Lazarus v Independent Commission Against Corruption

Judgment

1. HIS HONOUR: By a statement of claim filed 31 July 2017 ("the statement of claim"), Sandra Lazarus ("the first plaintiff"), Michelle Lazarus ("the second plaintiff") and Jessica Lazarus ("the third plaintiff") (collectively, "the plaintiffs") brought proceedings seeking the removal of reports in relation to investigations conducted by the Independent Commission Against Corruption ("the first defendant") and the removal of references to that investigation, compensation, damages and other forms of relief against the first defendant and Michael Kane ("the second defendant"). An affidavit was sworn by the first plaintiff dated 31 July 2017 supporting and verifying the statement of claim (to which there were 17 annexures).
2. By notice of motion filed 31 August 2017, the first defendant sought orders that the statement of claim be summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") ("the first prayer for relief") and, in the alternative, that the statement of claim be struck out pursuant to r 14.28 of the UCPR ("the second prayer for relief") ("the notice of motion"). An affidavit of Christopher Frommer affirmed 31 August 2017 was read on the motion.
3. When the motion was called for hearing on 15 February 2018, the first and second defendants were represented by Ms Joanna Davidson of counsel. The second defendant entered a submitting appearance. No appearance was entered by or on behalf of the plaintiffs.
4. The notice of motion had been listed before Johnson J sitting as Duty Judge on 12 February 2018 to hear an application to vacate the date fixed for the hearing of the notice of motion proceedings, namely, 15 February 2018 (based upon a removal application that had been filed in the High Court with respect to separate Court of Appeal proceedings). His Honour dismissed the application and published his reasons: Lazarus and Ors v Independent Commission Against Corruption and Anor; Lazarus v State of New South Wales and Ors [2018] NSWSC 138.
5. The first and second plaintiffs appeared before Johnson J to prosecute the application for the adjournment application and to receive the judgment of his Honour. In the final paragraph of his Honour's judgment, he observed "I note that the matters stand listed for hearing before Walton J this Thursday and Friday" (at [31]) (the reference to the Friday listing concerned an applications for, inter alia, for summary dismissal with respect to the proceedings in 2017/247213).
6. There is no doubt that the first and second plaintiffs had notice of the hearing for the notice of motion on 15 February 2018. In regard to the third plaintiff, the proceedings before Johnson J proceeded on the basis that the first and second plaintiffs appeared on behalf of the third plaintiff considering the matter involved all three sisters. In any event, as extracted from the applicant's submissions at [8] below, the third plaintiff was not charged with or convicted of any offences, and no cause of action was pleaded concerning the third plaintiff.
7. Upon the motion being called, no appearance was entered by the plaintiffs. Upon application by the first defendant, and in the light of the prior notice of the proceedings, a decision was made to hear the notice of motion proceedings ex parte. By this judgment the notice of motion is determined by the Court.

Factual Background

1. The submissions of the first defendant provide a summary of the relevant factual and procedural background derived from the affidavit of Mr Frommer. That summary is properly available having regard to that affidavit and the materials thereto. It is extracted below: Sandra Lazarus 4. On 27 November 2014, Magistrate Keogh found Sandra Lazarus guilty of 44 criminal offences, being 16 offences against s 178BB of the Crimes Act 1900 (obtaining money or financial advantage by false or misleading statements, now repealed) and 28 offences against s 300 of that Act (making or using false instruments). Those findings were made after a lengthy hearing, at which Ms Lazarus was represented by counsel, which commenced on 25 August 2014 and concluded on 22 October 2014. The proceedings were stood over for sentence. 5. The charges related to frauds on two Sydney hospitals allegedly committed between 2008 and 2009, which were investigated by ICAC in "Operation Charity". The prosecution case was that Sandra Lazarus obtained access to staff and facilities, including computer networks of the Royal Hospital for Women and the Royal North Shore Hospital, on the basis that she was a PhD student seeking to conduct trials of a device intended to diagnose various cancers. 6. The charges alleged misuse of requisition forms, "vendor maintenance forms" and "non-order vouchers", used at the Royal Hospital for Women and the Royal North Shore Hospital to support payments for goods and services. Sandra Lazarus was alleged to have forged the signatures of a number of doctors and professors from the two hospitals on such forms and to have lodged invoices, in the names of companies of which she or her sister were sole director or shareholder, claiming substantial payments for work which was not done and materials which were not provided. The total involved in the charges of which Ms Lazarus was convicted was over $502,150. Her defence was that the work referred to in the various invoices was undertaken, and that the doctors' signatures were genuine. 7. On 5 February 2015, Sandra Lazarus appeared before Button J in this Court seeking ex parte judicial review of the criminal proceedings in which Magistrate Keogh had found her guilty. His Honour granted Ms Lazarus leave to file the summons in court and stood the proceedings over until the following day. Ms Lazarus filed an amended summons in this Court on 12 February 2015 seeking, inter alia, that Magistrate Keogh be disqualified and that the proceedings before her be reheard to be determined at law by another Magistrate. 8. The judicial review proceedings were heard by Garling J on 13 April 2015. On 14 April 2015 his Honour ordered that the proceedings be dismissed, publishing his reasons on 16 April 2015: Lazarus v DPP (NSW) [2015] NSWSC 426. Leave to appeal was refused: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWCA 408. 9. On 27 April 2015, Sandra Lazarus was sentenced in respect of the charges by Magistrate Keogh. Sentences of imprisonment were imposed, with an effective head sentence of one year and nine months and a non-parole period of one year and four months. 10. The same day, 27 April 2015 Ms Lazarus filed a Notice of Appeal to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 ("CAR Act"), appealing against her conviction and sentence. She was granted bail pending determination of her appeal, which had the effect of staying the execution of the sentence that had been imposed. 11. The plaintiffs, including Sandra Lazarus, subsequently commenced multiple further proceedings in the Common Law Division of this Court, several of which were brought against the first and second defendants. The first, commenced on 9 February 2015, was dismissed (with the exception of paragraph 4, which was struck out pursuant to r 14.28 of the UCPR) pursuant to r 13.4 of the UCPR on 1 September 2015: Sandra Lazarus, Michelle Lazarus and Jessica Lazarus v Director of the Independent Commission Against Corruption [2015] NSWSC 1265. The proceedings were dismissed pursuant to r 12.7 of the UCPR on 22 September 2015: Sandra Lazarus, Michelle Lazarus and Jessica Lazarus v Director of the Independent Commission Against Corruption (No 2) [2015] NSWSC 1390. 12. On 27 June 2017, the plaintiffs filed an Amended Summons seeking relief against the first and second defendants on the basis that various aspects of Operation Charity or the operations of ICAC and the Director of Public Prosecutions in relation to the Local Court proceedings in respect of which the plaintiffs were convicted were vexatious proceedings, and orders setting aside the findings of Operation Charity: Lazarus, Lazarus & Lazarus v Kane [2017] NSWSC 1150 at [34], [41], [42]. On 24 August 2017, Wilson J dismissed the proceedings pursuant to r 13.4 of the UCPR. Michelle Lazarus 13. On 23 May 2014, Michelle Lazarus was found guilty by Magistrate Barnes of seven counts of giving false or misleading evidence contrary to s 87 of the Independent Commission Against Corruption Act 1988 ("ICAC Act"), in relation to evidence given in a compulsory examination before the ICAC on 12 July 2010, and in a public hearing on 21 February 2011. The ICAC hearings in question were held for the purposes of its investigation into "Operation Charity". 14. The Local Court hearing commenced on 21 October 2013 and was conducted over five days, the last of which was 8 April 2014. Ms Lazarus was represented by counsel throughout. 15. In relation to each count, Barnes LCM held that three elements of the offence under s 87 of the ICAC Act were established, namely, (a) that at a compulsory examination or public hearing; (b) the defendant (now appellant) knowingly gave false or misleading evidence; and (c) that the evidence concerned a material particular. His Honour rejected Ms Lazarus's submissions on two threshold issues, one of which was that the commencement of the prosecution was procedurally objectionable, the CANs by which the proceedings were commenced having been initiated by an ICAC officer: DPP v Lazarus (unreported, Local Court of NSW, Magistrate Barnes, 23 May 2014) at p 4-5. 16. On 14 July 2014, Michelle Lazarus was sentenced to four months imprisonment on count 1, and five months imprisonment on counts 2-7, consecutive on the term for count 1. Both terms of imprisonment were suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 on the condition Ms Lazarus entered into a good behaviour bond. On 14 July 2014 Michelle Lazarus filed an appeal in the District Court pursuant to s 11 of the CAR Act. On 19 June 2017, the appeal to the District Court was dismissed. 17. On 23 February 2015, Michelle Lazarus commenced judicial review proceedings in the Supreme Court, contending inter alia that the relevant Court Attendance Notices, and consequently her conviction, were invalid. Those proceedings were dismissed by Garling J in August 2015: Lazarus v NSW Director of Public Prosecutions [2015] NSWSC 1116. The Court of Appeal (Basten and Ward JJA) dismissed an application for leave to appeal Garling J's judgment on 14 March 2016: [2016] NSWCA 47. Jessica Lazarus 18. The third plaintiff was not charged with or convicted of any offence arising out of Operation Charity. [Footnotes omitted.]

