Haire v ACT Integrity Commission [2025] ACTSC 87

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Haire v ACT Integrity Commission Citation: [2025] ACTSC 87 Hearing Date: Determined on the papers Decision Date: 17 March 2025 Before: Mossop J Decision: (1) There is no order as to the costs of the proceedings. Catchwords: PRACTICE AND PROCEDURE – COSTS – Proceedings for judicial review arising out of investigation by Integrity Commission – alleged denial of procedural fairness in rulings made by Commission and apprehension of bias arising out of alleged refusal to permit cross-examination of a witness during public hearings – public hearings continue and cross-examination subsequently allowed – proceedings discontinued with leave of the court and the question of costs reserved – parties enthusiastically contest question of costs – 26 pages of written submissions – not appropriate for court to determine the merits or examine the position of the parties in significant detail in order to determine question of costs – parties acted reasonably in bringing and defending proceedings – no order as to costs Legislation Cited: Court Procedures Rules 2006 (ACT), r 1163(2) Cases Cited: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Rural & General Insurance Broking Pty Ltd v Australian Prudential Regulation Authority [2009] ACTSC 67; 231 FLR 199 Parties: Catherine Elise Haire (Plaintiff) The Hon Michael F Adams KC, Commissioner of the ACT Integrity Commission (First Defendant) ACT Integrity Commission (Second Defendant) Solicitors Clayton Utz (Plaintiff) ACT Integrity Commission (First and Second Defendant) File Number: SC 354 of 2023 MOSSOP J: Introduction

These were proceedings in which judicial review was sought of certain decisions of the ACT Integrity Commission during the course of an investigation, and an allegation was made of an apprehension of bias in respect of the Commissioner. The proceedings were discontinued with the leave of the court on 24 October 2024, reserving the question of costs for determination by the court. The parties approached the determination of the question of costs with a surprising degree of enthusiasm, energy and resources. They filed a total of 26 pages of written submissions on costs, accompanied by 228 pages of transcript. The plaintiff claims that she, in substance, succeeded in the proceedings because the Commissioner ultimately permitted cross-examination of a witness and sought her costs or, alternatively, that there be no order as to costs. The defendants claim that they did not surrender or capitulate and are therefore entitled to their costs.
For the reasons that follow, the appropriate order is that there is no order as to costs.

Background

The ACT Integrity Commission was conducting an investigation referred to as “Operation Kingfisher”. That was an investigation into the recommendations and decisions of public officials within the ACT Education Directorate relating to the award of a contract for the Campbell Primary School Modernisation Project in 2019 and 2020. As part of the Commission’s investigation, it conducted public hearings. The plaintiff, Catherine Elise Haire, was a person whose conduct was being investigated by the Commission as she was the Director-General of the ACT Education Directorate at the time and made the final decision relevant to the investigation, namely that the government enter into a contract with Lendlease Building Pty Ltd for certain works on that project rather than another company.
On 1 September 2023, she commenced proceedings seeking judicial review of a decision of the Commissioner on 15 August 2023 not to recuse himself on the basis of a reasonable apprehension of bias, and of decisions made on 24 and 29 August which were alleged to amount to a refusal of the plaintiff’s application to cross-examine a person identified by the pseudonym ‘John Green’.
Those proceedings were first before the court on 4 September 2023 and orders were made by consent on that day relating to the progress of the matter. It was anticipated by the parties that the case would be ready to be heard by the week of 9 October 2023.
On 7 September 2023, further directions were made by consent. On 18 September 2023, the matter was listed for hearing on 5 February 2024 with a one-day estimate. Directions were then varied on 12 October 2023 and the matter identified as being appropriate for a final hearing date not before 4 March 2024. On 17 October 2023, the matter was listed for hearing on 17 June 2024. The directions relating to the preparation of the matter for hearing were then adjusted around the new hearing date.
On 28 March 2024, the parties consented to orders that would have a final hearing listed on a date not before 23 October 2024, and the hearing listed for 17 June 2024 was vacated.
On 15 April 2024, the proceedings were listed for hearing on 25 November 2024 and the timetable for evidence was subsequently adjusted.
On 4 September 2024, the hearing date was vacated and the plaintiff directed to file an application for leave to discontinue.
On 24 October 2024, the parties consented to orders granting leave to discontinue the proceedings on the basis that costs were to be determined as the court considered appropriate. A timetable for written submissions on the issue of costs was made by consent, unfortunately not including any page limits. The parties agreed that costs would be determined on the papers unless the court otherwise ordered. Further directions were made on 31 January 2025 relating to additional written submissions going beyond those originally contemplated.

