decision maker would be the Inspector.

6. [15]

   Written submissions were made by the First and Second Defendants, by the Third Defendant and by the Fourth Defendant. Oral submissions were principally made by Senior Counsel for the First and Second Defendants with some additional oral submissions made on behalf of the Third Defendant. Those submissions can together broadly be summarised as follows. The response of the Commissioner, particularly her use of the phrase focused upon by the Plaintiffs, was appropriate given the application that was made. In any event, the Commissioner’s response had to be read as a whole and that phrase read in context. What was sought by the Plaintiffs was both wholesale and indiscriminate.

7. [16]

   Any decision about what was in the public interest imported a discretionary value judgment, and reliance was placed on what was said by the High Court in O'Sullivan v Farrer (1989) 168 CLR 210 at 216. As the Plaintiffs put in their own submissions, if the request had been granted by the Commissioner “this Court would have control over the documents and information produced”. That would be an abdication of the power and responsibility of the Commissioner and was inconsistent with the Act particularly ss 111 to 113.

8. [17]

   The Commissioner did not misunderstand the application. Her expressed response showed that she understood what was asked for, and that the request was too wide and open-ended. In that way she did not deny procedural fairness. The Commissioner did not ask herself the wrong question. She considered whether the disclosure of the material was necessary in the public interest.

9. [18]

   The decision was not unreasonable because acceding to the application would have had the result that what was to be disclosed would be delegated to this Court when it was the Commissioner’s responsibility under the Act. It was not unreasonable because of the earlier variation decision. There was no material likeness between what was sought even if that can be adequately discerned from the decision itself when there is no evidence of what was sought.

10. [19]

    Finally, as a matter of discretion no relief should be granted because the present circumstances are completely different from the position when the request to the Commissioner was made. The re-pleading of the Statement of Claim, particularly with the removal of any issues concerning all but one of the Operations, means that it is inappropriate for relief to be granted.

The legislation

1. [20]

   It is first necessary to look to those sections of the ICAC Act that deal with secrecy, publication and disclosure.

Consideration

1. [21]

   The secrecy provisions in s 111 first make it an offence for any officer of ICAC including the Commissioner to divulge information acquired by them in the course of the person’s functions under the Act. Secondly, a court cannot require any such person to produce any document or other thing in that court which has come into the person’s possession, custody or control by reason of the exercise of the person’s functions under the Act except for the purposes of a prosecution or disciplinary proceeding that arises from an investigation conducted by ICAC.

2. [22]

   In A v Independent Commission Against Corruption [2014] NSWCA 414; (2014) 88 NSWLR 240 Basten JA (with whom Bathurst CJ and Ward JA agreed) held that s 111(1) applies to persons and not to the Commission itself, but noted that the functions which are restricted or prohibited by s 111 can only be carried out by individuals as officers or agents of the Commission. The distinction made there is not significant for present purposes because the present claim, although naming ICAC as the First Defendant, identifies that the person who made the decision for ICAC was the Second Defendant, the present Commissioner.

3. [23]

   Justice Basten then went on to say:

4. [24]

   The distinction made by Basten JA between a voluntary disclosure to a court and a disclosure that is required by a court in sub-s (3) is relied upon by the Plaintiffs in the present case because it is said to create the possibility that the Defendants to the proceedings may selectively disclose matters and withhold others, with the Court and the Plaintiffs unable to know which matters have been withheld. The Plaintiffs say that that would plainly be apt to mislead the Court and be prejudicial to the proper administration of justice. That matter underscores that the Commissioner’s decision was unreasonable.

Grounds 1, 2 and 3

1. [25]

   These three grounds focus attention on the Commissioner’s characterisation of the Plaintiffs’ request as a request for “the wholesale, indiscriminate release of material for the purposes of private litigation”. As Senior Counsel for the Plaintiffs acknowledged in his oral submissions in reply, this complaint is “the beginning, middle and end of the case”. The Plaintiffs’ maintain that the request requires neither wholesale nor indiscriminate release because the matter will be under the control of the Court through its own processes.