Content of the Statement of Claim

1. The relief sought in the statement of claim was in the form of 10 orders numbered 1(a)-(i) and 2(a). Order 3 does not seek any particular form of relief but refers to a concern. The relief sought by the plaintiffs in the first and second paragraphs of the statement of claim are as follows: 1. The Plaintiffs ask the Court for: a) An order that the First Defendant remove all reports in relation to the ICAC investigation Operation Charity, including any and all Parliamentary reports written and published pursuant to section 74 and 74A of the ICAC Act 1988 (NSW); b) An order that the First Defendant remove all official ICAC references to the ICAC investigation titled Operation Charity, including such references made at the official ICAC website and other official ICAC media/texts; c) A civil penalty to be imposed on the Defendants; d) Compensation to be provided to the Plaintiffs for the adverse actions, persona! injuries, harm stress, illness, mental anguish and damages against the Plaintiffs; e) Interest on any compensation; f) Damages for the personal injuries, harm, stress, illness, mental anguish and adverse actions against the Plaintiffs; g) Interest on any damages; h) An order that the Defendants pay the Plaintiffs' costs in this Court; i) Such other orders as the Court deems fit. 2. The Plaintiffs ask the Court for: a) An order that the Defendants pay the sum of $247,000,000.00 (two hundred and forty seven million Australian Dollars) to each of the Plaintiffs for the adverse actions and conduct against the Plaintiffs, and the associated prolonged harm, persona! injuries, mental anguish, medical illnesses, illness, and damages experienced by the Plaintiffs since 28 May 2010.
2. The particulars and pleadings appearing in the balance of the statement of claim do not identify causes of action as such. Nor was it a straightforward exercise to identify the connection between the relief claimed and the 61 paragraphs appearing under the heading "Pleadings and Particulars". Save for some particular matters to which I will direct attention, it is sufficient to give a flavour of the pleadings by setting out the various headings governing the particulars as follows: 1. "Parties"; 2. "ICAC Investigation"; 3. "Email exchange between Second Defendant (on behalf of First Defendant) and Forensic Document Examiner, Ms Michelle Novotny"; 4. "ICAC Investigation"; 5. "Written correspondence and communications between the First Defendant and the First Plaintiff's legal representatives"; 6. "Continued email exchange between the Second Defendant (on behalf of the First Defendant) and Forensic Document Examiner, and other communications"; 7. "ICAC Investigation"; 8. "Forensic Document Examination - Mr Chris Anderson"; 9. "Material Particular"; 10. "Protection and Liability - Bad Faith" 11. "The Defendants' Statutory Duties"; 12. "The First and Second Defendants"; 13. "Contravention of section 307B of the Crimes Act 1900 (NSW) - False and misleading information"; 14. "Contravention of section 307C of the Crimes Act 1900 (NSW) - False and misleading Documents"; and 15. "Contravention of section 315 of the Crimes Act 1900 (NSW)) - Hindering investigation".
3. The principal focus of the statement of claim was amply summarised in the following submission of the first defendant: The Statement of Claim is principally concerned with ICAC's failure to engage a handwriting expert, Ms Novotny, in the course of its investigation into Operation Charity. Over a period of time in 2010, ICAC obtained a quote for handwriting analysis from Ms Novotny, but ultimately did not engage her. The quote for handwriting analysis was sought in respect of "vendor maintenance forms", "requisition forms" and "non-order voucher forms", said to have been fraudulently signed by Ms Sandra Lazarus. Each form required signature by two persons, namely a requesting and an authorising officer.
4. Some particular parts of the statement of claim may be mentioned in that respect. Paragraph 21 of the statement of claim is in the following terms: 21. On 8 November 2010, Ms Novotny wrote an email to the Second Defendant in which she stated the following: 'It will be necessary to have specimen signatures attributed to Ms Lazarus in order possibly to express any conclusion as to whether or not she wrote the questioned signatures on the invoice (none have been submitted to date).' [Email from Ms Michelle Novotny to Mr Michael Kane, dated 8 November 2010, sent at 4:44pm; a copy of the email is annexure 7 of the affidavit dated 31 July 2017]. As indicated in her email, Ms Novotny, reiterated that the First Defendant was offered a fee reduction for her services. Ms Novotny also outlined at the same time that she had not received relevant specimen signatures from the First Defendant (via the Second Defendant) in order to express any conclusion regarding questioned signatures/handwritings, even though the Second Defendant had been \n contact with Ms Novotny since, at least, 1 July 2010; four months prior. Given the material importance of conducting the forensic examination, the First and Second Defendants duty to fully investigate a matter (see section 73 of the ICAC Act 1988) was not fulfilled. As per Ms Novotny's email, no efforts were made by the First or Second Defendants to provide Ms Novotny with materials she required to complete her examinations.
5. Paragraph 23 relates to Annexure 8 to the affidavit of the first plaintiff in support of the statement of claim. That annexure is an email from the second defendant to Ms Novotny, the handwriting expert, dated 11 January 2011. The first two paragraphs of that email are as follows: Hope you had a very Merry Christmas and are having a great New Year. I am back at work now and I just need to update you on the forensic work relating to Sandra Lazarus (Operation Charity). We had a Compulsory Examination with her just before Christmas where she made certain admissions as to signing several of the documents. The Commissioner of the ICAC has directed that we will not proceed with any forensic work at this stage due to Sandra Lazarus [sic] partial admission and the evidence of the witness [sic] now stating that they did not sign the relevant forms. I am sorry for all the hassles with this matter.
6. Attention will also be directed to Annexure 15 of the first plaintiff's affidavit. This is correspondence from Jan Daly, principal lawyer for the first plaintiff, to the former solicitor for the first plaintiff, Mr Lloyd Hart, in which the following was said: In regard to your letter dated 16 March 2011 (at page 12 of the bundle) I confirm my oral advice to Ms Soars that the Commission did approach Ms Novotny last year but did not engage her to conduct any forensic examination of the signatures due to the cost of so doing.
7. The following pleadings then appear in relation to the 11 January 2011 email (at paras 24-27): 24. In his email to Ms Novotny on 11 January 2011, the Second Defendant, on behalf of the First Defendant, ceased any forensic document examination, and disengaged the services of Forensic Document Examiner, Ms Michelle Novotny. Of note, the Second Defendant gave Ms Novotny false and misleading information which was specifically cited as the reason for ceasing Ms Novotny's expert services. 25. Contrary to the false and misleading statements that the Second Defendant made to Ms Novotny in his email above, the First Plaintiff did not make any 'admissions as to signing several of the documents'. The Second Defendant gave additional false and misleading information to Ms Novotny, again citing that information as a reason for ceasing her expert services. Specifically, the Second Defendant stated that the 'Commissioner of the ICAC has directed that we will not proceed with any forensic work at this stage due to Sandra Lazarus partial admission'. Contrary to the false and misleading statements that the Second Defendant made to Ms Novotny, there was no evidence to suggest that the Commissioner made any such directions to cease forensic examination of the documents in question; in fact the Commissioner stated on record that he had no knowledge that any forensic evidence would be conducted (see paragraph 16). 26. Importantly, the Commissioner of the First Defendant (the ICAC) is obliged to retain his/her independence from the investigatory functions of the ICAC Investigators, including the Second Defendant. Therefore, the reason given to Ms Novotny for preventing her from forensicaily examining documents in question must have been false. That is, the Commissioner, in accordance with his functions, must not have made such directions as suggested by the Second Defendant. 27. Further, contrary to the false and misleading statements that the Second Defendant made to Ms Novotny in his email of 11 January 2011, the First Plaintiff did not make" any 'partial admission' with regards to signatures/handwritings [sic] in question. Of note, in subsequent Local Court proceedings the Second defendant admitted to providing Ms Novotny with information that was contrary to the available evidence; specifically with regards to the First Plaintiff's evidence in relation to signatures/handwritings [sic] in question (see paragraph 32).