Submissions

It is not necessary to set out in great detail the arguments put by the parties in their 26 pages of written submissions. However, a brief summary of the position adopted by the parties is as follows.
The plaintiff explained the background to the application, which related to the evidence of John Green that implicated the plaintiff in a direction allegedly received from the Minister’s office to prefer Lendlease over the other company. It was in that context that the plaintiff alleged that the Commissioner refused the plaintiff permission to cross-examine Mr Green on 24 August 2023 and 29 August 2023. The plaintiff pointed out that, in the period following the commencement of proceedings, the plaintiff was granted leave to cross-examine Mr Green on 6 December 2023 and that cross-examination ultimately occurred on 6 and 7 December 2023. The public hearings in relation to Operation Kingfisher concluded on 18 July 2024. The plaintiff claimed that she successfully obtained the relief sought in relation to the cross-examination of Mr Green and that the action otherwise became futile at the conclusion of the public hearings.
The plaintiff sought her costs on the basis that she had been largely successful in obtaining the relief sought in her originating application, which would ordinarily result in costs being awarded in her favour. Further, she submitted that she had conducted and discontinued the proceedings in a reasonable manner such that she should not be required to pay the defendants’ costs.
The defendants submitted that they had not surrendered or capitulated but instead had continued with the investigation despite the pending proceedings. In relation to the allegations that there had been a refusal to permit cross-examination, the defendants pointed to the terms of the Commissioner’s ruling and submitted that there was not a simple refusal to permit cross-examination but rather an indication that leave would be granted if the plaintiff satisfied certain conditions. That was developed by reference to the detail of the communications between the parties both within the public hearing and outside it, including extensive references to the transcript of the exchanges between senior counsel for the plaintiff and the Commissioner. The defendants submitted that they should have their costs of the proceedings.
Although the plaintiff filed submissions in reply, the defendants filed supplementary submissions and the plaintiff filed a response to those supplementary submissions, the positions remained essentially the same even though the parties elaborated on the merits of their respective positions on the substance of the claim for judicial review.

Consideration

Given that the discontinuance was with the leave of the court, the court may make “the order for costs it considers appropriate”: Court Procedures Rules 2006 (ACT), r 1163(2). Penfold J conducted a review of the authorities in Rural & General Insurance Broking Pty Ltd v Australian Prudential Regulation Authority [2009] ACTSC 67; 231 FLR 199. In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625, McHugh J, sitting as a single judge and determining the costs consequences of proceedings that had become unnecessary, said: In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases. (Footnotes omitted.)

Order

The order of the Court is: (1) There is no order as to the costs of the proceedings.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date:

Catchwords

PRACTICE AND PROCEDURE – COSTS – Proceedings forjudicial review arising out of investigation by Integrity Commission –alleged denialof procedural fairness in rulings made by Commission andapprehension of bias arising out of alleged refusal to permit cross-examinationof a witness during public hearings – public hearings continue andcross-examination subsequently allowed – proceedingsdiscontinued withleave of the court and the question of costs reserved – partiesenthusiastically contest question of costs– 26 pages of writtensubmissions – not appropriate for court to determine the merits or examinethe position of theparties in significant detail in order to determine questionof costs – parties acted reasonably in bringing and defendingproceedings– no order as to costs

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

These were proceedings in which judicial review was sought of certain decisions of the ACT Integrity Commission during the course of an investigation, and an allegation was made of an apprehension of bias in respect of the Commissioner. The proceedings were discontinued with the leave of the court on 24 October 2024, reserving the question of costs for determination by the court. The parties approached the determination of the question of costs with a surprising degree of enthusiasm, energy and resources. They filed a total of 26 pages of written submissions on costs, accompanied by 228 pages of transcript. The plaintiff claims that she, in substance, succeeded in the proceedings because the Commissioner ultimately permitted cross-examination of a witness and sought her costs or, alternatively, that there be no order as to costs. The defendants claim that they did not surrender or capitulate and are therefore entitled to their costs.
For the reasons that follow, the appropriate order is that there is no order as to costs.