2. [26]

   A matter of some significance for the present matter is a comparison of the provisions in ss 112 and 113 of the ICAC Act. Section 112 gives power to ICAC to direct that material not be published or published only in such manner as ICAC specifies. Further, ICAC is not to give a direction under the section unless satisfied that the direction is necessary or desirable in the public interest. On its face, that test appears to be a little different from the test contained in s 111(4)(c) where a divulgence of information may be made by the direction of the Commissioner or the Inspector if one of those persons certifies that it is necessary to do so in the public interest. It was not suggested by any party that the distinction was relevant in the present case.

3. [27]

   Section 113 deals with criminal proceedings. The effect of sub-sections (1) and (3) is that it is the court that considers whether it is desirable in the interests of justice for evidence which has been given to the Commission and is subject to a s 112 direction to be restricted to be made available.

4. [28]

   The contrast in these sections is significant in the present case.

5. [29]

   As mentioned earlier the test under s 111(4)(c) is that divulgence is necessary in the public interest and the test in s 112 for restricting material is that it is necessary or desirable in the public interest to restrict it. The application by the Plaintiffs referred to both sections.

6. [30]

   In O’Sullivan v Farrer Mason CJ, Brennan, Dawson & Gaudron JJ said (at 216):

7. [31]

   In her decision the Commissioner also, correctly, made reference to both ss 111 and 112. She noted that relief from the obligations imposed by those sections could only be granted upon a determination by her that it was in the public interest to do so. It is clear, therefore, that when making her decision the Commissioner had in mind, in the first instance, the correct test to be employed. The Plaintiff’s complaint, however, is that the Commissioner misunderstood the application being made because she saw it as a request for the “wholesale, indiscriminate release of materials for the purposes of private litigation”.

8. [32]

   The Commissioner then went on to note the Plaintiffs’ assertion that the public interest was that the secrecy provisions in the ICAC Act did not interfere with the proper administration of justice. In that regard, the terms of the application by the Plaintiffs need to be noted.

9. [33]

   There was a general assertion that for the proper determination of the issues in dispute in the main proceedings it was in the public interest that all of the available evidence should be disclosed. Secondly, it was asserted that it should ultimately be a matter for the Supreme Court to determine what information and documents were relevant, discoverable and admissible. It was in those circumstances that the application was made, that (1) whatever documents the Court considered should be discovered and whatever information the Court thought should be provided by way of interrogatories should be made available under s 111(4) because it was in the public interest to do so, and that (2) all of the material in the six Operations identified should be made available. I note that in relation to (2) the application did not suggest that the provision of that material should be subject to the Court’s consideration of what was appropriate, as was provided for in (1).

10. [34]

    It was an entirely correct assessment by the Commissioner to say that a Direction given as the Plaintiffs had sought would be a wholesale, indiscriminate release of materials for the purpose of the litigation in which the Plaintiffs were engaged. What was asked for was a release of all documents and evidence concerning the six named Operations. What was also asked for was whatever information the Court’s processes required. On any view that was asking for a wholesale release of documents and information.

11. [35]

    It was indiscriminate because there was no attempt in either paragraph of the request to seek particular documents or even particular categories of documents. The only limitation put forward was confinement by the Court when the issues had not been finally joined nor categories of documents agreed upon.

12. [36]

    It was entirely apposite of the Commissioner to assert that adopting the approach of the Plaintiffs on the application would lead to a complete subversion of ss 111 and 112 simply by instituting proceedings against the Commission. The way the Plaintiffs put their application transferred responsibility (at least on the application under s 111) to the Court rather than leaving the decision with the Commissioner. In relation to the application under s 112, all documents relating to those Operations were required that might be relevant to the proceedings without even the over-riding control of the Court’s processes.

