NSWNSWCA

D'Amore v Independent Commission Against Corruption

[2013] NSWCA 187

Court of Appeal (NSW)|2013-06-21|Before: Bathurst CJ, Beazley P, Basten JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2013-06-21

Before

Bathurst CJ, Beazley P, Basten JA

Catchwords

170 CLR 1 Australian Broadcasting Tribunal v Bond [1990] HCA 33
170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 5 NSWLR 139 Balog v Independent Commission Against Corruption [1990] HCA 28
60 CLR 336 Buck v Bavone [1976] HCA 24
135 CLR 110 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 Craig v South Australia [1995] HCA 58

Source

Original judgment source is linked above.

Catchwords

170 CLR 1 Australian Broadcasting Tribunal v Bond [1990] HCA 33170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 5 NSWLR 139 Balog v Independent Commission Against Corruption [1990] HCA 2860 CLR 336 Buck v Bavone [1976] HCA 24135 CLR 110 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 Craig v South Australia [1995] HCA 58184 CLR 163 Dranichinikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26197 ALR 389 Fox v Percy [2003] HCA 22241 CLR 390 Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340141 FCR 346 M70/2011 v Minister for Immigration and CitizenshipMinister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30206 CLR 323 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40162 CLR 24 Minister for Immigration and Citizenship v Li [2013] HCA 1887 ALJR 618 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48243 CLR 164 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21

Judgment (29 paragraphs)

[1]

Background facts and ICAC's findings 22The appellant was a member of the New South Wales Legislative Assembly from March 2003 until March 2011. At the time of the conduct subject of the ICAC investigation, Government and Opposition Members of the Legislative Assembly were entitled to two full time electorate officers. 23In July 2006, the Parliamentary Remuneration Tribunal determined that sitting members were entitled to payment for a temporary officer in the member's electorate office on sitting days when a member brought one member of staff from the electorate offices to Parliament House. This entitlement became known as the "Sitting Day Relief Entitlement". 24Following the introduction of the sitting day relief entitlement scheme, the appellant engaged two temporary staff officers, Ms Harbilas and Ms La Manna, who worked at different times for the appellant at Parliament House. This arrangement was not in accordance with the "Sitting Day Relief Entitlement". The entitlement was only payable where, on a sitting day, the member deployed a permanent electorate staff member in Parliament House and engaged a temporary staff officer to work at a member's electorate office. 25The evidence before ICAC was that, in respect of the days that Ms Harbilas and Ms La Manna worked at Parliament House, each completed a pro forma "SITTING DAY RELIEF - Claim and Payment Form" and submitted the forms to the appellant for her signature. Ms Harbilas filled in two forms relating to six sitting days, three in October and three in November 2006. Ms La Manna filled in three forms in respect of 11 days in June 2007. 26In each case, the forms stated that the name of the electorate officer working at Parliament House was David Nicoletti. That was incorrect. On the dates specified on the forms, Mr Nicoletti, who was a permanent staff member, worked in the appellant's electorate office and Ms Harbilas or Ms La Manna worked at Parliament House. 27The appellant had been aware that a submission had been made to the Tribunal for additional staffing and had personally wished to obtain additional staffing on sitting days. In her evidence before ICAC, the appellant accepted that she had a responsibility to acquaint herself with restrictions applying to members' entitlements. She had also accepted in her cross-examination before ICAC that "she may have" read the Determination. However, quite apart from this qualified response, ICAC concluded, from email communications to the appellant from the Financial Controller of the Legislative Assembly and the Manager of Employee and Corporate Services respectively, that the appellant had been informed of the determination of the Parliamentary Remuneration Tribunal and of the 'draft arrangements' in relation to sitting day entitlements. 28ICAC was satisfied, having regard to a telephone conversation the appellant had with the Manager of Employee and Corporate Services, three days after receipt of the emails from her, that the appellant was aware of the emails. It should be noted that the 'draft' status of the arrangements referred to in these email communications related only to their implementation prior to the Speaker's formal approval of the administrative arrangements necessary to give effect to the Determination. 29Ms Harbilas gave evidence that on the first occasion that she filled in a sitting day relief form, she had been instructed by the appellant to complete the form by inserting Mr Nicoletti's name on the form instead of her own. In particular, Ms Harbilas gave evidence of the "gist" of the conversation in which that instruction had been given. ICAC found that the "gist" of the conversation was consistent with the appellant having an understanding of the nature and terms of the sitting day relief entitlement. The detail of this conversation is important and is discussed below. 30Ms La Manna denied that the appellant had given her any instruction as to how to fill in the form. She said that she had copied an earlier form that had Mr Nicoletti's name on it. Further reference to Ms La Manna's evidence is also made below. 31The appellant's evidence was that she could not recall giving any such instructions to either Ms Harbilas or Ms La Manna. ICAC did not accept that the appellant's evidence was reliable.

[2]

ICAC's finding that the appellant knew the terms of the sitting day relief entitlements 32ICAC concluded that the appellant knew that the entitlement to sitting day relief depended upon the electorate officer working at Parliament House and the relief officer working in the electorate office, having regard to the following matters: (i) Email dated 21 July 2006, from Mr McGill, Financial Controller of Legislative Assembly; (ii) Memorandum dated 18 August 2006, from Ms Schofield, Manager, Corporate Services, Parliament House; (iii) Telephone call from appellant to Ms Schofield on 21 August 2006; (iv) The appellant's interest and experience in industrial matters; (v) The evidence of Mr Nicoletti, the appellant's electorate officer; (vi) The appellant's signature on the form; and (vii) The evidence of Ms Harbilas. 33A brief reference to each of these matters follow. 34Mr McGill's email attached the Tribunal's 2006 Report and Determination which contained the condition relating to sitting day relief entitlement that is the subject of the allegations in this matter. The email was opened on the appellant's computer approximately 30 minutes after it was sent. The appellant also received a hard copy of the Determination. The appellant initially said she had not read the Determination and advanced reasons for her failure to do so, namely that she was busy at that time, she was not following the issue of additional staffing closely, that she may not have occurred to her to do so at the time and she relied upon a ledger sent to her at the commencement of each financial year setting out the allowances to which she was entitled. Apart from this summary, ICAC did not deal in any more detail with this explanation. 35ICAC also noted that the appellant later said she may have read the Determination and, if she had, she would have appreciated the conditions governing the engagement of sitting day relief staff. It is convenient at this point to also note that the appellant advanced an argument before ICAC that the Sitting Day Relief Determination permitted relief staff to work in Parliament House. ICAC rejected this construction of the Determination and found that the appellant knew that the Determination required that the relief staff work at the electorate office. 36Ms Schofield's evidence was that on 18 August 2006, she had emailed a copy of the draft of the Legislative Assembly's Policy and administrative practices relating to sitting day relief entitlements to all members of Parliament, including the appellant. The evidence established that the email to the appellant was opened on 19 August, a day the appellant was not in her electorate office. The appellant's staff members denied that they had opened the email. The appellant said that had she opened the email by using her Blackberry, which was linked to her email and which she used on 19 August, she would not have opened the attached memorandum. 37Ms Schofield also gave evidence of a telephone call from the appellant on 21 August 2006, of which she made a contemporaneous note. The note referred to a discussion about computers. However, Ms Schofield gave unchallenged evidence that the discussion had arisen in the "context of the sitting day relief entitlement". The appellant agreed that this was the context of the conversation, although somewhat paradoxically, she did not recall speaking to Ms Schofield. On the same day, Ms Schofield sent the following email to Ms Schofield's staff: "We have had representations now from two members regarding computer facilities at Parliament House next week for the electorate officer who will work at Parliament House on sitting days. Two members had made enquiries, specifically that they are willing to buy additional computers from their LSA if this is Approved by the Legislative Assembly. Generally the representations are that members will want these staff to have computer access and network access to allow them to work at Parliament House." 38Ms Schofield said that the appellant was one of the two members referred to in the email. In discussing this evidence, ICAC also referred to the draft policy and administrative arrangements that had been emailed to Ms D'Amore on 18 August relating to computer equipment at Parliament House and which stated that the Legislative Assembly had no funding for additional computer equipment in the short term. 39ICAC considered the alternative explanation given by the appellant for her conversation with Ms Schofield on 21 August, but did not accept that explanation. It gave reasons for so finding, including that Ms Schofield's file note was consistent with the appellant having read the draft policy and administrative arrangements relating to computer equipment. 40ICAC also rejected the appellant's evidence of not having read the terms of the Determination and her explanations for that. In doing so, one of the matters it relied upon was that the appellant had both an interest and experience in industrial matters and was familiar with industrial awards. It was also relevant to ICAC's rejection of her evidence on this point that the appellant was aware that submissions had been made to the Tribunal for additional staffing and was herself keen to obtain an additional staff member on sitting days. In regard to the latter point, Mr Nicoletti gave evidence that the appellant wanted an additional staff member at the electorate office on sitting days and the possibility of the sitting day relief entitlement to enable her to do so was of some importance to the appellant and to the staff officers who worked at Parliament House. 41ICAC also relied upon the fact that the appellant signed the forms and on Ms Harbilas' evidence that the appellant instructed her to put Mr Nicoletti's name on the form. As to the appellant having signed the forms, ICAC considered that it was unlikely that a Member of Parliament would not notice the details set out on the sitting day relief forms that were presented to the appellant for her signature. 42There was other evidence of the appellant of which ICAC was unpersuaded. In addition, ICAC made a general credit finding that the appellant was at times evasive and unresponsive in her evidence, including in critical respects. ICAC's overall assessment of the appellant's credit was that she "did not impress as a reliable witness". 43As Ms Harbilas' evidence was the subject of one of the central attacks that the appellant made in seeking to establish jurisdictional error, it is considered in more detail below.

[3]

ICAC's finding of corrupt conduct 44ICAC's principal findings in respect of the forms completed by Ms Harbilas were as follows: "1. Ms D'Amore instructed Ms Harbilas to falsely represent on the sitting day relief claim form for the period 24 to 26 October 2006 that Mr Nicoletti had worked at Parliament House. 2. Prior to giving this instruction, Ms D'Amore knew that Ms Harbilas' entitlement to be paid sitting day relief depended on her working at the electorate office when an electorate officer worked at Parliament House on sitting days. 3. As a result of the instruction given to her by Ms D'Amore, Ms Harbilas falsely represented on the first form that Mr Nicoletti had worked at Parliament House and that she had worked at the electorate office, and made the same false representation on the second form for the period 14 to 16 November 2006, in accordance with the earlier instruction she received from Ms D'Amore. 4. On 26 October 2006 and 16 November 2006, Ms D'Amore signed the claim forms completed by Ms Harbilas, knowing that they contained false representations about the location of Mr Nicoletti and Ms Harbilas. 5. Ms Harbilas submitted the claim forms to Parliament for approval, knowing that they contained false representations about her location and Mr Nicoletti's on the sitting days claimed. 6. Ms D'Amore engaged in the conduct described in findings of fact (1) and (4), and Ms Harbilas engaged in the conduct described in findings of fact (3) and (5), for the purpose of causing parliamentary officers to falsely believe that the conditions of the entitlement had been met, when they knew that they had not. 7. Ms D'Amore and Ms Harbilas caused Parliament to make payments of sitting day relief to Ms Harbilas on the strength of the misrepresentations contained in both claim forms." 45ICAC found that the appellant's conduct in instructing Ms Harbilas to make the false representation on the claim form for the period 24 to 26 October 2006, that Mr Nicoletti had worked at Parliament House on the sitting days claimed, was corrupt in that she signed the form knowing it claimed a false representation as to where Mr Nicoletti and Ms Harbilas were located on the claimed days. ICAC made the same finding in respect of the period 14 to 16 November 2006. 46ICAC found that this conduct fell within s 8(1)(a), s 8(1)(b), s 8(1)(c), s 8(2)(a) and s 8(2)(e). ICAC also found that the appellant's conduct fell within s 9(1)(a), s 9(1)(d), s 9(4) and s 9(5). 47ICAC recognised that there was a fundamental difference between the evidence tending to establish that Ms D'Amore instructed Ms Harbilas to falsify the first claim form and the evidence tending to establish that Ms D'Amore instructed or authorised Ms La Manna to do likewise in respect of the June 2007 forms. ICAC noted that Ms Harbilas' evidence directly implicated Ms D'Amore, whilst Ms La Manna denied that the appellant had given her any such instruction. Nonetheless, ICAC was satisfied, "as a matter of probable inference", that Ms D'Amore had given the same instruction to Ms La Manna, namely, to write Mr Nicoletti's name on the June 2007 claim forms. ICAC found it was satisfied that: "1. Ms D'Amore instructed or authorised Ms La Manna to falsely represent on the three June 2007 sitting day relief claim forms that Mr Nicoletti had worked at Parliament House. 2. Prior to giving this instruction or authority, Ms D'Amore knew that Ms La Manna's entitlement to be paid sitting day relief depended on her working at the electorate office on sitting days, while a permanent electorate officer worked at Parliament House. 3. As a result of this instruction or authority, Ms La Manna falsely represented on each of the three June 2007 claim forms that Mr Nicoletti had worked at Parliament House and that she had worked at the electorate office. 4. Ms La Manna submitted the claim forms to Parliament for approval knowing that they contained false representations about her location and the location of Mr Nicoletti. 5. On 5, 19 and 22 June 2007, Ms D'Amore signed the three claim forms completed by Ms La Manna, knowing that they contained false representations about the location of Mr Nicoletti and Ms La Manna on the sitting days claimed. 6. Ms D'Amore engaged in the conduct described in findings of fact (1) and (5), and Ms La Manna engaged in the conduct described in findings of fact (3) and (4), for the purpose of causing parliamentary officers to believe that the conditions of the entitlement had been met, when they knew that they had not. 7. Ms D'Amore and Ms La Manna caused Parliament to make payments of sitting day relief to Ms La Manna on the strength of the misrepresentations contained in the claim forms." 48On the basis of these findings, ICAC concluded that the appellant's conduct relating to Ms La Manna also fell within s 8(1)(a), s 8(1)(b), s 8(1)(c), s 8(2)(a) and s 8(2)(e). ICAC also found that the appellant's conduct fell within s 9(1)(a), s 9(1)(d), s 9(4) and s 9(5). 49It is important to note that ICAC's finding of corrupt conduct included a finding that, to the appellant's knowledge and understanding, the information on the forms that she signed was false.