8. As to those pleadings, particular reference should be made to para 32 of the pleadings which is in the following terms: 32. At Local Court proceedings against the First Plaintiff, on 25 September 2014, the Second Defendant gave evidence in relation to the email that he sent to Ms Novotny on 11 January 2011 (see paragraph 21): 'COUNSEL FOR LAZARUS: And then you received. So you sent an email to Michelle. KANE: Yes. COUNSEL FOR LAZARUS: If I may Just, if, if, if you. I'll read it to you, instead of, keep walking around there. And if there's, ah, a problem with it just let me know. "Hope you have a very Merry Christmas and are having a great New Year." This is from you, this is from you to Michelle. "I am back at work now and I just need to update you on the forensic work relating to Sandra Lazarus, Operation Charity." Do you recall that email? KANE: Vaguely. COUNSEL FOR LAZARUS: I'll continue on. 'We had a compulsory examination with her just before Christmas. She has made certain admissions as to signing several of the documents." KANE: Yes. COUNSEL FOR LAZARUS: Did she make any admissions about signing any of the doctor's? KANE: No, she said that the signatures as the requesting officer were hers, and that she believed that the doctors had signed those as the authorising officers. COUNSEL FOR LAZARUS: Yes, and in fact, the fact of the matter is that totally throughout the investigation of Sandra Lazarus when you spoke to her on most occasions she always adhered to the fact that the doctors signed those non-order vouchers. KANE: That's correct. COUNSEL FOR LAZARUS: And maintenance forms. KANE: That's correct. [ICAC v Lazarus. "Local Court Transcript". Downing Centre Local Court, 25 September 2014].
9. In paragraph 38, the statement of claim refers to the engagement of a "forensic document examiner", Mr Chris Anderson, engaged by the first plaintiff. There was reference also to some evidence given by Mr Anderson.
10. In paras 43 and 44, the plaintiffs recognised that the first and second defendants are not liable if their conduct and actions were "done in good faith" but contended that the actions of the first and second defendant in, inter alia, providing false and misleading information, creating false and misleading documents, hindering the investigation and creating "inherent bias with the investigation" all constituted bad faith. Reliance was also placed upon a breach of statutory duties.
11. Paragraphs 48 and 49 of the statement of claim were in the following terms: The Defendants' Statutory Duties 48. From 28 May 2010 (date of the commencement of the ICAC investigation Operation Charity) to date, the ICAC Act 1988 requires that the Defendants exercise their powers and carry out their official duties with care and diligence, that persons in their positions would reasonably exercise: a. where the First Defendant is a registered 'Special Commission of Inquiry' within the State of New South Wales; b. where the First Defendant carries out its official functions under NSW legislation and the Australian Constitution. c. as a Prosecutor for Local Court proceedings (section 3 Of the DPP Act 1986 (NSW)) has the same responsibilities and functions of a Prosecutor as stated in the Criminal Procedures Act 1986 (NSW). 49. Both the First and Second Defendants are aware of their official duties, responsibilities, functions, and obligations within the ICAC Act 1988 (NSW) and other laws of the State and Constitution of the realm.
12. Paragraph 50 deals with a search warrant. Paragraphs 51-61 are in the following terms: Contravention of section 307B of the Crimes Act 1900 (NSW) - False and misleading information 51. By reasoning stated in paragraphs above, and pursuant to section 307B of the Crimes Act 1900 (NSW), the Second Defendant provided false and misleading information to a consultant, Forensic Document Examiner, who was engaged by the First Defendant as per section 104B of the ICAC Act 1988 (NSW). 52. The Second Defendant was in attendance at the ICAC Compulsory Examination held on 15 December 2010, at which the First Plaintiff was examined. The evidence given by the First Plaintiff at the ICAC Compulsory Examination on 15 December 2010, was material particular to the ICAC investigation Operation Charity, as highlighted by Counsel Assisting (see paragraph 34). 53. Upon the Second Defendant's own admission (see paragraph 32), contained in his evidence of 25 September 2014, his email dated 11 January 2011 contains information and statements which are false and misleading, pursuant to section 307B of the Crimes Act 1900 (NSW). 54. From is his evidence of 25 September 2014, the Second Defendant was in full knowledge of the evidence given by the First Plaintiff at the Compulsory Examination conducted on 15 December 2010. As such, the Second Defendant knowingly gave the Forensic Document Examiner, Ms Novotny, false and misleading information through the creation of a false and misleading official document, and is therefore in breach of section 307B of the Crimes Act 1900 (NSW). This contravention caused the Plaintiffs persona! injuries, harm, stress, illness, mental anguish and damages. Contravention of section 307C of the Crimes Act 1900 (NSW) - False and misleading Documents 55. By reasoning stated in paragraphs above, the Second Defendant, according to section 307C of the Crimes Act 1900 (NSW), produced a false and misleading document to a consultant (Forensic Document Examiner, Ms Novotny), who was engaged by the First Defendant (via the Second Defendant), as per provisions in section 104B of the ICAC Act 1988 (NSW). 56. The official email dated 11 January 2011, sent from the Second Defendant to a consultant (Ms Novotny), is a document which was produced in compliance with the law of the State by the Second Defendant in his official capacity as an Officer of the ICAC (see section 307C of the Crimes Act 1900). 57. Upon the Second Defendant's own admission, contained in his evidence of 25 September 2014 (Local Court proceedings involving First Plaintiff), his email dated 11 January 2011 must be a false and misleading document, which was created by the Second Defendant in his official capacity. As such he is in breach of section 307C of the Crimes Act 1900 (NSW). 58. From is his evidence of 25 September 2014, the Second Defendant was in full knowledge of the evidence given by the First Plaintiff at the Compulsory Examination conducted on 15 December 2010. Therefore, the Second Defendant knowingly produced a false and misleading document, in his official capacity as an Officer of the ICAC (section 104 of the ICAC Act 1988 (NSW)), the Second Defendant did so in compliance with the law of the State, whilst carrying out is official duties,. Pursuant to section 307C of the Crimes Act 1900 (NSW), the Second Defendant produced a false and misleading document in a material particular in relation to the ICAC investigation Operation Charity. This contravention caused the Plaintiffs personal injuries, harm, stress, illness, mental anguish and damages Contravention of section 315 of the Crimes Act 1900 (NSW) - Hindering Investigation 59. By reasoning stated in paragraphs above, the Second Defendant, according to section 315 of the Crimes Act 1900 (NSW), hindered the investigation (Operation Charity), and the function of the First Defendant as prescribed in part 4 of the ICAC Act 1988 (NSW). 60. As stated in the Court Attendance Notice dated 1 March 2013 the allegation of forgery is a "serious indictable offence" according to the Crimes Act 1900 (NSW). The First and Second Defendants commenced Local Court proceedings against the First Plaintiff for serious indictable offences, which followed Operation Charity, The elements of those offences were material particular to the investigation (i.e. allegations of forgery) as reiterated by Counsel Assisting on 14 February 2011 (see paragraph 34). 61. The termination of the consultant's (Ms Novotny's) services, was based on false and misleading information contained in a false and misleading document produced by the Second Defendant to the consultant. The producing of that official document containing false and misleading information, directly hindered the investigation and the functions of the First Defendant, as prescribed in part 4 of the ICAC Act 1988 (NSW). The hindering of the investigation constituted a breach of section 315 of the Crimes Act 1900. This contravention caused the Plaintiffs personal injuries, harm, stress, illness, mental anguish and damages.
13. Reliance was also placed on contraventions of ss 307B and 307C of the Crimes Act 1900 (NSW). (Reference should also be made to contentions regarding the contravention of s 315 of that Act).
14. It is from the elements of the statement of claim concerning bad faith that the first defendant made the following submission as to the nature of the pleadings or contentions advanced by the plaintiffs in the statement of claim as follows: The SoC alleges that the decision not to engage Ms Novotny was made in bad faith and for the purpose of preventing her from providing what is alleged would have been exculpatory evidence. It is alleged that had Ms Novotny conducted forensic examination of the signatures, "the authenticity of the signatures/handwritings in questions [sic] would have been confirmed, as they were during Local Court proceedings": SoC at [29]. The SoC alleges that "no forgeries were carried out by any of the Plaintiffs, as was confirmed in Local Court proceedings": SoC at [31].

