Duncan v The Honourable David Andrew Ipp AO QC and Ors

Judgment 1HIS HONOUR: Nature of proceedings The plaintiff moves by way of summons for the following orders: "1. An order restraining the first defendant (the Commissioner) from further presiding over or otherwise participating in, any public inquiry in respect of the investigation styled 'Operation Jasper' being conducted by the second defendant (the Commission), or any other investigation conducted by the Commission into matters falling within the scope of Operation Jasper, as amended on 1 and 12 November 2012. 2. An order restraining the Commission, by its officers, employees or agents, from preparing, furnishing to the Houses of the Parliament of New South Wales or otherwise publishing, any report in relation to any matter that is the subject of Operation Jasper, to the extent that such report is based on any evidence that was heard or adduced in any compulsory examination or public inquiry presided over by, or involving the participation of, the Commissioner. 3. An order restraining the Commissioner from preparing, or otherwise participating in the preparation of, any report prepared, furnished to the Houses of the Parliament of New South Wales, or otherwise published, by the Commission in relation to any matter that is the subject of Operation Jasper. ..." 2The Commissioner has filed a submitting appearance, as has the Commission. Leave was granted to the Attorney-General to be joined as the third defendant in order to fulfil the role of contradictor. This was done, having regard to what was said in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13. 3The parties provided to the Court a Joint Tender Bundle (JTB) which consolidated all of the documents which they proposed to tender. The JTB was prepared subject to each party's right to object to the tender of particular documents. The Attorney-General has objected to the documents commencing at JTB pp 6, 16, 18, 91, 98, 99 and 102. The basis of the objection is that none of those documents had been made public at any time and were not properly matters to be considered by a hypothetical "fair minded and informed observer". 4While the Attorney-General maintained that objection at the hearing, he submitted that it mattered not to the ultimate outcome as to whether those documents were considered. Accordingly, he was prepared to argue the matters raised in this application on the basis that the contents of those documents would be known to a "fair minded and informed observer". In the circumstances, I have proceeded on the basis that the contents of those documents are matters properly to be taken into consideration. 5That having been said, the stance adopted by the Attorney-General, in my opinion, relies too heavily upon what was said by Handley JA in Wentworth v Rogers [2000] NSWCA 368, which was a case very much dependent upon its own particular facts. In response, the plaintiff has marshalled a substantial body of authority to contrary effect: Webb v The Queen [1994] HCA 30; 181 CLR 41, Deane J at 73, CUR 24 v DPP [2012] NSWCA 65, Meagher JA at [39]; Gwandalan Summerland Point Action Group Inc v Minister for Planning & Ors [2010] 75 NSWLR 269 at [131]. 6An objection to the document at JBT p 91 was raised on a separate basis, i.e. that it did not come within any of the exceptions in s69 of the Evidence Act 1995 (NSW). I will deal with that objection in due course. Factual background and chronology 7On 11 November 2011 a resolution was passed by the Legislative Assembly of NSW that: "1. Pursuant to s73 of the Independent Commission Against Corruption Act 1988, this House request the Independent Commission Against Corruption (ICAC) to inquire into and report with respect to: (a) The circumstances surrounding the application for and allocation to Doyles Creek Mining Pty Ltd of Exploration Licence No 7270 under the Mining Act 1992 (NSW) (Mining Act); (b) The circumstances surrounding the making of profits, if any, by the shareholders of NuCoal Resources NL as proprietors of Doyles Creek Mining Pty Ltd; (c) Any recommended action by the NSW Government with respect to licences or leases under the Mining Act over the Doyles Creek area; (d) Any recommended action by the NSW Government with respect to amendment of the Mining Act; and (e) Whether the NSW Government should commence legal proceedings, or take any other action, against any individual or company in relation to the circumstances surrounding the allocation of Exploration Licence No 7270. (2) As deemed necessary, the Commissioner may also inquire into any related matters. (3) A message be sent to the Legislative Council informing it that the Legislative Assembly has this day agreed to the resolution and, pursuant to s73 of the Independent Commission Against Corruption Act 1988, request the Legislative Council to pass a similar resolution." Operation Jasper 8On 23 November 2011 a resolution in similar (and in substance the same) terms, as passed by the Legislative Assembly on 11 November 2011, was passed by the Legislative Council. 9On 7 August 2012 the Commission announced that it would hold a Public Inquiry commencing 1 November 2012 in respect of Operations Jasper, Acacia and Indus. These names were allocated to investigations by reference to their geographic location. For example, Operation Acacia related to the allocation of an Exploration Licence (EL) for Doyles Creek and Operation Jasper related to the allocation of an EL for Mount Penny. 