[4]

Reasons of the trial judge 50The appellant argued before the primary judge that ICAC acted without jurisdiction by making its findings for which there was no evidence, or no rationally probative evidence. The primary judge dismissed the appellant's claim that ICAC's finding of "corrupt conduct" was infected by jurisdictional error. 51The primary judge held, at [75], that ICAC's power to make findings under s 9(5) and s 13(3A) of the Act was conditioned upon the formation of a state of satisfaction that the conduct of the person under investigation constituted an offence. His Honour held that the existence of that state of satisfaction was a jurisdictional fact: see Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611 and M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 85 ALJR 891. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] FCA 30; 77 ALJR 1165 at [54]. The appellant accepted that the primary judge's approach in this regard was correct. The respondent did not contend to the contrary. 52His Honour, at [74], observed that the factual criteria in s 13(3A) and s 9(5) involved a "complex of elements" comprising: fact finding in assessing what the person did; legal analysis in determining what law was breached by that conduct; and an evaluative task in determing whether the facts as found satisfied the elements of a criminal offence, or constituted a breach of an identified law. His Honour commented that reasonable minds might reach different conclusions on these matters, particularly in respect of the evaluative tasks. His Honour had earlier observed, at [69], that a jurisdictional fact involving a state of mind will often involve an element of "evaluative judgment". 53His Honour identified, at [75], that the jurisdictional facts created by s 13(3A) and s 9(5) would be found to exist where ICAC formed, in good faith, an evaluative judgment that the person subject of the investigation had committed an offence or a breach of an identified law. His Honour continued that ICAC would fail to have the requisite evaluative state of satisfaction if it identified a wrong issue, asked a wrong question, ignored relevant material, or relied on irrelevant material in a way that affected the exercise of power: see M70/2011 v Minister for Immigration and Citizenship; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323. His Honour noted at [76], that the necessary state of satisfaction required by the legislation could not be formed if there was no evidence to support it: R v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co Ld [1953] HCA 22; 88 CLR 100 at 118, 120. 54His Honour concluded, at [88], that ICAC's satisfaction of the appellant's guilt was not based on "irrational or illogical reasoning". Rather: "[ICAC] inferred from the circumstantial evidence, considered as a whole, that [the appellant] knew of the conditions of the sitting day relief entitlement when she signed the claim forms and instructed her staff in how the forms ought to be completed. The drawing of inferences from circumstantial evidence is a logical and familiar method of reasoning in forensic contexts ... [ICAC] positively satisfied itself of [the appellant's] guilty knowledge on the basis of the claim forms themselves, the emails relating to sitting day relief that were sent to [the appellant] and accessed from her account, [the appellant's] knowledge of and interest in industrial relations matters, and the statements [the appellant] made in her phone call to Ms Schofield. There was certainly a 'logical connection' between these aspects of the evidence and the conclusions [ICAC] drew from them: SZMDS at [135] (Crennan and Bell JJ)." (citations omitted) 55In her arguments to the primary judge, the appellant had contended that ICAC had failed to take into account certain relevant considerations, namely the various "distractions" the appellant had at the time, particularly given the busy time she was having when she received the email of 21 July 2006. In attacking the determination, the appellant had contended that ICAC had acted irrationally and inverted the onus of proof in that it had assumed the appellant was guilty and then put her to proof of the contrary. She also argued that Ms Harbilas' evidence relating to "the other EO2" may have given the appellant the mistaken impression as to what information was required on the forms. The appellant contended that, on that basis, her instruction to Ms Harbilas was due to a misunderstanding and was not fraudulent. 56The trial judge rejected each of these contentions. His Honour stated, at [90], that there was no force in the appellant's first submission. His Honour correctly noted that "simple advertence" was not sufficient to constitute genuine consideration of relevant matters: see Weal v Bathurst City Council [2000] NSWCA 88 at [13], per Mason P. His Honour observed, at [9], that ICAC's expressed reasons may have dealt with this aspect of the evidence inadequately. However, that was not sufficient to establish error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 because it was clear from the Report as a whole, and ICAC's findings as to the appellant's credit, that ICAC had considered the appellant's explanation, but had rejected it. 57His Honour, at [91], rejected the second submission that ICAC had inverted the onus of proof. His Honour found that ICAC had correctly considered the claim forms and other evidence and formed the view that the appellant had a case to answer, but did not commence the inquiry with a preconceived view that the appellant was guilty of the offence of misconduct in public office. Rather, ICAC had commenced the inquiry on the basis that there was a case to answer and that by the time the appellant gave her evidence, the 'evidential onus' had shifted to her. His Honour considered that this was neither unreasonable nor irrational, given ICAC's consideration of the circumstantial evidence. 58At [92], his Honour accepted that there was some substance in the third argument that the statements Ms Harbilas made to the appellant may have given the appellant the mistaken impression that the claim forms were asking for the name of the person employed at the level of Electorate Officer Grade 2 (EO2), rather than the name of the electorate officer present at Parliament House on the sitting days for which the allowance was claimed. The relevance of this was that Mr Nicoletti, who was the permanent officer who, in fact, worked at the electorate officer on the days in question, was employed at that level. If the appellant had understood that the forms required the name of the officer on her permanent staff employed at that level, her instruction to Ms Harbilas may have been based upon a misunderstanding. 59His Honour, at [92], accepted that this aspect of the evidence, was relevant to the extent that is supported an inference that the appellant misunderstood the requirements of the form. However, his Honour considered that, even on the assumption that evidence was a mandatory relevant consideration, the absence of any reference to it by ICAC in its report was not a failure to consider a relevant matter of an order that could have materially affected the outcome: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [15], [23]. 60The primary judge, at [92], identified three matters that led him to this conclusion, none of which relied upon Ms Harbilas' evidence. First, ICAC had drawn an adverse inference from the claim forms themselves. Secondly, the appellant had an interest in having an additional staff member for sitting days. Thirdly, the terms of the appellant's telephone conversation with Ms Schofield was evidence that she had understood the terms of the sitting day relief entitlement. Further, any "innocent explanation" for the appellant making the claims was not consistent with the appellant's evidence that she had never had a conversation with Ms Harbilas as to whose name should be inserted on the form. His Honour therefore concluded, on the assumption that ICAC had overlooked the statements made by Ms Harbilas that may have given the appellant a mistaken understanding as to what information was required to be filled in on the form, that the appellant had not been deprived of the possibility of a successful outcome: Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346, at [64], per Sackville J. 61The next issue considered by his Honour was whether there was any illogicality in ICAC relying upon Ms Schofield's email of 19 September 2007 to support an inference that the appellant was guilty of the offence of misconduct in public office. The argument in that regard had been directed to the date of the email, some 15 months after the initial alleged offending conduct. However, his Honour accepted that ICAC had only relied upon this material to the extent it reflected upon the appellant's credit. His Honour concluded, therefore, that ICAC had not drawn an illogical inference that the contents of that email were relevant to determining whether, as at the time the appellant signed the forms, she knew the requirements of the sitting day relief entitlement. 62The primary judge concluded, at [95], that ICAC's findings under s 13(3A) and s 9(5) were not irrational or illogical. It followed, in his Honour's view, that ICAC's findings as to the relevant jurisdictional fact were based on rationally probative evidence: see at [96]. This meant that that the appellant's challenge to the decision on the no evidence ground also failed. His Honour, at [97], concluded that the challenge to ICAC's decision, that is, that it was not made in accordance with law, failed.

[5]

Operation of the Act 63The appellant submitted that insofar as s 8 and s 9 of the Act were relevant to her, they operated as follows. Section 8 specified what constitutes "corrupt conduct". The conduct specified in s 8(1) required a determination that, broadly understood, was evaluative in nature. Section 8(2) then specified particular conduct which was corrupt conduct for the purposes of the Act. The conduct under s 8(2) relevant to this case was fraud: s 8(2)(e), or conduct of a similar nature to fraud: s 8(2)(x). 64Section 9(1) operated as a limitation or constraint on the width of s 8, as it provides that conduct does not fall within s 8 unless it could constitute one of four categories of specified conduct. As relevant to this case, that was conduct that was a criminal offence: s 9(1)(a); or a substantial breach by a Minister or a member of Parliament of a code of conduct: s 9(1)(d). 65Pursuant to s 9(4) conduct was not excluded from falling within s 8 if it would cause a reasonable person to believe it would bring the integrity of Parliament into serious dispute. In such a case, it was not necessary that such conduct fall within s 9(1). 66Section 9(4) is subject to s 9(5). Section 9(5) applies to a case falling within s 9(4) and precludes a finding that conduct within s 9(4) was corrupt conduct unless ICAC was "satisfied that the conduct constitutes a breach of the law" and the law is identified in the report. The appellant submitted that the "satisfaction of ICAC" within this provision must be on the material before the Commission. 67The appellant next referred to s 13, which identifies the principal functions of ICAC. She drew attention to s 13(3), which includes a power to make findings and form opinions on the basis of the results of its investigations. The appellant submitted that s 13(3A), in providing that a finding of corrupt conduct of the kind specified in s 9(1)(a), (b), (c) and (d) can only be made if ICAC is "satisfied" that such conduct constitutes or involves an offence, requires ICAC to report on the conduct and the offence which is said to be constituted by such conduct. Section 13(4) contains a further restriction in that it specifies that ICAC is not to make a finding, form an opinion or formulate a recommendation that s 74B prevents it from including in the report. Section 13(4) further provides that its provisions and s 9(5) are the only restrictions on ICAC's powers under s 13(3). 68Section 74(3) of the Act places an obligation upon ICAC to prepare a report in circumstances where it has conducted a public enquiry, as occurred in this case. The content of a report given pursuant to s 74 is governed by s 74A. The appellant submitted that s 74A uses the language of authorisation and the combination of s 74A(1)(a) and (b), together with the provisions of s 9 and ICAC's prescribed functions in s 13(3), was such as to impose upon ICAC a duty to give reasons. That is, any report must sufficiently refer to the material upon which its conclusions are based, as well as articulating its conclusion and the reasons for it. In summary, ICAC's findings and opinions must be contained in a "reasoned report".

[6]