13. [37]

    A clear distinction is made in Pt 11 of the Act between documents and evidence required for criminal proceedings and material that is otherwise required. For criminal proceedings it is the Court that ultimately has to consider what is desirable in the interests of justice. In other proceedings the decision is that of the Commissioner. What the Plaintiffs were proposing ran directly counter to the proposed legislative provisions because they suggested that it should be the Court that determined the public interest in the main proceedings although they are not criminal proceedings.

14. [38]

    The intent of the legislative scheme is clear. For proceedings other than criminal proceedings, the Commissioner is in the best position to determine what should be made available based on her knowledge of the material obtained by ICAC as part of it processes, and any need for secrecy by reason, perhaps of its ongoing investigations or for some other reason. That matter is of some significance here because the Plaintiffs sought material in relation to two ongoing investigations being Credo and Spicer.

15. [39]

    As in O’Sullivan v Farrer the ICAC Act gives no indication of the matters to be considered when looking at the concept of public interest. It is clear from her reasons that the Commissioner discerned that the terms of the legislation provided an indication that the public interest was closely tied to the need for limited divulgence of information from ICAC’s investigations and that the determination of what was necessary or desirable in the public interest rested with her and not the courts in a case like the present one.

16. [40]

    In my opinion, the Commissioner’s reasons demonstrate that she both correctly identified and correctly applied the test of public interest in ss 111 and 112. The Commissioner responded appropriately to the request made. In that way, it cannot be said that she denied procedural fairness to the Plaintiffs.

Ground 4

1. [41]

   In considering the issue of the reasonableness of the decision, a consideration of both s 111 and 112 required the Commissioner to form an opinion that divulgence of the information was necessary or necessary and desirable in the public interest. In Buck v Bavone (1976) 135 CLR 110 Gibbs J (as his Honour then was) said (at 118):

2. [42]

   The Plaintiffs’ submission on what was said to be the Commissioner’s unreasonable decision referred to the “limited disclosures” sought by the Plaintiffs. I reject the notion that what was sought by the Plaintiffs were limited disclosures. The better characterisation is precisely that made by the Commissioner, that what was sought was a wholesale, indiscriminate release of material.

3. [43]

   It may be accepted that there is a strong public interest in the non-frustration of the proper administration of justice, as the Plaintiffs submitted. However, that was the precise balancing act that the Commissioner was required to perform. As Crennan J observed in Gypsy Jokers Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at [189], the availability and accessibility of all relevant evidence in judicial proceedings is not absolute. The basis of Plaintiffs’ first submission on unreasonableness appeared to be that, because the decision went against the disclosure of the material sought, the Commissioner could not have given weight or adequate weight to the public interest in not frustrating the civil proceedings. That assertion was question begging. The Plaintiffs fail to demonstrate on that basis that the Commissioner’s decision was unreasonable.

4. [44]

   The second basis put forward pointed to the Variation decision of July 2015. It is difficult to see, as the Plaintiffs submit, that the application that led to the Variation decision of July 2015 was materially like the applications made by the Plaintiffs. The letter of request that went to the Commissioner was not in evidence. To the extent that anything can be discerned from exhibit A (the letter from Mr Ipp’s solicitors to the Plaintiffs’ solicitors of 31 August 2015) certain limited and specified items may have been sought from ICAC. Reference is made, for example, to the transcripts of the public hearings as well as the transcript of the compulsory examination of Paul Obeid on a specified date.

5. [45]

   Putting that aside, however, it cannot be concluded that because certain pieces of evidence were supplied in answer to a previous request, a refusal to supply what was sought in the present case results in a finding of unreasonableness in decision making. The decision in the present matter must be judged itself. For the reasons given earlier when considering whether the Commissioner asked herself the right question, her refusal to supply the requested material cannot be considered to be unreasonable.