The Contention Regarding the Handwriting Expert

1. I pause to deal with the proposition in the statement of claim that the second defendant gave Ms Novotny false and misleading information as to the cessation of her services in the aforementioned email of 11 January 2011 (see [13] of this judgment). The information which was said to be false and misleading was the communication that the first plaintiff had made a partial admission regarding "signatures/handwriting". That proposition was said to be unmaintainable by virtue of the evidence of the second defendant in Local Court proceedings on 25 September 2014 as extracted in para 32 of the statement of claim (see [16] of this judgment).
2. As these pleadings are predicated upon the above extract from the transcript of Local Court proceedings set out in para 32 of the statement of claim (the apparent basis for the pleading), the pleading cannot be sustained.
3. The email of 11 January 2011 communicated that the first plaintiff made a "partial admission". The email also stated immediately thereafter "and the evidence of the witness [sic] now stating that they did not sign the relevant forms" ("the further statement").
4. Whilst the second communication in the email refers to "the witness", it is clear that the author is not referring to a single person but a number of persons by use of the word "they".
5. There are a number of reasons why the further statement is not a reference to the first plaintiff. This emerges from a simple construction of the email when all of its parts are read consistently. The first paragraph of the extract at [13] above refers to "certain admissions as to signing several of the documents" by the first plaintiff. That must be the partial admission the first plaintiff (partial because the first plaintiff did not admit improperly signing the documents but nonetheless, as I will discuss below, accepted she did so as a requesting officer). The persons referred to in the further statement are persons who did not sign the documents and, in particular, the relevant forms. I agree with the submission of the first defendant that the words "they did not sign the relevant forms" would appear to be a reference to the evidence of medical practitioners whose purported signatures appears on the forms as authorising officers.
6. When viewed in this light, the statement in the email is consistent with the evidence that the second defendant gave in the Local Court. The second defendant did not, in my view, depart from the statement in the email that the first plaintiff had given a partial admission. That partial admission was at least that she had signed a relevant form as the "requesting officer". He also gave evidence that the first plaintiff "believed that the doctors had signed those as the authorising officers". He confirmed that the first plaintiff had consistently contended that the doctors signed non-order vouchers and maintenance forms which, as indicated in the email, he contended the doctors denied.
7. The evidence in the transcript extracted at [16] above does not, therefore, demonstrate the second defendant made a false and misleading statement to Ms Novotny.