Relevant legal principles 69The appellant's emphasis in outlining the manner in which these provisions operated was to focus attention upon the requirement of ICAC's satisfaction in the relevant respects of the matters specified in s 9(5) and s 13(3A). The appellant submitted that the requirement that ICAC be so satisfied was a jurisdictional fact: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165. In seeking a review of ICAC's determination the appellant submitted that it was not a matter for the Court to determine whether the appellant's conduct was corrupt. The question involved a lower level of review, namely, whether ICAC's satisfaction or opinion, that the conduct in question was corrupt, could reasonably be held. 70These matters are uncontroversial and do not require further elaboration. However, it is to be noted that the appellant's submission emphasised the appellant's principal reliance on the third basis upon which she alleged jurisdictional error. In this regard, the appellant contended that having regard to the statutory powers under which ICAC was operating, the requirement that ICAC have a certain state of satisfaction was one that had to be reached logically, rationally and taking account of all the material before it: see Balog v Independent Commission Against Corruption [1990] HCA 28; 169 CLR 625. The appellant submitted that this followed given the seriousness of a finding of corrupt conduct by ICAC. It was said that this flowed from the rule of construction that fundamental rights were not to be taken to have been affected in the absence of clear words: see Balog v ICAC. 71Where legislation requires a person to be satisfied of a specified matter, the person being so satisfied is a jurisdictional fact: see Minister for Immigration v Eshetu; M70/2011 v Minister for Immigration and Citizenship; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12. In this regard, irrationality and illogicality in decision making, including in the formation of a state of satisfaction, may constitute jurisdictional error. However, as indicated, the appellant contended that the question whether the formation of a state of satisfaction that was unreasonable may constitute jurisdictional error. 72The appellant's challenge to the trial judge's determination was principally based upon the contention that there was an absence of a reasonable basis for the finding of corrupt conduct in the material before ICAC. The emphasis on this challenge raised the important question as to whether the absence of a reasonable basis or unreasonableness of the decision constituted jurisdictional error. This in itself raises the question of what is meant by unreasonableness. Two related questions arise in answering this question. First, is unreasonableness the antonym of reasonableness? Secondly, and more particularly, does unreasonableness have a meaning different from irrationality and illogicality? The courts have been grappling with this question for a long time. 73A useful starting point for a consideration of the question is the statement of Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407. The Chief Justice stated, at 430, in respect of the requirement of a decision maker to have an opinion or to reach a state of satisfaction: "[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable [person] who correctly understands the meaning of the law under which [the person] acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist." 74Latham CJ added, at 432: "It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide." (emphasis added) See also Minister for Immigration v Eshetu at [133] per Gummow J. 75A decision which has no basis in the evidence or which is contrary to the overwhelming weight of the material will also involve jurisdictional error: see Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 776-777, cited in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23] and [24] per Gummow ACJ and Kiefel J. 76In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB, Gummow and Hayne JJ stated, at [37]-[38]: "The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned ... The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith." (emphasis added; citations omitted) 77This passage was quoted with approval in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 by Gummow ACJ and Kiefel J at [40] and Crennan and Bell JJ at [102]. Crennan and Bell JJ, at [103], noted that the portion emphasised in the passage had been foreshadowed in Minister for Immigration v Eshetu by Gummow J, at [147], in his reference to "findings or instances of facts which were not supported by some probative material or logical grounds". Gleeson CJ had adopted a similar approach in S20/2002, at [4], where his Honour had observed that a ground of challenge to the Tribunal's decision in that case was that it "was illogical, irrational, or was not based on findings or inferences of fact supported by logical grounds". 78In SZMDS, Crennan and Bell JJ accepted, at [119], that whilst every instance of illogicality or irrationality in reasoning did not give rise to jurisdictional error, jurisdictional error would be established if the illogicality or irrationality occurred at the point at which a decision maker was required to be satisfied of a fact or matter specified by the legislation. There was a question, however, in their Honour's consideration, as to the scope of illogicality and irrationality constituting jurisdictional error. As their Honours observed, at [129], labelling a decision as irrational or illogical involved more than an emphatic disagreement with the decision reached by the decision maker. 79Their Honours, at [125], referred to the Oxford English Dictionary, which conventionally defined "irrationality" as meaning the "quality of being devoid of reason" and "illogicality" as "unreasonableness". In turn, "unreasonableness" was conventionally defined as "irrationality". Their Honours observed, at [128], that to the extent that a standard of reasonableness of wide application to decision making had emerged from the decision in Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, there was an "inevitable overlap with that standard and a standard of rationality". 80However, their Honours did not conclude that the standard in Wednesbury did apply to administrative decision making generally. Nor did their Honours define the extent of the overlap. Rather, at [129], their Honours asked how the notions of illogicality and irrationality fitted with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which was "clearly unjust": House v The King [1936] HCA 40; 55 CLR 499 at 507 per Dixon, Evatt and McTiernan JJ; "arbitrary": R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432 per Latham CJ; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118 per Gibbs J; or Wednesbury unreasonable: Associated Provincial Pictures Houses Ltd v Wednesbury Corporation at 233 per Lord Greene MR. 81Their Honours, at [130], explained what was required to establish jurisdictional error when it was asserted that the decision was illogical or irrational: "In the context of the Tribunal's decision here, 'illogicality' or 'irrationality' sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case." 82Their Honours recognised, as has long been accepted, that if different minds might come to different conclusions on the jurisdictional fact in issue, it could not be said that the decision was illogical or irrational. Their Honours stated, at [131]: "... the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion." 83The same point has been stated by the High Court on various occasions. In S20/2002 Gleeson CJ observed, at [5]: "As was pointed out in Minister for Immigration v Eshetu, to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence." (citation omitted) See also Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [34]. 84In Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618, the High Court again visited the concepts of unreasonableness, irrationality and illogicality, including by reference to the statements of Lord Greene in Associated Provincial Picture Houses Ltd v Wednesbury. The observations of French CJ coincide with what Latham CJ said in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd and Peko Wallsend. 85Li was concerned with the exercise of a discretion. In that context, Hayne, Kiefel and Bell JJ observed, at [68], that: "The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it ..." 86Their Honours continued: "68 ... Lord Greene MR [should not] be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided ... 69 In Wednesbury, Lord Greene MR discussed the various grounds upon which an exercise of statutory power may be abused. His Lordship foreshadowed defining those grounds under a single head of unreasonableness, stating that it was 'perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty ... unreasonableness, attention given to extraneous circumstances, disregard of public policy' were all relevant to the question of whether a statutory discretion was exercised reasonably." (citations omitted) 87Their Honours referred, at [71], to the statement of Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064, that unreasonableness would be shown where "no sensible authority acting with due appreciation of its responsibilities" would have so decided. Their Honours noted that this reflected the common law requirement that decision-makers understand the statutory powers and obligations which governed their decisions. I have already referred to the comments of Latham CJ in The Hetton Bellbird Collieries to the same effect: see above at [73]. Hayne, Keifel and Bell JJ further observed, at [71], that this requirement was also evident: "... in the more specific errors, going to jurisdiction, which the law recognises and to which Lord Greene MR referred in Wednesbury, such as misdirecting oneself as to the operation of the statute, taking into account irrelevant considerations or failing to take into account relevant considerations." (citation omitted) 88Their Honours added, at [72], that: "The more specific errors in decision-making ... may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that 'all these things run into one another'. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is manifestly unreasonable. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense." (emphasis added) 89Hayne, Kiefel and Bell JJ referred, at [75], to the close analogy drawn by Mason J in Peko-Wallsend between judicial review of administrative action and appellate review of a judicial discretion, noting that it was insufficient, for the purposes of appellant intervention in the case of the exercise of a judicial discretion, for the appellate court merely to have a different view from that of the primary judge. Error had to be found in the way discussed. Their Honours next, at [76], referred to the proposition in House v The King that an appellate court was entitled to draw an inference of unreasonableness where the result, on the facts, was "unreasonable or plainly unjust", even if a specific error was not apparent in the reasons. Their Honours considered that an inference of unreasonableness could likewise be drawn in the case of the exercise of a statutory power. Their Honours stated: "Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification." (citations omitted) 90Gageler J was also of the opinion that the condition of reasonableness applied both to the exercise of a discretion and to the reaching of a state of satisfaction required as a pre-requisite to the exercise of a statutory function: see at [105]-[110]. 91This line of authority thus supports the proposition that, ICAC's state of satisfaction that the appellant had engaged in corrupt conduct had to be reasonable in the sense that it was a state of satisfaction that could be reached by a person with an understanding of the nature of the statutory function being performed: Hetton Bellbird Collieries. That state of satisfaction had to be based upon facts or inferences supported by logical grounds: Eshetu; SGLB; SZMD and Li. 92The particular bases upon which the appellant contended that ICAC failed in this task is discussed below.

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Appellant's challenge to ICAC's decision 93Although the appellant's appeal was from the primary judge's decision, her claim remained, in effect, a challenge to ICAC's decision and its reasons. For that reason, I have considered below, in significant respects, those aspects of ICAC's decision that were challenged. To the extent necessary, the appellant's contentions as they relate to the primary judge's reasons are dealt with directly. 94The appellant's argument was concentrated, principally, on two specific alleged errors by ICAC as constituting jurisdictional error. The first related to the alleged inadequacy of ICAC's reference to the various factors that caused the appellant not to read the Determination and the conditions of the sitting day relief entitlement. The second related to the failure to have regard to the full gist of the conversation with Ms Harbilas. There are further specific lines of authority that relate directly to these two contentions. I have considered it more convenient in the structure of this judgment to consider those authorities as part of my consideration of whether the appellant has established that the primary judge erred in not finding jurisdictional error.

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Failure to adequately consider the appellant's reasons for not reading the sitting day relief entitlement 95The appellant challenged the manner in which ICAC dealt with the appellant's evidence as to why she did not read the sitting day relief forms before signing them. The appellant's complaint was that ICAC's reasons as to why it was unconvinced by her explanation were not disclosed, notwithstanding its statement that it "had careful regard to the forms in question and [the appellant's] evidence in regard to Mr Nicoletti's name on them": see Greiner v ICAC (1992) 28 NSWLR 125. She also contended that the requirement to disclose its reasoning was not satisfied by ICAC's further statement that: "It is unlikely that a Member of Parliament, signing sitting day relief forms filled out, as were the forms signed by [the appellant], would not notice that Mr Nicoletti's name had been inserted in them as being the name of the electorate officer attending Parliament House on the days for which sitting day relief was being claimed." 96The appellant contended, therefore, that the primary judge erred in holding that jurisdictional error had not been established in that his Honour had wrongly assessed the sufficiency of ICAC's consideration of the matter. His Honour's reasoning on this question, at [90], was as follows: "There is no force in [the appellant's] submission that [ICAC] acted irrationally in failing to take into account relevant considerations, namely the various distractions that were said to have prevented [the appellant] from learning about the conditions of the sitting day relief entitlement. As counsel for [the appellant] acknowledged, [ICAC] referred in its Report to [the appellant's] claim that she was 'busy at the time she received the [sitting day relief] email'. True it is that that was a reference in passing, without any detailed consideration of the various distractions cited by [the appellant]. 'Simple advertence' does not qualify as genuine consideration: Weal v Bathurst City Council [2000] NSWCA 88 at [13] (Mason P). But it is clear from the Report as a whole, and the findings with respect to [the appellant's] credit in particular, that [ICAC] considered and rejected [the appellant's] explanation. [ICAC's] expressed reasons may have dealt with this aspect of the evidence inadequately, but as the High Court pointed out in Wu Shan Liang, that will not suffice to establish error." 97The appellant submitted that ICAC's "perfunctory" treatment of this evidence demonstrated a failure to grapple with what was, in effect, the appellant's central response to the allegations of corrupt conduct against her, namely, that she was not aware of the terms of the sitting day relief entitlement. This issue raised the question as to whether ICAC had a duty to give reasons and, if so, the nature and extent of that duty. The appellant submitted that the Act implicitly imposed a duty to give reasons. 98The Act does not in terms state that ICAC must give reasons for its decision. It imposes a duty to investigate any matter referred for investigation under the Act: s 73. Section 74 provides for the circumstances in which ICAC is to prepare reports in respect of matters it has investigated. Relevantly to this matter, ICAC is required to prepare a report in relation to matters in which it has conducted a public inquiry: s 74(3). A public inquiry was held as part of the investigation into the appellant's conduct subject of ICAC's report. Section 74(3) is subject to a contrary direction from the Houses of Parliament. No such contrary direction was given in respect of this matter. 99Section 74A provides that ICAC is authorised to include in the report statements as to, and its reasons for, its findings, opinions and recommendations. As already discussed, s 74B prohibits ICAC from including in the report a finding or opinion that a specified person is guilty of a criminal or disciplinary offence. Section 74A is to be read in conjunction with s 13, which prescribes ICAC's principal functions, including the power to make findings and form opinions on the basis of the results of its investigations: see s 13(3)(a). 100The Act thus provides for a written report with a specified, authorised content, a proscription on reporting in respect of certain matters and an exemption from the requirement to report in certain circumstances. In my opinion, within that framework there is a duty on ICAC to give reasons for a decision or recommendation made in the report. The real question, in my opinion, is the content of reasons that are to be given in respect of the matters upon which ICAC made its findings, opinion and recommendations. 101The appellant submitted that a decision maker's reasons were required to record the steps taken in arriving at the ultimate decision. This was said to be required by the approach explained by Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [130]. "In the present case, however, reference to the 'sufficiency' of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue." 102Hayne J, at [131], observed that in the case before him the primary judge, in preferring the evidence of a particular witness, gave no reasons for doing so by way of analysis of competing evidence nor by giving an explanation for rejecting the evidence. Hayne J considered that these omissions meant that that the process of fact finding miscarried, there being no examination on the face of the reasons as to why the accepted evidence was to be preferred over that of other witnesses. 103Waterways Authority v Fitzgibbon involved the reasons of a trial judge in adversarial litigation. However, to the extent the requirement to give reasons was said to involve an obligation on the trial judge to express the reasons that led to the result, Hayne J's comments would, in my opinion, apply to reasons given in accordance with the statutory requirements of this case. Such a duty is consistent with the requirement that a decision of the kind that may be made under the Act must be in conformity with the law and be reasonable in the sense discussed in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd and the later authorities that restate this principle. Whether or not a decision satisfies those requirements will be the more readily evident if the reasons given for the decision comply with the requirements indicated by Hayne J. 104His Honour's remarks are also consistent with the well established principle that the reasons of an administrative decision maker are meant to inform: Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272. The remarks are also consistent with the reasoning process in which ICAC is required to engage in coming to its ultimate finding. As Gleeson CJ explained in Greiner v ICAC at 136: "... in determining whether conduct could constitute or involve a criminal offence, the Commissioner would be required to go through the following process of reasoning. First, he would be required to make his findings of fact. Then, he would be required to ask himself whether, if there were evidence of those facts before a properly instructed jury, such a jury could reasonably conclude that a criminal offence had been committed." 105The expressed reasons of an administrative decision maker should, in my opinion, make it apparent that this reasoning process has been undertaken. This is particularly so in the case where the administrative process involves a formal public hearing, by a Tribunal, conducted in a way that is essentially adversarial in nature and where the consequences, if adverse findings are made, are potentially very grave for the individual concerned. 106Although I have concluded that the content of the reasons of a decision maker such as ICAC ought to comply with the approach indicated in Waterways Authority v Fitzgibbon, it is accepted that the reasons of an administrative decision maker should not be over scrutinized to the extent that infelicity of expression is equated with legal inadequacy: Minister for Immigration and Multicultural Affairs v Wu Shan Liang, at 272. Thus, although the content, form and detail of ICAC's reasons should be as I have indicated, ICAC's reasons must be read fairly and without a requirement that every piece of evidence be reproduced. 107As I have said, Waterways Authority v Fitzgibbon related to reasons given by a judicial officer in trial proceedings. The question of the content and detail of judicial reasons was discussed in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430. Meagher JA observed, at 441, that the source of the requirement to give reasons differed as between an administrative decision-maker and a judicial officer, the former requirement being based in legislation and the latter being an incident of judicial duties. Nonetheless, his Honour considered: "... [t]here is no reason in principle or as a matter of policy why the content of reasons for both types of decision should not be similar, if not the same: they essentially serve the same purpose." 108His Honour, at 443, noted that there was no universal statement that could be made as to the content necessary for reasons to be adequate. However, his Honour considered, at 443-444, that there were three fundamental elements to a statement of reasons, including, as is relevant to the present argument, that there should be a reference to relevant evidence. His Honour further observed that there was no need to refer to such evidence in detail, "especially in circumstances where it is clear that the evidence has been considered". His Honour continued: "However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate Court may infer that the trial judge overlooked the evidence or failed to give consideration to it." (citation omitted) 109ICAC has not, in my opinion, made any such error in its report. On each occasion that ICAC found the appellant's evidence to be unsatisfactory, unpersuasive or unreliable, it did so in conjunction with other evidence that was relevant to the particular matter under consideration. It explained on each occasion why the appellant's evidence was not accepted on the particular matter. 110Insofar as complaint is made that the perfunctory reference to the appellant's explanation as to why she may not have read the terms of the Determination relating to the relief staff entitlement was inadequate and insufficient to constitute compliance with ICAC's obligation to give reasons, that argument should be rejected. ICAC noted that the appellant's reasons for a failure to read the Determination included that she was busy at the time and that she was not following the particular question as to the issue of additional staffing closely. 111In my opinion, that reference encapsulates what the appellant had advanced by way of explanation. ICAC did not need to set out the details of the busyness. A person can, of course, be busy for a variety of reasons and thus be distracted and not pay attention to the detail of matters that require attention. In the appellant's case, she was busy because she had had a baby, delivered prematurely, and she had an "intense pre-selection battle on her hands". It was, however, the fact of being busy and whether that caused the appellant not to pay attention, so that she did not know the terms of the relief day entitlement, that was the relevant consideration for ICAC. The precise reason for the busyness was not the question in issue. 112ICAC, having noted that appellant contended that she did not read the Determination because, inter alia, she was busy, then set out the reasons why it was not persuaded of that explanation. ICAC also observed that the appellant's evidence on this matter was not unequivocal and that she had conceded in her evidence that although she did not remember doing so, she may have read the Determination. It is apparent from the terms of the report that ICAC had regard to the appellant's explanation, considered it in the context in which it was advanced, in conjunction with the other evidence, and explained why it did not accept the explanation. 113In my opinion, ICAC did not give insufficient attention to the reasons why the appellant said she did not, or may not, have read the Determination. This particular challenge to ICAC's report as constituting jurisdictional error should be rejected.