6. [46]

   A further basis on which it was said the decision was unreasonable was a failure on the part of the Commissioner to have regard to what Basten JA said in A v Independent Commission Against Corruption concerning the availability of voluntary disclosure to a court under s 111(2). However, the factual basis for this submission was never laid. There was no evidence that any officer of the Commission had voluntarily disclosed information to the Court or intended to do. In the absence of any suggestion to the Commissioner in the application to her that she needed to take that matter into account because voluntary disclosure had occurred or might occur, the fact that she did not include that consideration as a reason for refusal cannot mean that her decision was unreasonable.

7. [47]

   This gives rise to a further matter raised by the Plaintiffs concerning the reasons of the Commissioner for refusing the request. The Plaintiffs submitted that if the Commissioner in her decision had articulated the reasons put forward by Senior Counsel for the Commissioner in these proceedings as the justification for her decision the Plaintiffs could have no complaint about the matter. For example, the Commissioner did not say, as her Senior Counsel now has, that it would not be appropriate to delegate her powers to the Court as might be the case if the Plaintiffs’ request was acceded to as asked. However, the Plaintiffs submitted that those were not her reasons as expressed in the decision. This point suggested that error was established because the Commissioner’s reasons were inadequate.

8. [48]

   There are no requirements in ss 111 and 112 for the Commissioner to provide reasons for her decisions. I have already held that in her decision the Commissioner addressed the correct question and answered it by balancing the matter of public interest against the interests of justice and the interests of private individuals. She saw the approach of the Plaintiffs as one that would subvert the provisions of ss 111 and 112. In the absence of a requirement to give reasons, it cannot be said that these reasons are inadequate.

9. [49]

   In any event, I note that in Sherlock v Lloyd [2010] VSCA 122; (2010) 27 VR 434 the Victorian Court of Appeal held at [74] that where an administrative tribunal had no obligation to provide reasons it could not be correct to say that the Tribunal's failure to provide reasons or adequate reasons was of itself an error of law. The Court also held at [42] that s 8(1) of the Administrative Law Act 1978 (Vic), which required the Tribunal to furnish a person with a statement of reasons for its decision if requested to do so, did not mean that the giving of inadequate reasons was intended to be a condition of validity of the decision. In the absence of an obligation to provide reasons, I agree with the Victorian Court of Appeal that inadequate reasons provided at the discretion of the decision making body cannot impugn the validity of the decision itself.

10. [50]

    In Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162 French J suggested (at 178-179) that a statutory duty to provide reasons is not discharged by an ex post facto justification of a decision. However, it is doubtful that his Honour's statement could apply where there is no statutory obligation to give reasons. As Aronson and Groves Judicial Review of Administrative Action (5th Ed, 2013, Thompson Reuters) say at 8.460:

11. [51]

    In my opinion, it has not been demonstrated that the Commissioner’s decision was unreasonable.

The nature of any relief

1. [52]

   Even if I had been of the opinion that the Commissioner’s decision should otherwise have been quashed for one or more of the reasons advanced by the Plaintiffs, I would not in the discretion available when error is found have made an order quashing the decision nor an order for mandamus directing that the application be properly considered according to law. Since the Plaintiffs’ application was made on 6 October 2015 the claims made by the Plaintiffs in the Amended Statement of Claim for which leave has now been given for the filing, have fundamentally changed. An obvious change is the fact that the Plaintiffs no longer pursue matters related to any of the Operations identified in paragraph 2 of the application except Operation Jasper.

2. [53]

   Further, even if it might have been appropriate for the Court ultimately to decide what documents and evidence should be made available by ICAC, the documents that might have been relevant on the basis of the pleadings as of 6 October 2015 will be different from those that would now be relevantly the subject of discovery or interrogatories. Even that cannot be determined at this stage since the pleadings to the Amended Statement of Claim have not closed. What was said in W A Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 567 has some relevance here. Brennan J (with whom Bowen CJ agreed) said there:

3. [54]

   It would, accordingly, be futile for the Commissioner to reconsider the application that was made on 6 October 2015.