Further preliminary matters

1. It may also be noted that the statement of claim alleged that the decision not to engage Ms Novotny was made in bad faith and for the purpose of preventing her from providing what was alleged would have been exculpatory evidence. However as earlier noted in the factual background, the first plaintiff's convictions were in relation to 28 offences of making or using false instruments. Further, I note that Ms Novotny had provided an estimate on 31 October 2010 of upwards of $46,500 for the request of work which had been later revised downwards as a result of a reduced scope of work.

RELEVANT PRINCIPLES

1. In support of the notice of motion, the counsel for the applicant placed primary reliance upon the provisions of r 13.4(1)(b) of the UCPR, namely, that the proceedings disclosed no reasonable cause of action. However, the applicant also relied upon r 13.4(1)(c) of the UCPR upon the basis that aspects of the statement of claim represented an abuse of process. It was submitted that, even if the principles of res judicata and issue estoppel had no direct application with respect to the claims against the applicant and Magistrate Keogh, the proceedings may be properly dismissed under r 13.4(1)(c) on the basis that the plaintiffs sought to re-litigate issues that had been determined by this Court.
2. The Court, as presently constituted, recently had occasion to consider the principles relevant to summary dismissal applications of the present kind (under r 13.4(1)(b)) in National Australia Bank Ltd v Charlton [2018] NSWSC 157. The applicant in this matter did not raise any different issue of general principle. In the result, I extract and adopt the following principles in determination of the notice of motion: [51] It was common ground that the first prayer for relief in the notice of motion was an application for summary dismissal and that, given the claim deprived NAB of the opportunity to establish its case with the benefit of full hearing of the merits, it should only be granted in the clearest of cases: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129-130; Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 ("Agar") at [57]; Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 ("Spencer") at [55]. [52] NAB also placed reliance upon the judgment of Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) in Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102 ("Shaw") at [32] which stated the relevant test was as follows: The question is therefore whether the claims in question are so obviously untenable or groundless that there is "a high degree of certainty" that they will fail if allowed to go to trial; and whether this is one of the "clearest of cases" in which the court may accordingly intervene to prevent the claims being litigated. (His Honour was concerned with whether the claim was "doomed" or "hopeless"). [53] It should be observed that although Shaw concerned an application to strike out certain paragraphs of an amended statement of claim under r 14.28 of the UCPR, the statements of principle are broadly applicable in the present context. [54] The following observations in Agar may also be noted (at [57]): Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. [Footnotes omitted.] [55] Reference should be made to the recent judgment of Leeming JA (with whom Macfarlan and Simpson JJA agreed) in Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 ("Perera") at [30] as follows: I would reject the first aspect of Mr Perera's complaint, based on the alleged failure expressly to identify the cautious approach to summary dismissal. There are of course a variety of formulations of the applicable test where a defendant applies for the summary intervention of the court to prevent a plaintiff's case being determined in the usual way at trial. Barwick CJ collected some in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action" and "be manifest that to allow [the pleadings] to stand would involve useless expense". In part that variety stems from whether the application is made in the court's inherent jurisdiction or under the rules (see Dixon J's analysis in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92), which may in turn affect the material available to the court. In part it turns on differences in the rules of different courts, and in particular on the relaxation of the test which has occurred in some courts: see Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [56]. But for present purposes, two matters are clear. One is that common to all the various formulations is the need for "exceptional caution", as was explained in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Spencer at [53]-[55]. The other is that the inquiry is as to the demonstrated certainty of the outcome of the litigation, as opposed to its prospects of success. [56] I note Leeming JA's reference to Spencer incorporated the following passage (at [55]): As Barwick CJ also pointed out in General Steel Industries, the test to be applied was expressed in many different ways, but in the end amounted to different ways of saying "that the case of the plaintiff is so clearly untenable that it cannot possibly succeed" (emphasis added). As that formulation shows, the test to be applied was one of demonstrated certainty of outcome. [Footnotes omitted.] [57] No reference was made by the parties to the statutory duty imposed by s 56(1) and (2) of the Civil Procedure Act 2005 (NSW). By reference to the judgment of Hammerschlag J in Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 at [57]-[64] and the consideration of that judgment by Ward J in McDonald v Grech [2012] NSWSC 717 at [32]-[34], the learned authors in Ritchie's Uniform Civil Procedure (NSW) suggested that the dismissal power conferred by r 13.4(1)(b) may not be confined to proceedings that are so demonstrative as to be certain to fail. Having regard to the conclusions reached in this matter, it is unnecessary to reach any view as to that opinion, although the proposition is prima facie attractive, provided it is recognised the relevant inquiry is that stated in Perera, namely, the demonstrated certainty of the outcome of the litigation. [58] The aforementioned principles are plainly applicable to the second limb of conditions of r 13.4(1)(b). …

Prayers 1 (a) and (b)

1. The first defendant has power to prepare reports in respect of matters that have been the subject of investigation pursuant to s 74(1) of the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act") and a duty to furnish reports prepared under s 74 to the Presiding Officer of each House of Parliament pursuant to s 74(4). The first defendant may recommend that a report be made public but the determination of the course taken lies in the discretion of the Presiding Officers of the Houses of Parliament: s 78 of the ICAC Act.
2. Prayers 1(a) and (b) seek an order requiring that the first defendant remove "all reports in relation to the ICAC investigation Operation Charity, including any and all Parliamentary reports written and published pursuant to section 74 and 74A of the ICAC Act 1988 (NSW)", together with an order that the first defendant "remove all official ICAC references to the ICAC investigation Operation Charity, including such references made at the official ICAC website and other official ICAC media/texts".
3. The statement of claim does not disclose any cause of action in relation to the relief sought by these prayers. Further, no basis for jurisdiction to grant the relief is identified by the plaintiffs. As the orders appear to be directed to the first defendant "removing" reports furnished to Parliament, the relief sought is plainly beyond jurisdiction.

Prayer 1(c)

1. The statement of claim does not identify any civil penalty regime applicable to the defendants. No such penalty regime exists.