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Failure to take into account a material consideration: the full content of Ms Harbilas' evidence 114The appellant's second principal challenge to ICAC's report was in respect of ICAC's finding, held by the trial judge not to be infected by jurisdictional error, that the appellant knew the sitting day relief entitlements depended upon the relief officer working as the electorate officer while the electorate officer worked at Parliament House. The appellant submitted, by reference to Chapter 3 of ICAC's report, that Ms Harbilas' evidence was the central evidence which led to ICAC's finding of corrupt conduct. As developed, the appellant's argument was that ICAC had failed to consider, or to correctly record the full gist of the conversation Ms Harbilas had with the appellant. 115It should be noted that although the appellant originally submitted that ICAC had no basis to draw an inference that the appellant had given Ms La Manna a similar instruction to that which it found had been given to Ms Harbilas, its final position was that if the case as advanced based on the evidence given by Ms Harbilas did not succeed, the case based on the forms filled in by Ms La Manna also failed. This was a logical and appropriate position to take. If no jurisdictional error is found in respect of the case based on Ms Harbilas' evidence is found, it followed that the appellant must have had been aware of the requirements of the sitting day relief entitlement, when, some months later, she signed the form filled in by Ms La Manna.

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Ms Harbilas' evidence 116ICAC, at 12 of the report, recorded Ms Harbilas' evidence of a conversation with the appellant in the appellant's office at Parliament House in which the appellant: "... told [Ms Harbilas] to insert the name of Mr Nicoletti as the electorate officer working at Parliament House on the first form, even though both Ms Harbilas and Ms D'Amore knew that Mr Nicoletti had not worked at Parliament House during the relevant period but had worked at Ms D'Amore's electorate office." 117Although ICAC found that parts of Ms Harbilas' evidence were unreliable, nonetheless at 12-13 of the report, ICAC accepted the truth of the following aspects of her evidence: "a. Ms Harbilas asked Ms D'Amore whose name she should put in the box (in the form), relating to the name of the electorate officer working at Parliament House b. Ms D'Amore replied that Mr Nicoletti's name should be inserted in that box (even though, to Ms D'Amore's knowledge, he was not the person who had worked at Parliament House on the days claimed on the form) c. what is set out in (a) and (b) comprise the 'gist' (as described by Ms Harbilas in her testimony) of the conversation d. Ms Harbilas has an independent and accurate recollection of the gist of the conversation so set out e. Ms Harbilas knew that by putting Mr Nicoletti's name in that box she 'was doing the wrong thing'." (emphasis added) 118In respect of the finding in (d), ICAC, at 13, was of the opinion that the "gist" of Ms Harbilas' evidence was relatively concise, simple and straightforward. 119The crucial question before ICAC on this point was whether the appellant or Ms Harbilas was to be believed. ICAC did not accept the appellant's evidence that she did not think the conversation alleged by Ms Harbilas took place. The appellant submitted, however, that in accepting Ms Harbilas' evidence, ICAC erred in that it: (i) mischaracterised the evidence; (ii) failed to address clearly exculpatory material; and (iii) in doing so, engaged in an irrational reasoning process. The appellant referred to Suvaal v Cessnock City Council [2003] HCA 41; 77 ALJR 1449, where Gleeson CJ and Heydon J warned against extracting only part of a witness' testimony. Their Honours stated, at [14]: "It is highly artificial and impermissible to engage in a process of parsing and analysing the plaintiff's testimony before severing particular words from it, purportedly leaving the balance as a free-standing proposition. It distorts the substance of what he was saying." 120The appellant also submitted that, in accordance with Watson v Foxman (1995) 49 NSWLR 315 at 318-319, ICAC failed to have regard to the: "... relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition." 121In advancing this argument, the appellant's central submission was that in focussing on the conversation the appellant had with Ms Harbilas, ICAC was required to engage with what the evidence actually was, address that evidence, and if the evidence was exculpatory or there was a reasonable possibility of the evidence being exculpatory, deal with the exculpatory aspects of the evidence. 122The appellant recognised that in a judicial review proceeding, it was not open to her to question ICAC's credibility finding. Her complaint was that ICAC did not accurately record the "gist" of what was said in the crucial conversation regarding the first claim form. The appellant further contended that even if the "gist" of the conversation was accurately recorded by ICAC, it was "at least decently arguably exculpatory". In other words, the appellant contended that had ICAC properly recorded Ms Harbilas' evidence and considered that evidence, it would have been indicative of a misunderstanding by the appellant of the relief staff entitlement. This submission requires an explanation of the sitting day relief form and a more detailed consideration of Ms Harbilas' evidence. 123The sitting day relief form contained, relevantly, four sections that required completion: a section specifying the name of the Electorate and the name of the relief officer working in the Electorate Office; a section specifying the rate of pay for the relief officer; a section specifying the date of employment of relief staff in the electorate office; and the name of the electorate officer working at Parliament House. The form also contained a "Member's Declaration" that was required to be signed and dated. 124Following the introduction of relief day sitting entitlement the appellant engaged Ms Harbilas as a relief officer. However, contrary to the terms of the entitlement, Ms Harbilas did not work in the appellant's electorate office on sitting days but at Parliament House. On 26 October 2006, Ms Harbilas filled out the sitting day relief form for 24-26 October 2006. She inserted the name "David Nicoletti" under the column headed "NAME of electorate officer working at Parliament House". She ticked the box for a third year EO2 in the section indicating the rate of pay for the relief officer. She presented the completed form to the appellant who inserted her name, signature and date in the box containing the Member's Declaration. 125In her examination by Counsel assisting the Commissioner, Ms Harbilas gave the following evidence: "And why did you write the name David Nicoletti in that box there when you knew that you were the one working in Parliament House and not David Nicoletti? --- Because that's how I would get paid. All right. And how did you know that that was how you would get paid? --- Well, I was told to put David's name there. Who told you to put David's name there? --- [The appellant]. ... And did she say, did you raise with her when you were filling in the form what you should put in that box? --- Well, yes, if she told me, we discussed it, yes. ... So did you say to her, well, whose name should I put in that box? --- Yes, something like that. ... And she said, David Nicoletti? --- Yes. ... Or did you work out that it had to be an electorate officer working at Parliament House in order for you to get paid? --- Yes, that seemed to be the case." 126Ms Harbilas' evidence in cross-examination was: "And the true position is, isn't it, that you have no recollection whatsoever of any conversation with [the appellant] in which she instructed you as to the filling out of either form? --- I don't have a, I don't have a, cannot recall a specific conversation but I know that we discussed it and the gist of it that I was to put David Nicoletti's name on the form where my name, when my name would go at the, at the end of the form." 127Pressed to "more or less" state the words used in the conversation, Ms Harbilas said: "More or less I would have been told to put David's name in the, in the name of the officer working at Parliament House in lieu and, and that I was the person who was supposed to be at Parliament House. So even though I wasn't supposed to be there, I was, I, I put, I wasn't supposed to be there so I put David's name there. I was told to put David's name there because he was the other EO2." 128Ms Harbilas denied that she had never been told by the appellant to put Mr Nicoletti's name in the field "NAME of electorate officer working at Parliament House".

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The appellant's evidence as to filling in the form 129The appellant's evidence was that she did not read the sitting day felief form before signing it. She explained that she read some forms that required her signature "very quickly", but that she was "signing a form for a relief officer who'd worked on sitting days" to enable a salary to be paid by Parliament. She said, "[t]his is [an] administration task". 130The appellant did not recall the conversation with Ms Harbilas. She said she did not know how Mr Nicoletti's name came to be inserted under the name of the electorate officer working at Parliament House. In direct response to Ms Harbilas' evidence that the appellant had told her to insert Mr Nicoletti's name on the form, the appellant was examined as follows: "Now, you've heard what Ms Harbilas said, haven't you? --- Yes, I have. You've heard that she said to you, 'Whose name do I put there?' --- Yes, I've heard her say that. ... and she said that you said, 'Put David Nicoletti's name.' And that's what she appears to have done? --- I did not tell her, I do not remember at all telling her or giving her instructions on how to fill out this form. THE COMMISSIONER: Its, Ms D'Amore, its of genuine concern to me to really try and understand how it could come about that Ms Harbilas would put the name David Nicoletti down on this form of her own accord, out of the blue, as it were. Can you offer any suggestion for that? --- Commissioner, unfortunately I can't and I can't speculate how that occurred either." 131She later said, "I don't ever recall telling her to put his name there".

[12]

The appellant's argument 132The appellant contended that ICAC did not accurately record and, therefore, did not act on the full or true gist of the conversation. In particular, the appellant contended that ICAC failed to include in its consideration Ms Harbilas' evidence that the appellant had told her to put Mr Nicoletti's name on the form "because he was the other EO2". 133The appellant submitted that, in circumstances where, on the appellant's evidence, she did not understand the conditions of the staff relief entitlement, namely, that the electorate officer was required to work at Parliament House, the reference in the conversation to "the other EO2" indicated that the appellant had understood that the only relevant information required to be stated on the form was "the particular grade of [the] person being paid". In other words, the conversation as recorded by Ms Harbilas, which was accepted as correct for the purposes of this argument, was exculpatory of the appellant. 134The primary judge dealt with this evidence and the appellant's argument in respect of it at [92]. Although reference is made to this paragraph, at [58]-[60] above, it is now set out more fully to deal with the argument advanced and his Honour's reasons: "There is more substance in [the appellant's] complaint that the defendant does not appear to have considered the various statements made by Ms Harbilas which may have given [the appellant] the mistaken impression that the claim forms were asking for the name of the EO2, rather than the electoral officer present at Parliament House on the relevant sitting days. This evidence was clearly relevant to the extent that it supported an inference that [the appellant's] instruction was not fraudulent, but rather based on a misunderstanding. But even if it be assumed in [the appellant's] favour that the evidence was a mandatory relevant consideration, the absence of any reference to the evidence in [ICAC's] Report was not a failure to consider a relevant matter of an order that could have 'materially affected' the outcome: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [15], [23] (Mason J). So much is clear from the adverse inferences [ICAC] drew from the forms themselves, [the appellant's] interest in obtaining an additional member of staff for sitting days, and [the appellant's] telephone conversation with Ms Schofield, none of which depended on Ms Harbilas' evidence. Moreover, as counsel for [ICAC] pointed out, the so-called 'innocent explanation' did not tally with [the appellant's] evidence that she never had a conversation with Ms Harbilas about whose name should go on the form. These factors suggest that [ICAC] would not have reached a different decision if it expressly considered the 'innocent explanation'. Taking into account [ICAC's] reasoning process, which relied on the circumstances considered as a whole, it cannot be said that [ICAC's] oversight (if it be an oversight) deprived [the appellant] of the possibility of a successful outcome: Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346 at [64] (Sackville J)." (emphases added) The appellant's challenge was in respect of the bolded portions of this passage.

[13]

Failure to take into account material considerations 135The appellant advanced two independent arguments based upon a failure of the primary judge to take into account material considerations. The first related to his Honour's finding, at [92], that even if Ms Harbilas' evidence, that the appellant said that she was to insert Mr Nicoletti's name on the form, was a mandatory relevant consideration, a consideration of that evidence would not have affected the outcome: see Minister for Aboriginal Affairs v Peko-Wallsend. 136The appellant contended that, in reaching this conclusion, the primary judged erred in two respects. First, she submitted that the reason that Ms Harbilas said the appellant gave for inserting Mr Nicoletti's name, that is, that he was "the other EO2", directly supported what the appellant asserted was her state of mind at the time she signed the forms, namely, that she did not know the terms of the sitting day relief entitlement. In other words, in her mind, it would have been relevant to tell Ms Harbilas to put Mr Nicoletti's name on the form, because she understood that the form required a reference to the name of the person on her permanent staff who worked at the level at which the relief officer was to be paid. The appellant submitted that this was direct evidence that was highly material to the appellant's understanding and was exculpatory and should have been addressed by his Honour. 137The appellant contended, therefore, that the primary judge erred in finding that the absence of reference to this material did not deprive the appellant of the possibility of a successful outcome to her challenge to ICAC's ultimate findings. 138The appellant contended that his Honour's reliance upon the fact that according to the appellant, she did not have a conversation with Ms Harbilas as to how the form was to be completed, was irrelevant, in circumstances where ICAC had found that the conversation had occurred and that finding was central to its finding of corrupt conduct. On the appellant's submission, it was critical in those circumstances for ICAC both to record the conversation correctly and to analyse its relevance in its consideration of whether the appellant acted corruptly. 139The appellant also argued that the primary judge's reliance on the other matters: viz the adverse inferences drawn from the forms, the appellant's interest in obtaining additional sitting day staff and her telephone conversation with Ms Schofield, meant that his Honour had failed to take proper account of the significance of this exculpatory evidence and his approach was inconsistent with the requirement that he take account of all material information. 140The appellant contended that because this evidence was material to the central issue of the appellant's state of mind ICAC was bound to take this evidence into account. Its failure to do so was said to constitute jurisdictional error.