10The announcement included the following statement: "Further, Operation Jasper will examine: The circumstances surrounding the decision by the Department of Primary Industries in November 2008 to reopen the expression of interest process for the awarding of exploration licences area and extend further invitations to additional mining companies, including Cascade Coal Pty Ltd; the circumstances in which exploration licences were awarded for Mount Penny (EL 7406) and Glendon Brook (EL 7405); whether confidential information relating to the expression of interest process for Mount Penny (EL 7406) and Glendon Brook (EL 7405) was provided to, and used by, persons associated with Cascade Coal Pty Ltd ..." 11On 24 August 2012 the Department of Planning and Infrastructure (DPI) requested an urgent advice from the Crown Solicitor as to whether the planning Minister (Mr Hazzard) could cease assessment of the application by Mount Penny Coal Pty Ltd (the relevant subsidiary of Cascade) pending the outcome of Operation Jasper. 12On 27 August 2012 the Crown Solicitor provided an advice to the DPI to the effect that there was no legal requirement for the Planning Minister to cease, temporarily or permanently, the assessment of the Mount Penny project application in order to await the outcome of Operation Jasper, and that it was not legally permissible for him to do so. The advice warned that if the assessment of the Mount Penny project ceased, whether temporarily or permanently, Mount Penny Coal could seek a "merits review" or a "judicial review" of the decision. The advice concluded that under the current legislative regime, the Minister did not have any lawful option to cease the assessment of the Mount Penny application in order to await the outcome of Operation Jasper. 13On the same day, two aspects of that advice were clarified by the Crown Solicitor. The phrase "not legally permissible" was intended to mean "no lawful basis" in the administrative law sense, and that even if the exploration licence was held to be invalid on the basis that it had been obtained by fraud, this would have no effect on the validity of the approval of the project application. 14On 7 September 2012 Mr Galasso SC provided an opinion to the DPI which generally agreed with the conclusions of the Crown Solicitor. 15On 25 October 2012 the Planning Minister (Mr Hazzard) is recorded by Hansard as saying in the Legislative Assembly: "Having in mind that this application is on foot concurrently with the Independent Commission Against Corruption inquiry, it seems to me that a reasonable individual would ponder why the Government is allowing this application to proceed. Let me make it clear that, as planning Minister, I have explored whether it is legally possible to suspend or terminate the current Cascade Coal application. Accordingly, I requested and received Crown Solicitor's advice. I also obtained counsel's opinion. Whilst it is not appropriate to disclose the full details of those advices, I can tell the House that counsel advised that: "As a matter of planning law, any grant of rights in relation to the project ... is a grant in rem attaching to the land, but is not a grant of rights in personam, given to a particular person." That is, a development application attaches to the land and not to the individual applicant. Furthermore, counsel's opinion stated: "How or why a person came to become the owner of land or the proponent for development is not necessarily a relevant consideration within the scheme of the Act." That is, although the application may have come into existence as a result of corrupt practices, that corruption does not stop or necessarily taint the development application process. Furthermore, if the application proceeds, it must be dealt with as all applications are dealt with, irrespective of the origin of the original entitlement to bring the application. That is, the application must be dealt with on merit. Hence, in my opinion, a decision by me or by the Department of Planning and Infrastructure to forcibly defer the assessment of the application or to terminate the assessment would provide potential grounds for the applicant to appeal in the Land and Environment Court. A decision adverse to the Government's application in the Land and Environment Court would also run the risk of a court order for costs being made against the Government." 16On 12 November 2012 the public inquiry, with respect to Operation Jasper, commenced before the Commission. The scope and purpose of the public inquiry was announced by the Commissioner at the commencement of public hearings on that date and a document setting out those matters was published. Relevant parts of that document were: "5. The circumstances surrounding the decision by the Department of Primary Industries in November 2008 to reopen the expression of interest process for the awarding of Exploration Licence areas and to extend further invitation to additional mining companies including Cascade Coal Pty Ltd and Mr MacDonald's role in these decisions. 6. The circumstances in which Exploration Licences were awarded in respect of Mount Penny (EL 7406) ... and how the holders of those licences have dealt with them. 7. The actual and potential financial benefits of the award of the Mount Penny and Yarrawa tenements to those parties who have or have had a direct or indirect interest in those tenements, whether by way of a holding of shares or as a trust beneficiary or otherwise. 