Prayers 1(d) to 1(g) and 2(a)

1. The plaintiffs seek "compensation … for adverse actions, personal injuries, harm, stress, illness, mental anguish" (prayer 1(d)), "damages for the personal injuries, harm, stress, illness, mental anguish and adverse actions" (prayer 1(f)) and interest on compensation and damages. There does not appear to be any distinction drawn between the claim for compensation and the claim for damages. Both prayers 1(c) and 1(f) appear to be quantified in aggregate in the sum of $247 million, although the basis for that quantification is not set out.
2. The source of the claim for compensation and damages, insofar as it is identified in the statement of claim, has four parts: 1. The carrying out of statutory functions in the course of the investigation of Operation Charity in bad faith. It was claimed that the defendants must exercise their powers and carry out their official duties with care and diligence and, more particularly, had the "duty to fully investigate a matter". This was said to arise under s 73 of the ICAC Act: statement of claim at paras 21, 44 and 48 ("the first part"). 2. A contravention of s 307B of the Crimes Act by providing false or misleading information to Ms Novotny in the email from the second defendant to Ms Novotny of 11 January 2011 (statement of claim at paras 51-54) ("the second part"). 3. A contravention of s 307C of the Crimes Act by producing a false or misleading document, namely the 11 January 2011 email from the second defendant to Ms Novotny (statement of claim at paras 55-58) ("the third part"). 4. A contravention of s 315 of the Crimes Act hindering the investigation by the ICAC into a serious indictable offence, being the "forgery offences" with which the first plaintiff was charged (statement of claim at paras 59-61) by terminating Ms Novotny's services based on a "false and misleading" document produced to her, once again, it would seem, the email from the second defendant to Ms Novotny of 11 January 2011 ("the fourth part").
3. The first defendant's attack upon these pleadings (and related pleadings such as paras 48 and 49 of the statement of claim) was two pronged. There was a challenge based upon the inadequacy of the pleadings, and, further, a substantive challenge as to whether there is any reasonable cause of action disclosed. As to the first of those considerations, I have dealt with prayers 1(a), (b) and (c). In my view, the defendants are on equally good ground with respect to prayers 1(d)-(g) as the statement of claim does not articulate elements of any tortious action. Nor does it plead any allegation of negligence (which consideration I will return to later in the judgment). That said, the balance of my considerations as to these prayers for relief will affix upon the substantive issues raised by the defendants.
4. As to the first part of the summary of the source of the claim for compensation and damages appearing in four parts above, attention may be directed also to paras 48 and 49 of the statement of claim. I will attend to those considerations generally below.
5. As to reliance upon a various contraventions of the Crimes Act the defendants were correct to submit that, even if there was a properly articulated pleading, those pleadings do not give rise to a cause of action because the law does not recognise that the commission of a criminal act in and of itself entitles an action for compensation or damages.
6. Thus, if the sending of an email from the second defendant to Ms Novotney of 11 January 2011 is alleged to constitute the commission of an offence pursuant to the Crimes Act, those allegations do not give rise to a private cause of action against the defendants of the type agitated in the statement of claim.
7. It follows that, insofar as the statement of claim relied upon the alleged commission of offences to ground the plaintiffs' claims for damages and compensation, it disclosed no reasonable cause of action. For completeness, I repeat my earlier finding that, in any event, the pleadings as to the email being knowingly false and misleading in character cannot be sustained upon the pleadings in the statement of claim because the allegation turns on a characterisation of the second defendant's evidence in the Local Court on 25 September 2014 (extracted at para 32 of the statement of claim) which I have found on the face of the material pleaded is not available and does not sustain the allegation.
8. Those considerations direct attention to the first of the four sources of the claim for compensation and damages described above.
9. One such consideration concerned acts of bad faith which as the plaintiff pleaded had a relevant connection to s 109 of the ICAC Act.
10. Section 109(1) of the ICAC Act is in the following terms: 109 Protection from liability (1) No matter or thing done by the Commission, a Commissioner, the Inspector or any person acting under the direction of the Commission, a Commissioner or the Inspector shall, if the matter or thing was done in good faith for the purpose of executing this or any other Act, subject a Commissioner, the Inspector or a person so acting personally to any action, liability, claim or demand.
11. In Sandra Lazarus, Michelle Lazarus and Jessica Lazarus v Director of the Independent Commission Against Corruption [2015] NSWSC 1265, Bellew J considered the effect of s 109(1) on the claims in that case at [40]-[47], holding (at [47]) that s 109 conferred a statutory immunity on ICAC and its officers which operated to prohibit the plaintiffs from advancing their claims as pleaded, except insofar as the plaintiffs alleged that ICAC or its officers acted otherwise than in good faith (those claims were struck out pursuant to r 14.28 of the UCPR).
12. In this case, it appears from the statement of claim at para 44 that the plaintiffs accept that they are required to establish bad faith, albeit that there follows a bare allegation that actions of the first and second defendants "must constitute bad faith".
13. Having regard to my earlier analysis of the statement of claim as to whether the 11 January email represented a false and misleading statement (by reference to the transcript of the second defendant's evidence), the allegation of bad faith as pleaded in the statement of claim cannot be sustained. There are further considerations however arising out of paras 48 and 49 of the statement of claim.
14. The pleading thus fails to disclose any reasonable cause of action and is embarrassing.
15. Paragraph 48 of the statement of claim claims that the defendants were required to exercise their powers and carry out their "official duties" with "care and diligence". The duties referred to appear to be principally those under the ICAC Act.
16. However, as was held by Wilson J in Lazarus, Lazarus & Lazarus v Kane & Ors [2017] NSWSC 1150 ("Lazarus v Kane") at [70]-[72], legal questions concerning the authority of an officer of the ICAC to issue a Court Attendance Notice ("CAN"), and the validity of the prosecutions of the first and second plaintiffs in consequence of the CANs in their cases being signed by an officer of the ICAC were litigated with respect of the second plaintiff in Lazarus v New South Wales Director of Public Prosecutions [2015] NSWSC 1116 ("Lazarus v NSW DPP") at [64]-[91] (leave to appeal was refused: see Lazarus v Director of Public Prosecutions NSW [2016] NSWCA 47), and "[s]ince the legal questions are the same, there is no reason to conclude that the position of [Sandra Lazarus] would be any different to that of [Michelle Lazarus]": Lazarus v Kane at [71].
17. In Lazarus v NSW DPP at [77], Garling J found that the DPP took over the prosecution in accordance with the provision of the Director of Public Prosecutions Act 1986 (NSW) on the first occasion the matter was before the Local Court. As Wilson J noted (Lazarus v Kane at [72]), the validity of the CANs and the prosecutions was also considered in Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 ("Lazarus v ICAC (No 1)"), with the arguments advanced by the first and second plaintiffs being rejected.
18. It should be observed that the primary issue ventilated before the Court of Appeal was whether the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) ("the Validation Act") operated in the plaintiffs' criminal proceedings. The Validation Act inserted Pt 13 into Sch 4 of the ICAC Act following the High Court's decision in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14. Lazarus v ICAC (No 1), McColl, Leeming and Simpson JJA held that the Validation Act was retrospective legislation that applied to all things done or purportedly done by ICAC prior to 14 April 2015, even where they were in issue in pending criminal proceedings (at [101] and [146]). Nonetheless, there was a discussion in the context of questions as to the validity of CANs (at [139]-[143]). Leeming JA ultimately held that even if the CANs were invalid, the Validation Act applied to them in terms (at [143]).
19. It follows that the defendants were correct to submit that, in those respects, the statement of claim did not only disclose no reasonable cause of action but it is also embarrassing.
20. Before turning to the question of statutory duty per se, I note that the first defendant made a submission that any claim based on a breach of that duty or, for that matter, negligence would be statute barred under the Limitation Act 1969 (NSW) to the extent that it concerned injury and damage said to be experienced by the plaintiffs (as pleaded in prayer 2(a) of the statement of claim) since 28 May 2010. Reliance in that respect was placed upon s 14(1)(b) of the Limitation Act, as to the breach of statutory duty (and ss 50C and 50D of the Limitation Act with respect to any negligence claim brought by the plaintiffs insofar as damages were sought with respect to personal injury). The submissions developed in that respect are set out below and are of some substance but it is unnecessary to ultimately decide the questions raised by the defendants. The submissions are as follows: Even assuming the claims encompass personal injuries occurring following 11 January 2011, when the second defendant sent the email to Ms Novotny that is the focus of many of the plaintiffs' claims (or the public inquiry for Operation Charity commenced on 14 February 2011 (SoC at [34]) confirmation by the first defendant that Ms Novotny had not been engaged in April 2011, or the completion of the first defendant's report into Operation Charity in August 2011 (see SoC at [35]), the three year post-discovery limitation period in s 50C would have expired assuming, as the plaintiffs suggest in prayer 2(a) of the SoC, that they were experiencing compensable injuries on a continuous basis from 28 May 2010. If a breach of statutory duty is alleged to have occurred by the sending of the email by the second defendant on 11 February 2011, or indeed a subsequent failure to engage Ms Novotny in the period up to 30 July 2011 (the SoC having been filed on 31 July 2017), the breach of statutory duty claim would be time-barred.