[14]

Consideration: did his Honour err in finding that this evidence would not have made a difference? 141In Minister for Aboriginal Affairs v Peko-Wallsend, Mason J stated, at 39, that a failure to take a relevant consideration into account gave rise to entitlement to challenge an administrative decision. However, as his Honour stated, at 40: "Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision (see, for example, the various expressions in Baldwin & Francis Ltd v. Patents Appeal Tribunal (1959) AC 663, at p 693; Hanks v. Minister of Housing and Local Government (1963) 1 QB 999, at p 1020; Reg. v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society (1984) QB 227, at p 260). A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision (Reg. v. Bishop of London (1889) 24 QBD 213, at pp 226-227; Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd (1982) 3 All ER 761, at pp 769-770)." 142In Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346, Sackville J, at [62], noted that there was some ambibguity in Mason J's statement, as his Honour had himself recognised. Sackville J, at [64], considered that the correct approach was the test stated in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 and in Refugee Review Tribunal, Re; Ex parte Aala [2000] HCA 57; 204 CLR 82, pursuant to which the reviewing court asks: "... whether the applicant has been deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of the statute." 143In this case, that principle would involve not having regard to evidence that may have been expulatory. 144In my opinion, the appellant's challenge to his Honour's conclusion at [92] and therefore her challenge to ICAC's decision on this issue, on the basis of jurisdictional error, fails. Contrary to the appellant's argument, the primary judge did not dismiss this error on the basis of a speculative conclusion that ICAC would not have reached a different conclusion. The principle stated in Minister for Aboriginal Affairs v Peko-Wallsend, as further considered and explained by Sackville J in Lu v Minister for Immigration and Multicultural and Indigenous Affairs, requires the reviewing Court to undertake the evaluative task of determining whether the applicant would have been deprived of the possibility of a successful outcome had the relevant matter been taken into account. 145The primary judge considered there were three factors in particular that led to the conclusion that the appellant had not been deprived of the possibility of a successful outcome: the adverse inference ICAC drew from the forms; the appellant's interest in having sitting day relief staff; and the conversation with Ms Schofield. His Honour concluded that these matters, when considered with the evidence as a whole, including the fact that this innocent explanation did not tally with the fact that the appellant said she did not have the conversation at all, meant that it could not be said the appellant was deprived of the possibility of a different outcome, if in fact there had been an oversight in failing to refer to the evidence that Mr Nicoletti's name was inserted because he was "the other EO2". 146There was no error in this reasoning. Each of the factors referred to by his Honour supported the conclusion that the appellant knew the terms of the sitting day relief entitlements before Ms Harbilas worked at Parliament House. These matters overlapped with the factors to which his Honour referred at [88], being the factors that ICAC relied upon in concluding that the appellant knew the terms of the sitting day relief entitlements. The primary judge concluded, at [88], that it was not irrational or illogical for ICAC to infer from the circumstantial evidence that the appellant knew the terms of the sitting day relief entitlement from the forms themselves, the emails sent to her email address and accessed from her account, the appellant's knowledge and interest in industrial matters and the statements made in the phone call to Ms Schofield. 147The first and second factors relied on by ICAC, namely, the claim forms and the emails, were challenged as part of the attack on the adequacy of the consideration ICAC gave to the appellant's explanation that she was busy. That has already been dealt with above. However, once the appellant was rejected on that evidence in a way that has not been subject to a successful challenge, both were powerful pieces of evidence that pointed ineluctably to the conclusion that the appellant knew the terms of the sitting day relief entitlement and gave a direction to Ms Harbilas to fill in the form incorrectly. The third factor was not irrelevant. It was a relevant matter, but it was a matter for ICAC to determine the weight it would give to that factor. Being only one of a number of factors that ICAC took into account, it could not be said to be irrational, illogical or unreasonable to have reference to it. The conversation with Ms Schofield also supported ICAC's conclusion. 148In my opinion, the trial judge did not err in his conclusion that the appellant had failed to establish jurisdictional error in the way alleged.

[15]

Forms completed by Ms La Manna 149The appellant further contended that the circumstances in which Ms La Manna completed the forms was also relevant to the determination of whether the appellant had engaged in corrupt conduct. Ms La Manna completed the forms, in part, at least prospectively, as I explain below. This submission was directed to the appellant's state of mind. It was contended that as the forms were filled in prospectively, the appellant could not have known that the information on the forms was incorrect. 150The evidence in relation to the forms completed by Ms La Manna differed from that which related to the forms completed by Ms Harbilas. Three differences were said to be of particular relevance. First, Ms La Manna denied that she had any conversation with the appellant as to whose name should be inserted on the form. Secondly, there was a possible explanation as to how Mr Nicoletti's name came to be inserted. Thirdly, the forms were completed and signed prospectively, so that it could not be said that, at the time she signed them, the appellant's member's declaration was false as the matters to which the form related had not, or had not fully, occurred. In this regard, the evidence established that this was a sanctioned practice. 151I will deal later with Ms La Manna's evidence that she was not told by the appellant to complete the forms by inserting Mr Nicoletti's name as the person working at Parliament House and ICAC's reasons for rejecting that evidence. It is convenient to refer first to the forms Ms La Manna completed for the appellant's signature. The first form on which Ms La Manna inserted Mr Nicoletti's name for the week commencing 21 May 2007 may be used to exemplify the argument. 152The form signed on 21 May 2007 was in respect of the period 29 May 2007 to 1 June 2007. Ms La Manna signed the form and the appellant signed the Member's Declaration on that day. The form contained the following notations: "Relief Register Noted: 22/5"; "Date to payroll: 31 May 2007". Initials appeared in the field "Approved and above the printed words "Clerk of the Legislative Assembly". The date "31/5/07" was entered as the date of approval. Other than the appellant's member's declaration, the sections for "office use only" and the approval section, the writing on the form was Ms La Manna's. 153The form was thus completed and approved by the relevant section of the administration prior to all the days, for which the claim was made, had been worked. I should add that the position was more obvious in respect of the weeks commencing 5 June and 19 June respectively. In each of those weeks, Ms La Manna completed the form on the first day worked, and the appellant signed the member's declaration on the same day and the form was approved by the administration prior to the end of the period nominated as being days in which relief staff worked. Otherwise, the writing on the form was Ms La Manna's, other than where the appellant wrote her name, signature and date in the section for the Member's Declaration. 154Ms La Manna's explanation as to why the forms were filled out containing the erroneous entry in relation to Mr Nicoletti was that when she completed the first form, dated 9 May 2007 (this form was not the subject of an allegation of corrupt conduct), she had left blank the name of the officer working at Parliament. The administrative officer who processed that form gave evidence that, although she had no independent recollection of this form, her practice, where such a form was incomplete was to contact the electorate office to ascertain the name of the relevant employee who worked at Parliament House. The entry relating to Mr Nicoletti on this first form was in her writing. The administrative officer said that she assumed that she followed that practice in respect of this form. 155The administrative officer also gave evidence that there was a practice whereby the sitting day relief forms could be submitted for payment prior to the completion of the Parliamentary sitting week, so as to enable the relief officer to be paid in that week. She said, however, that if the details on the sitting day relief form subsequently proved to be incorrect, it was expected that they would be corrected by the Member's office. 156Ms La Manna gave evidence in relation to the first form. She said she did not tick the box in the section relating to the rate of pay and that she did not understand the form. She also said that she did not read that part of the form where the name of the officer working at Parliament House was to be inserted. Under further questioning, she agreed that she must have seen that part of the form but left it blank. In response to the question that there was nothing "too complex about the name of [the] officer working at Parliament House", Ms La Manna said: "Yeah, that's correct now". However, she accepted it would be ridiculous to suggest that she didn't understand what was meant by "name of officer working at Parliament House" on the form. The result of this examination was that Ms La Manna could not, at that point of time, explain why she didn't fill in that box at the time she was filling in the first form. 157In the course of the earlier private examination in the matter Ms La Manna had given evidence that Mr Nicoletti had informed her that she had "filled the wrong form. This is how you fill it out. You need to put my name in, you put my name". Ms La Manna had also said in the private hearing, "So every form I filled out correctly". She added that Mr Nicoletti had also said that was "because [I] was the officer in Parliament ... and [you were] at the electoral office". She also said that it was noteworthy and memorable for her to have worked in Parliament House. In respect of the subsequent forms, which were in her writing, Ms La Manna agreed that she read the form before doing so including the words "name of electorate officer working at Parliament House". 158Ms La Manna's explanation for inserting Mr Nicoletti's name on the form, was that she "would have copied the previous [form]"; and that she "just copied the previous forms". She said that nobody had told her that the first form had been wrongly filled out and that she didn't know that she had done something wrong. 159Although Ms La Manna denied that the appellant told her to put Mr Nicoletti's name on the form, she said that she had a conversation with the appellant as to her rate of pay for the purposes of completing that part of the form relating to "rate of pay for the relief officer". She also accepted that there was nothing ambiguous in the form. Her evidence continued: "But on this form you've put in respect of four days, that David Nicoletti went to Parliament House when in fact you went to Parliament House? --- Yes. And you've presented that to Ms D'Amore to sign on Tuesday, 5 June, 2007 notwithstanding that you knew at the time you presented it to her for signing that it contained a falsehood. Correct? --- Yes. And you wouldn't have done that if you hadn't been satisfied that that's what Ms D'Amore wanted you to do would you? --- Well, that's correct. I'm not --- Because you would never have, you would never have wanted to compromise her position, undermine her reputation, lead her into signing a false declaration unless you were comfortably satisfied that that's what she wanted you to do? --- Yes, as directed. When you say as directed, that's as directed by Ms D'Amore isn't it? --- Or David Nicoletti. Well, just a minute. If David Nicoletti had asked you to make a false statement on this form, which you were to sign and present to signing for Ms D'Amore and for her to make a members declaration as a result of which you would be paid money, you'd want to know what she thought about signing a false declaration wouldn't you? --- Yes." 160Notwithstanding her earlier denials that she knew that she was writing something false on the form when she inserted the name of Mr Nicoletti, Ms La Manna later conceded that she knew at the time that she completed the form for 19 June 2007 that it was false. Her evidence also included statements that she had not been advised she was doing something wrong; that she didn't know that she was doing something wrong; that she not read the form properly; and that she wouldn't have wanted to mislead the appellant. She also conceded that she knew that if she put her name on the form as the person at Parliament House she was wouldn't have been paid. 161In the appellant's submissions to ICAC, an argument was advanced that, in respect of the claim forms completed and signed by Ms La Manna, subsequent to the form dated 9 May 2007, Ms La Manna may simply have copied the information from that form. On that assumption, it was submitted that the appellant could not have had any intention to act in a corrupt manner. That may have been an available inference if Ms La Manna or the appellant had been believed. However, this argument became irrelevant once the appellant conceded that if she did not succeed in establishing that ICAC's findings in respect of the forms completed by Ms Harbilas were infected by jurisdictional error, she could not succeed in relation to the forms completed by Ms La Manna: see at [115]. 162There was also a question as to the time at which arrangements were made for Ms La Manna to work at Parliament House. Both the appellant and Ms La Manna gave evidence in respect of this question. The appellant initially accepted that in late May she "could have" made a decision that Ms La Manna was to be the person who worked at Parliament House. She said a reason for this could have been that Ms La Manna had expressed a desire to become familiar with things in Parliament House and also because of things that were happening in the electorate office. She later said that the decision for Ms La Manna to work at Parliament House was made on a daily basis. 163Ms La Manna said that when she first started to work for the appellant in early May, she worked in the electorate office and Mr Nicoletti worked at Parliament House. She said, however, that on the days that she worked at Parliament House, she would first go to the electorate office and then work as directed, either at Parliament House or at the electorate office. However, later in her evidence, Ms La Manna agreed that from the beginning of June, she knew that she was to be the officer to work at Parliament House. She agreed that in this regard the practice changed as between May, when Mr Nicoletti went to Parliament House, and June, when the arrangement was for her to go to Parliament House. This arrangement came into effect because Mr Nicoletti wanted to leave and Ms La Manna was being trained to take his place. The idea was that she would go to Parliament House so that she would "understand that part of the role". 164ICAC referred to this matter in its report, at 31, in the following terms: "Significantly, each of the three June 2007 claim forms were completed and signed by Ms D'Amore and Ms La Manna on the first sitting day of each sitting week. This was a practice permitted by Parliament in order to facilitate the payment of relief staff. This practice is inconsistent with the contention that the decision to send Ms La Manna to work at Parliament House in June 2007 was made on a daily basis. The Commission does not accept that in June 2007 a decision was made on a daily basis as to which employee in the Five Dock electorate office would be sent to Parliament House. The Commission finds, on the contrary, that in late May 2007 or on 1 June 2007 a decision had been made, to which Ms D'Amore and Ms La Manna were parties, that in June 2007 Ms La Manna, and not Mr Nicoletti, would attend Parliament House (and Mr Nicoletti would work in the electorate office). This finding is in accordance with Ms La Manna's evidence referred to above." 165The appellant complained that this was an insufficient consideration of the evidence and the submission that as the forms were completed prospectively, she could not have had an intention to claim the sitting day relief entitlement when she was not entitled to do so. The nub of this argument was the fact that the forms were filled out prospectively, in accordance with a practice permitted by Parliament's administrative arrangements, was relevant to the appellant's state of mind. In other words, the appellant complained that ICAC failed to consider the relevance of the prospective filling in of these forms to the appellant's actual state of mind. 166It is important at this point to recapitulate how the appellant argued this aspect of her case. She did not seek to challenge ICAC's rejection of Ms La Manna's evidence that she had not been instructed by the appellant to insert Mr Nicoletti's name on the forms. She also accepted that if this Court did not uphold her appeal insofar as it was based upon Ms Harbilas' evidence, she could not succeed insofar as ICAC's report was based upon the forms completed by Ms La Manna. This result had to follow as if there was no error in ICAC's finding based upon Ms Harbilas' evidence, the appellant had to know that it was false to state that Mr Nicoletti worked at Parliament House when the forms were completed by Ms La Manna. 167The appellant's complaint was that ICAC failed to consider this matter which was also relevant to her state of mind: see Dranichinikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389. She submitted that as Ms La Manna's forms were completed and signed off on prior to the days actually worked, she could not have known that the information in them was false as the event had not yet happened. It is important in considering this particular submission that the appellant did not give any evidence as to how the forms, completed and processed ahead of time, affected her state of mind. Nor did she give evidence as to why Mr Nicoletti's name appeared at all, let alone on days on which she knew that Ms La Manna was working in Parliament House. 168The appellant further submitted that notwithstanding that ICAC made reference to the completion of the forms by Ms La Manna in the paragraph referred to above, ICAC did not deal with the possibility that the manner in which the forms were completed provided a window into her state of mind. Relevantly, it provided an exculpatory explanation as to why she signed forms that contained the incorrect information. The appellant submitted that this was another example of the appellant having a distracted state of mind. 169The difficulty with the appellant's argument on this point is that ICAC made a factual finding against the appellant on the state of affairs that underpinned the submission. ICAC did not accept that the appellant made a decision on a daily basis as to who was to work at Parliament House. There is no requirement, whether based in the obligation to give reasons, or engage in decision making that is reasonable, that requires a decision maker to deal with an argument which is dependent upon findings of fact contrary to those found. 170In my opinion, this argument should be rejected. 171There were a number of other arguments advanced in the appellant's notice of appeal. These arguments challenged the manner in which the primary judge dealt, or failed to deal with findings on credit, onus and the standard of fact finding required. The appellant also complained that in circumstances where his Honour also found that reasonable minds might have differed as to whether a finding of corrupt conduct was open, his Honour's ultimate conclusion was erroneous.