Background

The ACT Integrity Commission was conducting an investigation referred to as “Operation Kingfisher”. That was an investigation into the recommendations and decisions of public officials within the ACT Education Directorate relating to the award of a contract for the Campbell Primary School Modernisation Project in 2019 and 2020. As part of the Commission’s investigation, it conducted public hearings. The plaintiff, Catherine Elise Haire, was a person whose conduct was being investigated by the Commission as she was the Director-General of the ACT Education Directorate at the time and made the final decision relevant to the investigation, namely that the government enter into a contract with Lendlease Building Pty Ltd for certain works on that project rather than another company.
On 1 September 2023, she commenced proceedings seeking judicial review of a decision of the Commissioner on 15 August 2023 not to recuse himself on the basis of a reasonable apprehension of bias, and of decisions made on 24 and 29 August which were alleged to amount to a refusal of the plaintiff’s application to cross-examine a person identified by the pseudonym ‘John Green’.
Those proceedings were first before the court on 4 September 2023 and orders were made by consent on that day relating to the progress of the matter. It was anticipated by the parties that the case would be ready to be heard by the week of 9 October 2023.
On 7 September 2023, further directions were made by consent. On 18 September 2023, the matter was listed for hearing on 5 February 2024 with a one-day estimate. Directions were then varied on 12 October 2023 and the matter identified as being appropriate for a final hearing date not before 4 March 2024. On 17 October 2023, the matter was listed for hearing on 17 June 2024. The directions relating to the preparation of the matter for hearing were then adjusted around the new hearing date.
On 28 March 2024, the parties consented to orders that would have a final hearing listed on a date not before 23 October 2024, and the hearing listed for 17 June 2024 was vacated.
On 15 April 2024, the proceedings were listed for hearing on 25 November 2024 and the timetable for evidence was subsequently adjusted.
On 4 September 2024, the hearing date was vacated and the plaintiff directed to file an application for leave to discontinue.
On 24 October 2024, the parties consented to orders granting leave to discontinue the proceedings on the basis that costs were to be determined as the court considered appropriate. A timetable for written submissions on the issue of costs was made by consent, unfortunately not including any page limits. The parties agreed that costs would be determined on the papers unless the court otherwise ordered. Further directions were made on 31 January 2025 relating to additional written submissions going beyond those originally contemplated.

Submissions

It is not necessary to set out in great detail the arguments put by the parties in their 26 pages of written submissions. However, a brief summary of the position adopted by the parties is as follows.
The plaintiff explained the background to the application, which related to the evidence of John Green that implicated the plaintiff in a direction allegedly received from the Minister’s office to prefer Lendlease over the other company. It was in that context that the plaintiff alleged that the Commissioner refused the plaintiff permission to cross-examine Mr Green on 24 August 2023 and 29 August 2023. The plaintiff pointed out that, in the period following the commencement of proceedings, the plaintiff was granted leave to cross-examine Mr Green on 6 December 2023 and that cross-examination ultimately occurred on 6 and 7 December 2023. The public hearings in relation to Operation Kingfisher concluded on 18 July 2024. The plaintiff claimed that she successfully obtained the relief sought in relation to the cross-examination of Mr Green and that the action otherwise became futile at the conclusion of the public hearings.
The plaintiff sought her costs on the basis that she had been largely successful in obtaining the relief sought in her originating application, which would ordinarily result in costs being awarded in her favour. Further, she submitted that she had conducted and discontinued the proceedings in a reasonable manner such that she should not be required to pay the defendants’ costs.
The defendants submitted that they had not surrendered or capitulated but instead had continued with the investigation despite the pending proceedings. In relation to the allegations that there had been a refusal to permit cross-examination, the defendants pointed to the terms of the Commissioner’s ruling and submitted that there was not a simple refusal to permit cross-examination but rather an indication that leave would be granted if the plaintiff satisfied certain conditions. That was developed by reference to the detail of the communications between the parties both within the public hearing and outside it, including extensive references to the transcript of the exchanges between senior counsel for the plaintiff and the Commissioner. The defendants submitted that they should have their costs of the proceedings.
Although the plaintiff filed submissions in reply, the defendants filed supplementary submissions and the plaintiff filed a response to those supplementary submissions, the positions remained essentially the same even though the parties elaborated on the merits of their respective positions on the substance of the claim for judicial review.

Consideration

Given that the discontinuance was with the leave of the court, the court may make “the order for costs it considers appropriate”: Court Procedures Rules 2006 (ACT), r 1163(2). Penfold J conducted a review of the authorities in Rural & General Insurance Broking Pty Ltd v Australian Prudential Regulation Authority [2009] ACTSC 67; 231 FLR 199. In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625, McHugh J, sitting as a single judge and determining the costs consequences of proceedings that had become unnecessary, said: In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases. (Footnotes omitted.)

Order

The order of the Court is: (1) There is no order as to the costs of the proceedings.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date:

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