BREACH OF STATUTORY DUTY

1. The breach of statutory duty which appeared to be pleaded by the plaintiffs appeared in para 21 of the statement of claim. I have earlier extracted that pleading.
2. The plaintiffs pleaded, in reliance on s 73 of the ICAC Act, that given the importance of conducting the forensic investigation, contemplated to be conducted through Ms Novotny, the defendants did not fulfil their duty to fully investigate a matter. Further it was contended the defendants failed to provide Ms Novotny with materials she required to complete her examinations.
3. A breach of a statutory duty is limited to circumstances where a statute creates a duty as opposed to a mere power to perform certain acts. In Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15, the High Court of Australia considered a suit of police officers and the State of Victoria brought by the wife of a man who committed suicide at his home. The action was taken for breach of a duty to take reasonable care to protect his health and her health and safety by failing to exercise a power to apprehend the man and arrange him to be examined under s 10(1) of the Mental Health Act 1986 (VIC).
4. The officers in question had found the man in a car park in his car with a hose running from the exhaust pipe to the interior of the car. After questioning, the police officers took no further action. The man left the car park, proceeded to his home and committed suicide whilst sitting in his car with a hose from the exhaust and the running engine. Gummow, Hayne and Heydon JJ discussed the nature and scope of statutory duty at [102] to [106]: A duty to exercise a statutory power? [102] The duty which it is said should be found is a duty to be expressed as part of the single and unified common law of Australia. Yet it is a duty that is said to be owed only by those who have a specific statutory power, and it is a duty that is said to arise out of the "relationship" created by the existence of that power. [103] Whether the asserted duty exists is not determined by whether the conditions for exercise of the statutory power are shown to have existed in a particular case. The existence of facts satisfying those conditions would be a central part of the inquiry about breach. Rather, in deciding whether the officers owed the asserted duty it is necessary to consider what is the duty which it is said is owed by those who have a specific statutory power, and how is that duty said to arise out of the "relationship" created by the existence of that power. Both the specificity of the duty and the nature of the alleged "relationship" require further examination. [104] Argument of the present matter proceeded with little reference to the statute law of other Australian jurisdictions. Yet if the plaintiff is right to say that the police officers owed Mr Veenstra a common law duty of care, it is presumably a duty that finds at least some reflection and operation outside Victoria. [105] State and Territory legislation concerning mental health is not uniform. At the times relevant to this matter, however, all jurisdictions made some provision permitting police officers to apprehend persons who appeared to be mentally ill and who appeared to present danger to themselves or others. Those provisions can be said to be generally similar to s 10 of the Mental Health Act but they were not identical to s 10. [106] Although the duty asserted was, for the reasons given earlier, a duty to take reasonable care to protect from harm by exercising a statutory power, it was a duty to take care by exercising an available statutory power. So understood, it is apparent that the duty could not be confined to the particular power given by s 10 of the Mental Health Act. [Emphasis in original. Footnotes omitted.]
5. Of particular significance in the present matter, I refer to the observations of their Honours at [109] to [110]: [109] The immediate answer to this proposition may be thought to be that this is not what s 10 of the Mental Health Act provides, and no other statutory source of such obligations was identified. But it is necessary to explain why s 10 itself does not found the plaintiff's action and to examine further why the common law does not impose a duty of care. [110] As noted earlier, the plaintiff had pleaded a claim for breach of statutory duty but that claim was not pressed at trial. Because s 10 of the Mental Health Act confers power but does not impose a duty to exercise the power, the abandonment of the claim for breach of statutory duty derived from that Act was inevitable and right. That is, the existence of such a cause of action is not to be inferred from "a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed [or in this case authorised], the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation". [Footnotes omitted.] (It might be noted that the Court proceeded to then deal, in the same context, with the common law duty of care).
6. What then is the nature of the duties reposing under the ICAC Act and in particular s 73 of that Act?
7. In Waterhouse v The Independent Commission Against Corruption (No. 3) [2015] NSWSC 261 ("Waterhouse"), Garling J considered a claim (in the context of an application seeking, inter alia, orders in the nature of mandamus) that the ICAC Act imposed a duty to investigate on the first defendant. His Honour was not considering a tort action for breach of statutory duty as may arise in the present matter, but I agree with the submission of the first defendant that the authority is nonetheless persuasive in the present context as to the construction of the ICAC Act.
8. Garling J found (at [87]) that the ICAC Act "provides for a duty upon the Commission to investigate in only one identified circumstance", namely, that provided in s 73. His Honour noted that s 73 "suggest[s] the use of language within the Act which conveys the differential meaning of a permissive power and a mandatory obligation" (at [88]). His Honour then proceeded to find that the words of s 20(1) of the ICAC Act (conferring the power to investigate on the first defendant) are "clearly empowering and not mandatory" (at [94]) and that "the Commission is given a very broad discretion as to what it should investigate, providing of course that any investigation deals with appropriate conduct, i.e. corrupt conduct as that phrase is defined" (at [95]). His Honour found that neither s 10 nor s 20 of the ICAC Act imposed any duty or obligation on the first defendant to investigate a complaint made to it (at [96]).
9. Returning to the pleadings for compensation and damages as summarised in [38(1)] above, the following difficulties with the claim demonstrating a reasonable cause of action become immediately apparent for the following reasons: 1. Section 73 of the ICAC Act concerns only matters referred to the ICAC by Parliament. The ICAC has a duty to fully investigate such matters: s 73(2). However, there is no allegation in the statement of claim that Operation Charity was a matter referred to the ICAC by the Parliament, nor could such an allegation be made out, Operation Charity not having followed from such a reference. 2. The contention that the defendants failed in their breach of duty to fully investigate in Operation Charity appears to be founded upon the first defendant's decision not to engage Ms Novotny for various reasons. Even having regard to the breadth of the discretion to investigate conferred by s 20 of the ICAC Act, there is no statutory duty to obtain all expert evidence that might bear upon an issue arising in the course of one of its investigations, irrespective of costs of obtaining that evidence or other relevant forensic decisions.
10. In the result, I consider that the statement of claim in this respect discloses no reasonable cause of action for a breach of statutory duty.
11. That conclusion is sufficient to dispose of any action arising for a breach of duty as pleaded. Mention should, however, be made to the alternative submission by the first defendant (which I accept) by reference to O'Connor v SP Bray Ltd (1937) 56 CLR 464 at 477-478 and Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424 as follows: In any event, even if such a duty was identified in the ICAC Act, in order to make out a claim for breach of statutory duty, the plaintiffs would need to establish that the ICAC Act intended a common law cause of action to be available for breach of the duty: O'Connor v SP Bray Ltd (1937) 56 CLR 464; Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 424. There is nothing in the text and context of the ICAC Act capable of supporting an implication that the legislature intended to confer a private, actionable right upon persons concerned that ICAC had breached any duty to "fully investigate".
12. There are two other considerations in this respect. First, it would be necessary for the plaintiffs to establish that it was the breach of statutory duty which caused their loss. This raises a particular obstacle to their claim. The first and second plaintiffs have been prosecuted and convicted of their respective offences arising out of or in connection with Operation Charity. In the proceedings concerning the first plaintiff, she adduced her own handwriting expert. There must be a real question as to whether the plaintiffs could establish a causal link between the failure to obtain evidence from Ms Novotny and their alleged injuries, particularly in the case of any injuries that are said to have arising after the first and second plaintiffs' convictions.
13. Secondly, s 43(2) of the Civil Liability Act 2002 (NSW) provides that in an action for breach of statutory duty by a public authority in connection with the exercise of or a failure to exercise one of its functions: … an act or omission of the authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.
14. Having regard to Annexures 8 and 15 of the affidavit of the first plaintiff, setting out contemporaneous and near-contemporaneous explanations of the basis upon which the first defendant decided not to proceed to obtain expert handwriting evidence from Ms Novotny, the plaintiffs' claim for breach of statutory duty could not satisfy the standard of unreasonableness imposed by s 43(2) of the Civil Liability Act.
15. Accordingly and having regard to all of the requirements in relation to an action for breach of statutory duty set out above, no reasonable cause of action is disclosed by the statement of claim insofar as the legal source of the plaintiffs' damages claim is said to be an action for breach of statutory duty.