8. Without detracting from the generality of paragraph 7, the actual and potential financial benefits to Cascade Coal Pty Limited and investors in that company including Travers Duncan ... of the award of the Mount Penny tenement to Cascade Coal Pty Ltd. 10. Whether Mr MacDonald or any member of his personal staff or any employee of the Department of Primary Industries ... provided confidential information relating to the expression of interest process in respect of the Mount Penny and Yarrawa tenements to members of the Obeid family or persons associated with Cascade Coal Pty Ltd. ... 17. Whether Cascade Coal Pty Ltd, Messrs Duncan .... attempted to mislead the NSW Government by concealing the involvement of members of the Obeid family in the acquisition of and dealings concerning the Mount Penny tenement." 17Between November 2012 and March 2013 the Commission conducted public hearings in relation to Operation Jasper. The Commissioner indicated his intention to bring down reports in relation to Operations Indus, Jasper and Acacia before July 2013. In the course of his opening remarks, the Commissioner said: "The opening statement of counsel assisting is designed to further a number of ends. Its principal purpose is to make an early public statement as to the nature of the important allegations which the inquiry will investigate. Reference will be made only to some of the evidence on important matters. Affected persons will thereby be given as reasonable an idea as is possible at this stage of the import of and the context in which allegations have been made." (JTB 45S-T) 18In the course of that opening statement, counsel assisting said: "132 Through a circuitous route which will be described later, a company called Cascade Coal Pty Ltd eventually acquired the Exploration Licence for the Mount Penny tenement." (JTB 67R) "173 In the original call for expressions of interest (EOI), the Department of Primary Industry cut off dates for submissions at 24 November 2008. 174 On or about 3 December 2008 the Department of Primary Industry announced that it was suspending the EOI process, and reopened it so that new bidders could participate. 175 The evidence suggests that the ordinary EOI assessment process was interrupted at the direction of Ian MacDonald. His reasons for doing so set off yet another branch in this inquiry. Investigations so far suggest that it might be that Mr MacDonald was influenced to reopen the EOI process because of an approach made to him by Travers Duncan. 176 Travers Duncan is an important figure in the Australian coal industry - in fact, I understand that he revels in being known as "Mr Coal". Mr Duncan is a civil engineer who founded a coal mining company, Felix Resources Ltd. In 2009 a Chinese company, Yanzhou Coal, bought out Felix Resources for $3.5 billion. ... 177 A decision to reopen a governmental competitive bidding process is, by itself, unusual. ... 178 The issue is particularly important here because of two related matters. The first is that a company associated with Travers Duncan - Cascade Coal Pty Ltd - appears to have been a substantial beneficiary of the decision to reopen the EOI process. The second is that after declining to agree with the decision to reopen the EOI process, the Deputy Director General, Alan Coutts, found that he was no longer needed in the Department of Primary Industry." (JTB 74S-75Q) "267 Obviously the allegations which will be made during this inquiry are very serious. I will now outline some of the more serious allegations: ... That Ian MacDonald directed the Department of Primary Industries to reopen the EOI process with a view to benefiting Travers Duncan and persons associated with Travers Duncan. ... That seven persons associated with Cascade Coal, Travers Duncan ... Received and used confidential information provided to them by the Obeids and their associates. Used that information in a way that Cascade Coal would win the Mount Penny Exploration Licence which they intended to resell for massive profit. Attempted to conceal the involvement of the Obeid family to mislead the other directors and owners of White Energy." (JTB 89U-90I) 19On 6, 7 and 10 December 2012 the plaintiff was examined in the public inquiry. The public inquiry of Operation Jasper was adjourned on 14 December 2012 until 21 January 2013 after 58 of the 83 witnesses to be called had given evidence. All but two of the investors in Cascade Coal had given evidence by 14 December 2012. 20On 15 January 2013 a briefing note was prepared for the Premier by Mr Miller, who was the General Counsel for the Department of Premier and Cabinet (DPC) (hereafter referred to as the Miller briefing note). This is the document at JBT p 91 to which objection was taken by the Attorney-General. The briefing note is headed "ICAC Investigations into Mining Exploration Licences - Operations Jasper and Acacia". 21The briefing note records some detail of the Commission's investigation with specific reference to items (c), (d) and (e) in the referral by Parliament of questions relating to mining exploration at Doyles Creek (see [4] hereof). Paragraph 3.4 records: "3.4 In a meeting with the Director General, the Commissioner of the ICAC suggested that the Premier may wish to confirm in writing that the NSW Government would welcome, in due course, recommendations from the Commission along the lines referred to in paragraph (c) to (e) of the resolution above, in respect of those other licences and leases and not just Doyles Creek." 