[16]

The credit contention 172The appellant made two complaints relating to ICAC's credit findings. First, the appellant contended that the primary judge failed to find that ICAC's credit findings were not supported by the objective evidence. It appears that this was a reference to the appellant's submissions relating to her busyness at the time; the fact that her staff prepared the sitting day relief forms; the fact that she did not read the forms; and that she would only have read the emails if her staff had alerted her to them. None of these matters are objective facts. Whilst the fact the appellant had recently had a baby, had faced a fierce pre-selection battle and there was an upcoming election, were matters that had or were to occur, their relevance was dependent upon the appellant's evidence. These matters were advanced in support of the appellant's assertions that she had not read the forms and her reasons for not having done so. ICAC did not accept her evidence. 173The appellant argued, nonetheless, that reliance on an adverse credit finding was no answer to the appellant's complaint, that ICAC had failed sufficiently to assess her explanation for why she had not read the Determination or the summary of the entitlement contained in the email of 18 June 2006. In this regard the appellant submitted that the importance of credit/demeanour based findings was not to be overstated: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [28]-[29]; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) [1997] HCA 3; 160 ALR 588 at [63]. The appellant further submitted that the fact that credit based findings were involved did not put a matter beyond judicial review. 174In summary, the appellant submitted that ICAC's failure to directly consider the exculpatory evidence involved unreasonable reasoning, failed to address relevant material and amounted to a constructive failure to exercise jurisdiction. 175I have already concluded, for reasons that were slightly different from the primary judge, that there was no error in the manner in which ICAC dealt with the appellant's evidence that she was busy at the time and for that reason did not read the Determination. One of ICAC's functions was to make findings of fact as part of its determination as to whether the appellant had engaged in corrupt conduct. That was the first step required in the reasoning process as stated by Gleeson CJ in Greiner in the passage referred to above, at [104]. Having dealt with the issue, ICAC explained why it did not accept the appellant's explanation. ICAC did not engage in unreasonable reasoning in the manner in which it dealt with this issue. The matters to which it had regard were available and ICAC's reasons cogent for rejecting the explanation. 176There was no error in ICAC not then considering the possible outcome should it be incorrect in its fact finding. Indeed, to engage in that approach would conflict with the task that it is required to undertake. ICAC does not operate as a court of first instance where a trial judge may make alternate findings in the event an appellate court intervenes in its primary fact finding. 177The second argument challenging ICAC's credit findings related to an email sent on 19 September 2007, that is, after the sitting day relief forms subject of the investigation had been lodged. The appellant contended that the primary judge erred in finding that ICAC only relied on that email in relation to the appellant's credit as there was no reference to the email in that section of the report dealing with the appellant's credit. 178The appellant's argument should be rejected. ICAC commenced its consideration of the appellant's credibility, at 16, under a general heading to that effect. It made introductory comments and then dealt with three specific areas relevant to credit. One of those was areas was this email: see at 19-20. That section on its plain terms dealt with the email as a matter of credit. Thus both as a matter of structure of the report and the content of the particular section, it was clear that is how ICAC dealt with that material. This submission is rejected.

[17]

Reversal of onus 179The appellant contended that the primary judge erred in failing to find jurisdictional error in circumstances where his Honour "apparently recognised that by the time the [appellant] gave her evidence, the evidential onus may have shifted to her", when in fact no such onus did, or should have, applied. 180His Honour, at [91], rejected the appellant's argument that ICAC had reversed the onus of proof in the sense that it proceeded on the assumption that the appellant was guilty of an offence and then put the appellant to proof of her innocence. His Honour concluded, at [91], that ICAC considered that on the claim forms and other material the appellant had a case to answer. His Honour posited that ICAC may have considered that by the time the appellant gave evidence she had an evidentiary onus to dispel ICAC's view that she had a case to answer. It is not apparent to me, however, that ICAC considered that either a legal or evidentiary burden shifted during the course of the investigation. 181It is important to keep in mind that the proceedings before ICAC involved an investigation, which followed an investigation into the conduct of another member of Parliament. In the course of that earlier investigation, there was evidence that the practice of making false claims for the sitting day relief entitlement was widespread amongst members of Parliament. ICAC had thus examined the forms submitted by all members of Parliament in respect of five or more days in the period from 29 August 2006 to the end of June 2007. The forms signed by the appellant had come to light in the course of that investigation. 182The proceedings before ICAC were not legal proceedings in the adversarial sense. In this case, the inquiry involved both a private and a public hearing. Evidence had been given in the private hearing of the circumstances in which the sitting day relief forms had been signed by the appellant, including evidence of the alleged conversation between the appellate and Ms Harbilas. In addition, as is apparent from what I have said in respect of the preliminary investigation, ICAC had before it the sitting day relief forms, which on their face, were patently erroneous. In that context, ICAC stated at the commencement of its report: Ch 1, 7 that: "The possibility that the claim forms were completed in a deliberately false manner, and signed by [the appellant] knowing they were false, was serious. Such conduct, if established, would constitute corrupt conduct within the meaning of the ICAC Act. Accordingly, it was important to establish whether false claim forms had been completed and submitted and if so, whether [the appellant] knowingly made false declarations on the form." 183There was something to explain on the face of the forms. There was other material, including the emails and the conversation with Ms Schofield, that required an explanation from the appellant. The appellant was called upon to give her explanation. In asking for her explanation, ICAC was seeking to understand why the appellant had conducted herself as she did. That was also apparent from the direct questioning in which the Commissioner engaged. The fact that ICAC questioned the appellant and the witnesses as to why the forms were filled out in a particular way and the circumstances in which the appellant signed the Member's declaration on a form which contained erroneous information, did not cast a legal or evidentiary onus on the appellant. Rather, ICAC, as part of its investigation, was seeking to understand what had occurred so as to perform its statutory function. 184This challenge should also be dismissed.

[18]

Relevance of the appellant's background in industrial relations 185ICAC considered that the appellant's background in industrial relations, was relevant to the assessment of her evidence as to whether she had read the terms of the Determination in respect of the sitting day relief entitlement. Apparently, the appellant recognised this was relevant to ICAC's consideration, as one of the particulars of the second ground of appeal (particular (k)) referred to the trial judge's failure to address the "substantial irrelevance" of the appellant's industrial relations background. The matter was either relevant or it was not. In my opinion, the appellant's industrial relations background was relevant. Given that background, it would reasonable for ICAC, in conjunction with the other evidence to which it referred, to reject the appellant's evidence that she did not read the Determination. The appellant would be aware that entitlements were not as of right and may have been conditional. If they were conditional, they were dependent upon the condition being satisfied. It would be necessary, therefore, for a person seeking to access such an entitlement to familiarise themselves with its terms. 186Any person in a similarly responsible position, with or without an industrial relations background, would be cognisant of that. The fact the appellant had such a background was particularly relevant because it made it unlikely that the appellant would be unaware that it was necessary to understand the conditions upon which the entitlement was available and unlikely that she would not check upon the terms of the entitlement in circumstances where the Determination was provided to her. 187The matter of her industrial relations background being relevant, it was then a matter for ICAC to decide the weight to be attached to that matter. This was not a case where it could be said that ICAC placed undue weight on a matter of little relevance. 188I would reject the appellant's argument based on this particular.

[19]

Standard of fact finding: Briginshaw v Briginshaw 189The appellant also complained, in her amended notice of appeal, that the primary judge failed to consider whether the standard of reasoning and the probative value of facts had to be of a higher standard before a finding of corruption was made given the seriousness of such an allegation. It is difficult to know how this ground was said to arise. The appellant's written submissions recognised that ICAC had "correctly accepted [that] Briginshaw principles relating to 'reasonable satisfaction' apply". Subject to the next matter, this particular of the appellant's second ground of appeal does not arise.

[20]

Emphatic disagreement with the inference of corrupt conduct 190The appellant sought to link the previous complaint with a complaint that the primary judge should have found jurisdictional error in circumstances where he found that ICAC's conclusion as to corrupt conduct was reasonably open, even though his Honour considered that "logical or rational or reasonable minds might have disagreed, perhaps emphatically, with [ICAC's] ultimate inference". 191Once it is accepted that disagreement with a conclusion of an administrative decision maker does not constitute jurisdictional error, it matters not that the disagreement is emphatic: see SZMDS at [129], discussed above. Accordingly, this particularly challenge should also be rejected.

[21]

Conclusion 192It follows, therefore, in my opinion, the appellant has not established that the primary judge erred in not finding the decision of ICAC was infected by jurisdictional error. For that reason, it is not necessary to consider the matters raised by the respondent in the notice of contention. 193The orders I propose are: (1) Grant leave to appeal; (2) Appeal dismissed with costs. 194BASTEN JA: Ms Angela D'Amore ("the applicant") was elected a Member of the Legislative Assembly for the seat of Drummoyne in March 2003. She remained a member of Parliament until March 2011, when she resigned following a report of the Independent Commission Against Corruption ("the Commission") which found that she had engaged in corrupt conduct. 195There is no right of appeal from a decision of the Commission. However, the applicant invoked the supervisory jurisdiction of this Court to challenge the Commission's decision that she had engaged in "corrupt conduct" within the meaning of that term in the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act"). She alleged that, in making that finding, the Commission had exceeded its statutory powers. The challenge was rejected by the primary judge, McClellan CJ at CL: D'Amore v Independent Commission Against Corruption [2012] NSWSC 473. The applicant seeks leave to appeal from that judgment. 196Although the findings of the Commission did not involve serious or systemic misconduct nor misconduct which would bring the institution of Parliament into serious disrepute, the practical consequences of the adverse finding have been serious for the applicant and it is appropriate that there be a grant of leave to appeal. Nevertheless, for the reasons set out below, the appeal should be dismissed.

[22]

Nature of impugned conduct 197The issues raised before the Commission fell within a narrow compass. The circumstances relate to the resources available to Members of Parliament and the remuneration available to officers appointed to assist members. The terms of such appointment were fixed by the Parliamentary Remuneration Tribunal, pursuant to the Parliamentary Remuneration Act 1989 (NSW). Electorate officers are appointed by the Speaker of the Legislative Assembly as "minor servants of the Legislative Assembly", pursuant to the Constitution Act 1902 (NSW), s 47. The Speaker is the officer's nominal employer: Sneddon v State of New South Wales [2012] NSWCA 351 at [2]. 198Until mid-2006, members of the Assembly were entitled to two fulltime electorate officers. On 13 July 2006 the Tribunal determined that funds would be made available to members to provide for an additional (temporary) officer in the electorate office, if the member took one of her fulltime electorate officers to Parliament House. The temporary staff had to be located in the electorate office and funds to pay such staff were only available on days when Parliament was sitting. The temporary officer was known as a "sitting day relief officer". 199In contravention of the terms of the entitlement, the applicant arranged for two sitting day relief officers to work for her, not in her electorate office, but at Parliament House. The first, Ms Harbilas, worked for the applicant for a total of six days in October and November 2006. The second, Ms La Manna, worked for the applicant for a period of 12 sitting days in May and June 2007. In respect of each period, the applicant signed a form claiming remuneration stating, falsely, that the temporary officers had worked in the electorate office and that a fulltime electorate officer, Mr Nicoletti, had attended at Parliament House. 200None of these facts was in dispute: to establish corrupt conduct it was necessary to find that the applicant knew the conditions of the sitting day relief entitlement at the time she signed the claim forms. 201This was quintessentially a factual dispute, which turned on the credibility of a number of witnesses, the drawing of inferences from both oral testimony and the documentary record and from uncontested evidence. The Commission explained its reasons for coming to a finding adverse to the applicant in its report which was released in December 2010.

[23]

Grounds of challenge 202The focus of the challenge to the findings of the Commission has varied during the course of the proceedings. The amended summons before the primary judge relied on alleged errors with respect to "jurisdictional facts", although the matters identified as "jurisdictional facts" could not properly have been so characterised. In his reasons, the primary judge identified the jurisdictional fact at [43] in the following terms: "That it was reasonably open to the [Commission] to find, and the [Commission] did find, that the [applicant] knew of the conditions of the sitting day relief entitlement, and knew that she had not satisfied them, but nevertheless signed the claim forms, thereby committing the common law offence of misconduct in public office." 203In this Court, although the written submissions supported the correctness of the identification of a "jurisdictional fact" in those terms, focused on three somewhat separate complaints, namely that the Commission: (a) made findings for which there was no probative evidence; (b) drew inferences which were not reasonably open on the material before the Commission, and (c) adopted a process of reasoning which was irrational and illogical. 204In each respect, the Commission was said to have committed "jurisdictional error". Why the matter was expressed in that way was not clear: the jurisdiction of this Court, at least in the absence of a privative clause operating with respect to the tribunal under review, extends to any error of law which appears on the face of the record. For this purpose, the "face of the record" includes the reasons given by the tribunal for its ultimate determination: Supreme Court Act 1970 (NSW), s 69(4). Some errors of law will constitute jurisdictional error, but not all. Some jurisdictional errors (such as procedural unfairness) may not appear on the face of the record, but no such error was identified in the present case. Some jurisdictional errors may not involve errors of law at all, but errors in relation to what are described as "jurisdictional facts". A jurisdictional fact is a fact, the existence of which is essential to the exercise of power by the tribunal, but which is not determined by a finding of the tribunal, but rather by a finding of the reviewing court. 205The "jurisdictional fact" identified in the reasons of the primary judge was a convoluted construct. It was not really a fact at all. At best it might be understood as identifying three aspects of the knowledge and conduct of the applicant on which the ultimate finding depended, together with the characterisation that they were not "reasonably open" to the Commission. Subject to what is implied by the phrase "reasonably open" this amounts to no more than the conventional proposition that it is an error of law to make a finding for which there is no evidence. 206In this Court, senior counsel for the applicant sought to reformulate the "jurisdictional fact" as being the reasonable satisfaction of the Commission as to the constituent elements of its ultimate finding. There is some support for such an approach in the authorities, but the reason for adopting that course requires consideration. It does not permit a review for errors of law to be expanded into a challenge to fact finding by the body to which that function has been exclusively assigned. 207Before considering the nature of the complaints raised by the applicant, both in relation to the findings of the primary judge and of the Commission, it is convenient to set out the elements of what constitutes "corrupt conduct" for the purposes of the ICAC Act.