4. [55]

   The Plaintiffs suggested that in the circumstances error was demonstrated it would be appropriate to make a declaration to that effect even if prerogative relief was refused. The issue does not arise in the light of my determination.

5. [56]

   The Third Defendant submitted that a further discretionary reason for refusing relief was that the Plaintiffs did not draw the Commissioner’s attention to a ruling of the former Commissioner (the Third Defendant) that refused production of compulsory transcripts in relation to Operation Jasper. The ruling was attached to the Third Defendant’s submissions.

6. [57]

   The submission seems to me to be misconceived. There was no evidence, in the first place, that the Plaintiffs were aware of the ruling. But even if they were, the submission seems to suggest that, as with an ex parte application to the Court, there is some duty of frankness and full disclosure on a person seeking disclosure under either s 111 or s 112. Why that should be was not made clear. Nothing in the Act suggests any such duty on the part of an applicant. The duty appears to be suggested, in any event, not for the benefit of other parties to the litigation in respect of which disclosure is sought (as might be thought to be the case in any ex parte application so that an order would not be unjustly made) but for the benefit of the Commission so that it did not make inconsistent rulings and directions.

7. [58]

   If an application is made to the Commission, it is for the Commissioner to determine the matter on the basis of public interest by a proper consideration of the material and the purpose for which it is sought. In a case, as here, where the Commissioner refused the application in any event and no inconsistent ruling resulted, the submission is even more difficult to understand. The Plaintiffs objected to the tender of the earlier ruling although they accepted that on the basis it was sought to be used it had some relevance. I will, therefore, admit the ruling as evidence in the proceedings but I reject the Third Defendant’s submission based on it.

8. [59]

   Because of the view I have formed about the correctness of the Commissioner’s decision it is not necessary to make other than brief comments about the Plaintiffs’ submission that the matter should not return to the Commissioner for determination but should be determined by the Inspector. The basis for that argument was apprehended bias arising not only from the first substantive paragraph of the Commissioner’s decision but from the mere fact that she has already made a decision contrary to the interests of the Plaintiffs and might not bring an unbiased mind to bear on any further decision making.

9. [60]

   The Plaintiffs are critical of what is contained in the first substantive paragraph of the Commissioner’s response where reference is made to certification under the Legal Profession Uniform Law Application Act 2014 (NSW). That paragraph is said to suggest an inherent bias on the part of the Commissioner which is a relevant consideration if her decision is quashed. That is because it should be regarded as gratuitous.

10. [61]

    What is contained in that paragraph appears to me to be significantly relevant to the Commissioner’s decision under ss 111 and 112. Broad ranging allegations were identified in the Statement of Claim that was annexed to the Plaintiff’s application to the Commissioner. Those allegations would necessarily lead to an inference, in the light of the obligations found in Sch 2 to the Legal Profession Uniform Law Application Act 2014 (NSW), that the Plaintiffs had a considerable amount of material to justify the making of those allegations. That in itself was a relevant consideration when material and evidence held by ICAC was sought to be published to the Plaintiffs under ss 111 and 112.

11. [62]

    Nothing else in the Commissioner’s decision could give rise to any reasonable apprehension of bias on the part of the Commissioner. The request was rejected on grounds which have been upheld. Decision makers are frequently required to re-exercise a power of discretion where error has been demonstrated.

12. [63]

    It is not necessary to determine whether the Inspector has power under s 111(4)(c) to certify in respect of documents in the possession or control of the Commissioner or officers of the Commission. Even if he has that power the Plaintiffs’ request could not be dealt with by the Inspector because the power in s 112 is confined to the Commission. None of the powers of the Inspector in s 57C of the Act concern directions that are given under s 112. Section 57C(c) is concerned with the supply of information and production of documents to the Inspector and not to third parties in relation to directions under s 112.

Conclusion

1. [64]

   Accordingly, I make the following orders:

   1. (1)

      (1) Summons dismissed

   2. (2)

      (2) The Plaintiffs are to pay the Defendants’ costs.