22In the remainder of the briefing note, Mr Miller set out by reference to the suggestion from the Commissioner, the various options available to the Premier. 23Objection was taken by the Attorney-General to the admissibility of the whole of the briefing note on the basis that there was nothing in the document to indicate that Mr Miller was present at any meeting between the DG and the Commissioner, nor that he had any personal knowledge of any of the asserted facts about that meeting. The Attorney-General submitted that there was no indication of Mr Miller having been directly or indirectly supplied with the information by a person who had, or might reasonably be suspected to have had, personal knowledge of any asserted facts about the meeting. 24The Attorney-General objected to any part of the briefing note going into evidence, in particular the review of options in that they and the other parts of the document amounted to nothing more than a commentary by Mr Miller about proposed courses of action. 25The Miller briefing note is signed by Mr Miller and is also signed by Mr Eccles, the DG of the DPC. 26Mr Eccles was a party to the meeting. He was clearly in a position to know of the fact of the meeting and what took place at it. His endorsement by way of his signature on the Miller briefing note makes that part of it, i.e. paragraph 3.4 admissible. The balance of the briefing note is irrelevant and has been correctly characterised by the Attorney-General as a commentary. Accordingly, I am satisfied that a meeting did take place between the Commissioner and the DG of the DPC on or shortly before 15 January 2013 and that the subject matter of that meeting was that which is set out in paragraph 3.4. I reject the other parts of the Miller briefing note. 27On 21 January 2013 the public inquiry of Operation Jasper resumed to hear the evidence of the remaining witnesses. Mr McGuigan, one of the remaining investors in Cascade Coal, gave evidence in the public inquiry and the final witness from Cascade Coal gave evidence on 31 January 2013. The evidence of witnesses in the public inquiry of Operation Jasper concluded on 7 March 2013. 28On 30 January 2013 the Premier signed a letter to the Commissioner. The Commissioner received that letter on 5 February 2013. 29The content of the Premier's letter was: "Dear Commissioner, I am writing in relation to the Commission's current investigations concerning certain mining exploration licences (Operations Jasper and Acacia). On 11 November 2012 (Legislative Assembly) and 23 November 2012 (Legislative Council), a resolution was passed under section 73 of the Independent Commission Against Corruption Act 1988 referring to the Commission for investigation and report certain matters relating to Exploration Licence No 7270 under the Mining Act 1992 over the Doyles Creek area. The resolution included that the Commission should report on: "(c) Any recommended action by the NSW Government with respect to licences or leases under the Mining Act over the Doyles Creek area; (d) Any recommended action by the NSW Government with respect to amendment of the Mining Act; and (e) Whether the NSW Government should commence legal proceedings, or take any other action, against any individual or company in relation to the circumstances surrounding the allocation of Exploration Licence No 7270." The resolution also authorised the Commission to inquire into any related matters. It is apparent that the Commission's investigations in respect of Operations Jasper and Acacia concern a number of other exploration licences and leases, as well as Exploration Licence No 7270 over the Doyles Creek area. Accordingly, I am writing to you now to indicate that the NSW Government would welcome any findings and recommendations the Commission may think it fit to make along the lines of the matters referred to in paragraphs (c) to (e) above in relation to any other exploration licences or leases that may be relevant to your investigation." 30On 31 January 2013 the Commissioner telephoned Mr Eccles, the DG of the DPC, who made a file note of the contents of the telephone conversation (JTB 98). The content of that file note is as follows: "I received a phone call from Commissioner Ipp this morning in relation to the issue of Exploration Licences and Mining Leases at Mount Penny. The Commissioner advised that Minister Hazzard had spoken to him with the advice that he (the Minister) could not take matters before the current ICAC inquiry into account when considering whether to grant a development application (DA). This would have the practical effect of preventing ICAC related matters being taken into account in the decision to issue a Mining Lease as such a lease is for all intents and purposes automatically granted once a DA is provided. The Commissioner then described the following legislative pathway: Under s 65(2) of the Mining Act the Minister may grant a mining lease if a development consent is in force. Under the relevant 2011 SEP, development for the purpose of the mining of coal is a State Significant Development (SSD). Division 4.1 of the EPA Act.