[24]

Statutory regime - "corrupt conduct" 208The definition of "corrupt conduct" is complex. Part 3 of the ICAC Act is entitled "Corrupt conduct". It provides (in s 7) that corrupt conduct is any conduct falling within s 8(1) and (2) and not excluded by s 9. Section 8(1) includes any conduct "that could adversely affect... the honest or impartial exercise of official functions by any public official" or that constitutes or involves dishonest or partial exercise of official functions or a breach of trust or misuse of information: s 8(1). Section 8(2) expands that definition to cover any conduct of any person that could adversely affect "the exercise of official functions" (without reference to honesty or impartiality) and which could involve a non-exclusive list of unlawful activities. Paragraph 8(2)(a) refers to "official misconduct" (including breach of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition) and paragraph 8(2)(e) refers to "fraud". Invoking each limb of s 8(1) and paragraphs (a) and (e) of s 8(2), the Commission found (Report, p 27) that the applicant's conduct:

adversely affected, or could have adversely affected, either directly or indirectly, the honest or impartial exercise of official functions by Ms Harbilas (that is, those functions connected with making true statements on claim forms and submitting true claim forms to Parliament for approval after they had been signed by the Member), and therefore comes within section 8(1)(a) of the ICAC Act
constituted or involved the dishonest or partial exercise by Ms D'Amore of her official functions, and therefore comes with section 8(1)(b) of the ICAC Act
constituted or involved a breach of public trust on the part of Ms D'Amore, and therefore comes within section 8(1)(c) of the ICAC Act
adversely affected, or could have adversely affected, either directly or indirectly, the exercise of official functions by Ms Harbilas, and parliamentary officers (that is, those functions connected with determining an application for payment for sitting day relief) and could involve official misconduct or fraud, and therefore comes within sections 8(2)(a) and 8(2)(e) of the ICAC Act. 209As recognised in s 7, s 9 imposes certain constraints on the generality of the definition in s 8. So far as relevant, s 9 provides: 9 Limitation on nature of corrupt conduct (1) Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve: (a) a criminal offence, or ... (d) in the case of conduct of a Minister of the Crown or a member of a House of Parliament-a substantial breach of an applicable code of conduct. ... (4) Subject to subsection (5), conduct of a Minister of the Crown or a member of a House of Parliament which falls within the description of corrupt conduct in section 8 is not excluded by this section if it is conduct that would cause a reasonable person to believe that it would bring the integrity of the office concerned or of Parliament into serious disrepute. (5) Without otherwise limiting the matters that it can under section 74A(1) include in a report under section 74, the Commission is not authorised to include a finding or opinion that a specified person has, by engaging in conduct of a kind referred to in subsection (4), engaged in corrupt conduct, unless the Commission is satisfied that the conduct constitutes a breach of a law (apart from this Act) and the Commission identifies that law in the report. 210Regarding s 9, the Commission held (Report, p 27) that the applicant's conduct fell within:

[25]

Grounds for judicial review 223As indicated above, there is no complaint that the Commission misunderstood or misstated the relevant legal elements it was required to address, nor that there was a denial of procedural fairness. Rather, the applicant complained of an absence of probative material sufficient to support the ultimate finding and that the Commission's reasoning to its ultimate finding of corrupt conduct was irrational and illogical. 224It is not in doubt that the absence of material capable of supporting a finding on a material issue constitutes an error of law: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [91]. The attack upon the reasoning process as illogical or irrational is less well established as a ground of review. There is, for example, the statement of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356: "Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place." 225In response, the applicant invoked a line of authority in the High Court dealing with review of administrative decisions the validity of which depended upon the satisfaction of the decision-maker as to the existence of conditions precedent to the exercise of a power or discharge of an obligation. Thus, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992, dealing with the Minister's power to grant a protection visa under s 65 of the Migration Act 1958 (Cth), Gummow and Hayne JJ stated at [38]: "The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds." 226As explained by Sackville AJA in Allianz Australia Insurance Ltd v Roads and Traffic Authority of NSW [2010] NSWCA 328; 57 MVR 80 (albeit in the context of s 43A of the Civil Liability Act 2002 (NSW)) a decision arrived at irrationally may be a reasonable decision and a decision may be unreasonable although arrived at by a process of logical reasoning. To describe a particular determination as irrational or illogical may be to criticise the reasoning by which the decision-maker reached that determination, or, which is a different matter, it could imply that the decision was one which could not be reached by rational or logical reasoning from the available material. 227The modern line of Australian authority derives, as explained in the judgment of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [133], from the judgment of Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430 and 432. In particular, Latham CJ stated at 432: "If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide." 228There is, as noted by Aronson and Groves, Judicial Review of Administrative Action (5th ed, 2013), a link between what is described as the "relevancy grounds" and "irrationality". Thus a decision which can be characterised as capricious, arbitrary or irrational, is likely to be one based on considerations which have no legal relevance to the exercise of power and made in disregard of those considerations which are required by law to form the basis of the exercise of power: at [5.10] and [5.20]. Nevertheless, the authors identify the "primary focus" of such grounds as "the impugned decision-maker's reasoning processes": at [5.10]. However, this analysis does not engage with the question as to whether it is the decision, objectively viewed, which is to be assessed, or the process of reasoning actually adopted by the decision-maker, to the extent that there are reasons which reveal that process. 229There is also a question as to whether illogicality or irrationality can form the basis of challenge to findings based on the primary evidence and intermediate steps, such as inferences drawn from those findings, or only to the ultimate issue. This question was noted by Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [150]-[158]. No conclusion was required but doubt was expressed as to the correctness of the approach limited to the ultimate issue. In this Court, the more limited approach is supported in relation to judicial decisions by the following passage in the judgment of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 5 NSWLR 139 at 156-157: "Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation." 230At least in respect of administrative decision-making, that proposition must be qualified in circumstances where the "patent error" involved a sufficiently serious failure to deal with part of an applicant's claim that it constitutes a failure to exercise a jurisdiction. As explained in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, at [46]-[47] by French, Sackville and Hely JJ: "It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason .... The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advance on behalf of an applicant and contentions made by the applicant on that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked." 231Similar reasoning was applied in Paul v Minister of Immigration and Multicultural Affairs [2001] FCA 1196; 113 FCR 396 at [79] (Allsop J); Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] (Allsop J); Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533 (Weinberg J); SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24] (Selway J); SZRKT at [69] and [111] (Robertson J); Goodwin v Commissioner of Police [2012] NSWCA 379 at [19]-[23]; see also Aronson and Groves at [4.770]-[4.780]. 232Underlying these issues is the beguiling simplicity of the proposition that the reviewing court is not concerned with "the merit" of the decision, but the legal boundaries of power. To say that the decision-maker (absent a right of appeal) is the sole authority with exclusive power to determine how a particular dispute or other matter should be resolved, usually leaves an area of imprecision in identifying the limits of the power. 233Where a decision-maker has taken into account an irrelevant consideration, as long as it is not clearly immaterial to the reasoning process, a principled approach demands intervention by the court because the alternative course would involve the court deciding how the decision-maker would have resolved the matter had the irrelevant consideration not played some part in the decision-making process. 234In other cases, the reasoning process will not reveal such error, but the decision itself, when considered in the light of the available material, may indicate on the probabilities that the decision-maker, acting reasonably and taking into account only those things which were appropriate to be taken into account and disregarding those things which were not permissible considerations, and applying the relevant legal tests, could not have reached the result in fact reached, from which it is inferred that some relevant but unidentifiable legal error has been made. That is a case where error is determined because the result can be categorised as illogical or irrational because it could not have been reached by sound reasoning: cf SZRKT at [148]. 235This analysis is consistent with the current understanding of the "no evidence" ground. In this context, "evidence" means material which could rationally affect the decision-maker's assessment of the probability of the facts in issue: see Amaba Pty Ltd v Booth [2010] NSWCA 344; [2011] Aust Torts Rep 82-079 at [22]-[24] and see generally, Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298 at [89]-[93]. 236So understood, the applicant's formulation of her grounds of review should be accepted as available. 237In the Court below, the primary judge identified a ground based on "irrational or illogical inferences" as "more controversial" than the conventional "no evidence" ground, because the former had its "foundation in the various High Court migration cases cited by the plaintiff": at [49]. The primary judge also noted the submissions for the Commission, suggesting that the "migration cases" arose in a different statutory context and were not directly applicable: at [56]. However, because the Commission was willing to "assume that illogicality is a ground of review under the Act" the doubts about the status of the "migration cases" were put to one side: at [57]. The primary judge also noted that the discussion in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 and like cases arose in a federal context in which "[t]he doctrine of jurisdictional error has constitutionally entrenched significance": at [82]. He concluded that "irrationality or illogicality in jurisdictional fact-finding under a State statute may constitute jurisdictional error warranting the intervention of this Court": at [84]. 238Because the respondent in this Court sought to marginalise the "migration cases", it is desirable to emphasise that the supposed distinctions are without substance. 239The somewhat obscure suggestion that cases involving ss 36 and 65 of the Migration Act fall into a different category in respect of judicial review of administrative decisions because those provisions give effect to Australia's obligations under an international convention ignores the history relied upon by Gummow J in Eshetu and followed in subsequent cases. The principles were developed partly in the context of review of industrial tribunals (as in the case of Hetton Bellbird Collieries). That is not to deny that the principles must be applied having regard to the specific statutory context in which they are invoked: Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208 at [77]-[83]. 240The suggestion that the principles are different in State jurisdiction is also fallacious. First, since Kirk v Industrial Relations Commission [2010] HCA 1; 239CLR 531, it is apparent that the supervisory jurisdiction of the State Supreme Court is constitutionally entrenched. Secondly, the two cases most commonly cited as establishing basic principles of judicial review both arose under State law: see Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1 and Craig v South Australia [1995] HCA 58; 184 CLR 163. Such a view is also inconsistent with a long line of authorities in this Court and other State Supreme Courts. It obtains no support in any decision of the High Court. 241The third basis of constraint is the suggestion that the "irrationality ground" is restricted to review of "jurisdictional facts". Such a view, however, is misconceived for three reasons. First, a "jurisdictional fact" in the conventional sense of the term is a limit on power to be established to the satisfaction of the reviewing court, not the administrative decision-maker. Secondly, where the exercise of a power, or discharge of an obligation, is dependent upon the state of satisfaction of the decision-maker as to certain matters, the state of satisfaction is a jurisdictional fact of a peculiar kind. The reviewing court is not required to be satisfied of the existence of the underlying subject-matter of the opinion. The language of "satisfaction" or "opinion" is a statutory device to ensure that the matters identified as preconditions to the exercise of power are indeed not jurisdictional facts, but facts which need only be established to the satisfaction of the decision-maker. Nor do they become jurisdictional facts by describing the state of satisfaction as a jurisdictional fact. (It might be better to describe the properly formed state of satisfaction as a precondition to a valid exercise of the power.) Thirdly, if irrationality can be revealed by the reasoning process disclosed in the reasons, it may constitute an error of law on the face of the record. No basis for treating the ground as only relevant to "jurisdictional facts" has been identified.

[26]

Challenged findings 242The challenge mounted by the applicant, both before the primary judge and in this Court, focused on the finding that the applicant "knew that the entitlement to sitting day relief payments depended upon the sitting day relief officer working at the electorate office when the electorate officer worked at Parliament House on sitting days": Report, p 26, col b. 243The evidence which allowed the Commission to make an affirmative finding as to the applicant's state of knowledge fell within a number of categories. The contrary evidence was largely to be found in the applicant's own denials. The conclusion is inescapable that there was material on the basis of which the Commission was entitled to disbelieve the applicant's denials, and it did so. In the result, the submissions for the applicant involved a detailed forensic analysis as to why the Commission should not have taken that course, given emphasis by the need to demonstrate that it was "not open" to the Commission to reach the conclusions that it did. 244At the heart of the case against the applicant was a finding that she directed the temporary officer, Ms Harbilas, to fill out a sitting day relief claim form so as to represent, falsely, that Mr Nicoletti had worked at Parliament House on the relevant days and that she had worked in the electorate office. It was not in doubt that the statement in the claim form was factually untrue. Nor was it in doubt that if a correct statement had been made the payments would not have been available. Ms Harbilas gave evidence that the applicant instructed her to make the statement. If that evidence were to be accepted, as it was, the inference was readily available that the applicant was aware of the requirements with respect to such a claim, or otherwise the instruction would have been purposeless. 245A number of independent factors supported the conclusion that the applicant knew the terms under which sitting day relief was available. First, there was the fact, accepted by the applicant, that she wanted extra staff assistance. Counsel submitted that such evidence "does nothing to establish knowledge of the restriction on placement of the short term relief officer": written submissions, par 95. However, that statement missed the point of the Commission's reliance upon her interest. A person who has such an interest is likely to take note of the circumstances in which the assistance is available, when she is told of its availability. 246The first indication of its availability was the Tribunal's report and determination of July 2006. That was provided to her by email, which she opened. A hard copy was also provided to the applicant. The Commission noted that she had experience as a research officer and assistant industrial officer for a union. The Commission concluded that it was likely that she had read the determination of the Tribunal because she "had a general interest in industrial matters, was experienced - generally - in industrial issues, particularly awards, knew that a submission for additional staff had been made to the Tribunal, and personally wished to obtain an additional staff member on sitting days": Report, p 17. 247The Tribunal also noted that the applicant accepted she had a responsibility as a member to acquaint herself with the restrictions on entitlements and that, had she read the determination, she "would have appreciated the conditions upon which the sitting day relief entitlement could be claimed": Report, p 18. 248The substance of the applicant's complaint about this conclusion is that the Commission failed to address and consider her evidence that she had not read the determination or, if she had, had failed to grasp the particular issue. However, the Commission did note that she had "advanced a number of reasons by way of explanation for her failure to read it, including that she was busy at the time she received the email, that she was not following the issue of additional staffing closely, that it may not have occurred to her at the times that she received the copy of the Determination in which the Tribunal had dealt with the submission for additional staffing, and that, although she regarded the determination as an important document, she relied upon a ledger sent to her by Parliament at the start of each financial year that quantified her available allowances": Report, p 17. 249The submissions for the applicant in this Court complained that the Commission had failed to address and consider her explanation. One point not noted by the Commission in the passage set out above, which was dealt with in the following paragraphs of the Report, was her evidence that she was using a Blackberry at the time and that, if she had opened her email on the Blackberry, she would not have read the attachment: submissions, par 80. Further, the applicant gave evidence that she was "heavily pregnant" between 29 August 2006 and 11 September 2006, when the entitlement policy was introduced. In mid-September, she experienced "an extremely fierce pre-selection battle". Her child was born on 12 September 2006. These matters were not expressly adverted to by the Commission. 250The criticism is without merit: the issue was quite straightforward, namely whether the applicant had read and understood the terms of the Tribunal's Determination, as a basis for inferring that she knew of the restrictions on the new entitlement to sitting day relief. The Commission expressly stated that it had had regard to her explanations, which it referred to as "including" the matters which it identified. There is no reason to suppose that the list was intended to be exhaustive, nor that the Commission ignored other calls on her time. The reference to use of a Blackberry was dealt with by the Commission, but in relation to the next factor demonstrating knowledge. The Commission's reasons in this respect exceeded any minimum legal requirement, even had the Commission been a court. The finding itself was unremarkable. 251The second basis for inferring the applicant's knowledge of the staffing entitlements was a memorandum dated 18 August 2006 provided by the Manager of Employee and Corporate Services, Parliament House, attaching a draft policy and Statement of Administrative Practices, and seeking comment. The document included a blank claim form. 252Again the Commission was satisfied that the applicant opened the email, a fact which she did not dispute. It was in this context that she said it was possible that she had opened the email using a Blackberry, in which case she would not have read the attached documents. 253There was evidence from the Manager, Ms Elaine Schofield, that the applicant rang her after receiving the documents and complained in vigorous terms about the lack of adequate computer facilities. The Commission noted the applicant's contention that the conversation may not have resulted from her reading the documents provided on 19 August 2006, but rejected that conclusion as "improbable": Report, p 19. 254The Commission then referred to the fact that the determination had remained in force until 30 August 2007, when it was superseded by a new determination. The applicant's evidence with respect to her knowledge of the new determination was similar to her evidence with respect to the earlier determination. The Commission rejected her evidence, noting that her "expressed indifference to the email and its content was a pretence": Report, p 20. It considered she was reluctant to admit that she had read the email "because she realised it referred to the requirement in the 2006 Determination that the sitting day relief officer should be engaged to work at the electorate office and that she was anxious to avoid admitting knowledge of this issue". 255The applicant's written submissions in this Court noted that, if the Commission in making the last finding had gone beyond a finding going to credit, it had engaged in "obvious logical error": submissions, par 86. However, the Commission's approach was not illogical. If the applicant's evidence as to her indifference to the content of the 2007 email had been accepted, it might have provided the basis for a different conclusion with respect to the 2006 emails, necessitating a further step in the Commission's reasoning. Its rejection of that evidence rendered the further consideration unnecessary. 256Chronologically, the next relevant factor was the terms of the declaration on the claim form. Of course, once it is accepted that the applicant was aware of the terms on which the entitlement was provided from the earlier documents, which included a copy of a draft claim form, the terms of the claim forms actually signed by the applicant are of lesser significance than they would have been, had the applicant not had prior knowledge of its printed content. 257The layout of the forms, copies of which were in evidence before the Commission, varied over the period September 2006 until June 2007. However, in each case the second half of the page contained a box which was signed by both the Member and the relief officer. Above their respective declarations there were three columns, the column on the right hand side of the page was for completion by the officer processing the claim at Parliament House. On the left, and immediately above the Member's declaration, there were two columns to be completed, they appeared as follows: DATE NAME of employment of relief staff in the electorate office of electorate officer working at Parliament House Mon Tues David Nicoletti Wed Thurs Friday

[27]

Member's Declaration: The electorate officer nominated above worked at Parliament House and temporary staff worked at my electorate office on the sitting days the relief staff entitlement has been claimed. Name: Angela D'Amore MP Signature: Date: 258The statement made by the relief employee, which appeared alongside the declaration made by the Member was in the following terms: "Relief Electorate Officer: I worked at the above electorate office on the days claimed for employment. I understand the rate of pay is an "all incidents" of employment rate in lieu of casual loading. A standard 7 hours per day will be worked and no overtime payment will made." 259Even a person who had no prior knowledge of the conditions of the entitlement, upon reading the claim form could have been in little doubt as to the requirement that the relief officer work at the electorate office because the electorate officer was in Parliament House. The applicant gave evidence that she did not read the forms prior to signing them. Although she signed in the box marked "Member's declaration" she gave evidence that she attached no significance at all to the words "Member's declaration" and did not ever read them. The Commission set out an extract from her evidence (Report, p 20-21) and concluded at 21: "In the Commission's view, Ms D'Amore's responses in the above exchange are unconvincing. In the commission's view, it is highly unlikely that Ms D'Amore would not have read the words 'Member's Declaration' when signing the forms." The reasoning, based on the evidence given and the language of the forms covered pp 20-23 of the Report. 260The forms relating to Ms Harbilas were signed on 26 October 2006 and 16 November 2006. She was on maternity leave up to 24 October 2006 and thereafter was caring for her newborn child both in Parliament House and in her electorate office. 261It was open to the Commission to find that her explanations with respect to signing the claim form were unconvincing. In addition to the simple language of the declaration being made, the Commission noted that immediately above her signature was the statement of Mr Nicoletti as the name of the electorate officer working at Parliament House. The Commission stated at p 23: "The Commission has had careful regard to the forms in question and Ms D'Amore's evidence in regard to Mr Nicoletti's name on them, but is unconvinced by Ms D'Amore's explanation. It is unlikely that a Member of Parliament, signing sitting day relief forms filled out, as were the forms signed by Ms D'Amore, would not notice that Mr Nicoletti's name had been inserted in them as being the name of the electorate officer attending Parliament House on the days for which sitting day relief was being claimed. Had Ms D'Amore noticed Mr Nicoletti's name on the forms in the box headed 'Name of electorate officer working at Parliament House' (and the Commission finds that it is probable that she did notice Mr Nicoletti's name in that box), she must immediately have realised that the representation that Mr Nicoletti had worked at Parliament House was false. Accordingly, the format and the make-up of the forms, the words printed on them, and the way they had been completed before being presented to Ms D'Amore for signature, render Ms D'Amore's denial that she was aware of the details contained in them improbable." 262Counsel for the applicant, both in written submissions and orally, placed weight on the Commission's findings with respect to the evidence of Ms Harbilas. However, the use to be made of her evidence with respect to the applicant's knowledge of the conditions of the entitlement must be seen in context. The several bases for accepting that the applicant had such knowledge arose prior to the period in October 2006 when Ms Harbilas was employed. 263Ms Harbilas and the applicant had a conversation one or two weeks prior to Ms Harbilas starting work as a sitting day relief officer at Parliament House. Although there were elements of disagreement as to the terms of the conversation, the Commission was satisfied that the arrangement was that Ms Harbilas would work at Parliament House, as in fact she did: Report, p 14. The Commission noted: "Ms Harbilas said that she understood from reading the form that an electorate officer was required to work at Parliament House and that her entitlement to be paid by Parliament as a sitting day relief officer depended upon her working at the electorate office. It is plain from the form that Ms Harbilas' understanding was correct." 264She stated that the applicant had told her to fill out the form by inserting Mr Nicoletti's name. She said that she thought she was "doing the wrong thing", evidence which, in the view of the Commission, had "the ring of truth": Report, p 15. 265There was no doubt that Ms Harbilas' credibility was under challenge. When first approached by investigators for the Commission, she denied that she had worked at Parliament House and claimed she had worked at the electorate office. She later changed that evidence and agreed that she had given her earlier answers "in order to protect Ms D'Amore and stop the investigation": Report, p 15. There was also a dispute in relation to the content of a telephone conversation between the applicant and Ms Harbilas during the time of the Commission's investigation. Further, in her evidence to the Commission, she accepted at one point that she had "no independent recollection" of the applicant's instruction to write Mr Nicoletti's name on the form and later stated that she did not know who Mr Nicoletti was. 266In respect of the absence of independent recollection, the Commission was satisfied that she was intending to indicate that she had no recollection of the specific words used but remembered the "gist" of the conversation. With respect to the denial of knowledge of Mr Nicoletti, the Commission accepted that her answer was made "in an argumentative way, in response to questioning that was imputing dishonesty on her part": Report, p 16. 267The applicant accepted in her written submissions that the Commission had given "lengthy reasons for preferring the credibility of Ms Harbilas over the applicant". Counsel for the applicant took the Court in some detail through the evidence given by Ms Harbilas and the applicant. However, it was undoubtedly open to the Commission to accept Ms Harbilas' evidence that the applicant had told her to place Mr Nicoletti's name on the form in the box provided, although he had not attended at Parliament House and she, Ms Harbilas, had not worked in the electorate office. The applicant was cross-examined in respect of that evidence by counsel assisting (Tcpt, 8/10/2010, p 414): "Now, you've heard what Ms Harbilas said, haven't you? - Yes, I have. You've heard that she said to you, 'Whose name do I put there?' - Yes, I've heard her say that. Right. And, and she said that you said, 'Put David Nicoletti's name.' And that's what she appears to have done? - I did not tell her, I do not remember at all telling her or giving her instructions on how to fill out this form. THE COMMISSIONER: It's, Ms D'Amore, it's of genuine concern to me to really try and understand how it could come about that Ms Harbilas would put the name David Nicoletti down on this form of her own accord, out of the blue, as it were. Can you offer any suggestion for that? - Commissioner, unfortunately I can't and I can't speculate how that occurred either. There seems to be no motive that I can think of for her deliberately to put Mr Nicoletti's name on the form when she of all people would know that that was completely false. Can you? - Commissioner I have no idea. I cannot answer that question." 268The applicant criticised an opening statement of the Commission, in a section entitled "Overview", where the Commission stated that the applicant had "vigorously denied any such conversation and that she had given Ms Harbilas any such instruction": Report, p 12. The complaint is that she was merely denying any recollection of the conversation and not denying that the conversation had occurred at all, let alone vigorously. The complaint is of little substance: the evidence did appear to be a denial of the instruction, followed by a denial of recollection of the conversation. It may well have been a vigorous denial. It is outside the role of this Court to assess such complaints. 269The remainder of the complaints concern the uncertainty as to the context in which the conversation occurred and as to the part of the form upon which Mr Nicoletti's name was to be placed. Viewed in the abstract, the evidence was ambiguous. However, there was no reason to view the evidence in the abstract: the Commission had made findings as to the existing state of the applicant's knowledge as to what the entitlement required; the form completed by Ms Harbilas was then signed by the applicant. If, as the Commission accepted, the applicant was aware of the information immediately above the declaration she signed, her failure to correct the information was consistent with it being in accordance with her instruction.

[28]

Conclusion 270In the course of oral submissions, counsel for the applicant called in aid the statement of Gummow J (then on the Federal Court) as to the need for a decision-maker to give "proper, genuine and realistic consideration" to the material relevant to the resolution of a dispute: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; 14 ALD 291. That language derives from the statement of principles applicable to judicial review of the exercise by a trustee of an unfettered discretionary power: see, eg, Karger v Paul [1984] VR 161 at 163 (McGarvie J). However, as counsel accepted, this language was not a licence for impermissible review of the merits of the case: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30]. As the Court further stated: "34 It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to 'any rational, reasonable approach to the evaluation' and the need for 'a proper, genuine or realistic evaluation' of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant. ... ... 36 The conclusion that the Tribunal erred in giving 'no weight' to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions." 271The invitation by the applicant in the present case to review the detailed and thorough reasoning of the Commission smacks of a similar exercise. The primary judge did not express disagreement with the conclusion reached by the Commission, let alone describe it as irrational or unreasonable. He was correct not to do so. There is no reason to doubt that the Commission gave adequate attention to all of the material before it and expressed its reasons for accepting certain evidence, rejecting the evidence of the applicant in large part and making adverse findings. 272The objective information available to the applicant, by way of documents supplied to her and the claim forms signed by her, gave an ample basis for the conclusion that she had indulged in corrupt conduct in the way the Commission found. A contrary conclusion required acceptance of critical aspects of the applicant's own evidence. The Commission held (Report, p 16): "She was often unwilling to answer difficult questions candidly, and inclined to evade questions by using carefully chosen words that were intended to place her version of events in a better light. At some points in her evidence, Ms D'Amore simply refused to provide responsive answers to questions, despite being repeatedly asked to do so. She did not impress as a reliable witness." 273Without the benefit of having observed and heard the evidence being given, the transcript of the applicant's evidence indicates that such findings were not only open, but unremarkable. 274The attempt to have this Court revisit factual findings in the absence of legal error was, in effect, an attempt to conduct an appeal by way of rehearing. That exercise was not available to the applicant, the Court being limited to the restricted role provided by the supervisory jurisdiction under s 69 of the Supreme Court Act. 275It follows that the primary judge was correct to dismiss the summons. The appeal from that judgment should be dismissed. No objection was taken to the role played by the Commission in this Court (or before the primary judge); accordingly, the applicant must pay the Commission's costs in this Court.

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Amendments 18 July 2013 - Orders on coversheet and at [193] amended pursuant to UCPR, r 36.17Typographical errors at [69], [224] and [237] corrected Amended paragraphs: Coversheet, [69], [193], [224], [237] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2013

D'Amore v Independent Commission Against Corruption

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