Negligence

1. The statement of claim does not contain any express reference to negligence. Further, it is difficult to discern any allegation of negligence from the statement of claim deriving from a duty of care as the nature of any of duty of care is not identified in the statement of claim. On that basis it would seem, notwithstanding the submissions of the first defendant in this respect, unnecessary to deal with the question of negligence.
2. However some brief observations may be made as to a potential claim of that character in the present context. In my view, there is a strong basis to accept the contention by the first defendant that any duty of care which might arise in the context of the pleadings, as have been described above, is bad in law such that no reasonable cause of action is disclosed.
3. If one were to construct a duty of care as might potentially arise out of the statement of claim, the duty would be presumably pleaded as a duty to the plaintiffs to prevent the injuries that have allegedly suffered by virtue of their position as persons whose conduct was the subject of an investigation by the first defendant in Operation Charity (noting that such a duty would be novel and would attract the operation of the principles as to a novel duty identified by Leeming JA (with whom Macfarlan and Simpson JJA agreed) in Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [39]-[46]).
4. In Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59, the following was said about the nature of a duty of care where public authorities or their officers are charged with conducting investigations and/or exercising their powers in the public interest (at [60] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ): [60] The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.
5. As with the investigations the subject of Sullivan v Moody, here the first defendant's functions of investigation and reporting "require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of" the plaintiffs: Sullivan v Moody at [62].
6. Section 12 of the ICAC Act provides that "[i]n exercising its functions, the Commission shall regard the protection of the public interest" as "paramount". The interests of the plaintiffs, as persons suspected of corrupt conduct, are divergent from those of the public in respect of the identification of and reporting on corrupt conduct by the first defendant. The imposition of a duty of care to prevent damage of the kind the plaintiffs allege (which would appear from the prayers for relief in the statement of claim to be at least principally mental harm) would conflict with the obligation to regard the public interest as paramount, including when making decisions as to whether to obtain particular expert evidence that a person the subject of investigation by the first defendant may regard as desirable.
7. In respect of police officers conducting investigations, in Tame v State of NSW (2002) 211 CLR 317; [2002] HCA 35, Hayne J recognised that (at [298]): [298] Police officers investigating possible contravention of the law do not owe a common law duty to take reasonable care to prevent psychiatric injury to those whose conduct they are investigating. Their duties lie elsewhere and to find a duty of care to those whom they investigate would conflict with those other duties. [Footnote omitted.] (See also Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92 at [34]-[64] per Santow JA (with Ipp and McColl JJA agreeing) and Thompson v Vincent (2005) 153 A Crim R 577; [2005] NSWCA 219 at [151]-[155] per Mason P (with Handley JA and Pearlman AJA agreeing)).
8. Accepting that these cases do not concern a duty of care by officers of the first defendant, they nevertheless provide a useful analogy to the position of such investigating officers and indicate the conflicting nature of the first defendant's functions as set out in ss 13 and 14 of the ICAC Act and a duty to prevent damage of the kind the plaintiffs would appear to allege.
9. There are further aspects of the first defendant's submissions as to negligence which I consider to be correct: 51. Furthermore, insofar as the plaintiffs seek damages for pure mental harm, the harm must consist of a recognised psychiatric illness (not something alleged in the SoC; cf s 31 of the Civil Liability Act 2002). To the extent the alleged duty is not to cause mental harm to the plaintiffs, it would be necessary for them to satisfy the requirements of s 32(1) of the Civil Liability Act 2002, which provides that "[a] person ('the defendant') does not owe a duty of care to another person ('the plaintiff') to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken". The SoC does not allege that the defendants ought to have foreseen the matter specified in s 32. 52. Even if the Court was not persuaded that the alleged duty of care is bad in law such that no reasonable cause of action is disclosed, in order for liability to be made out, some different approach by the first and second defendant that would have been a reasonable response to the foreseeable risk of injury to the plaintiffs must be able to be identified prospectively, rather than in hindsight: see State of New South Wales v Briggs [2016] NSWCA 344 at [140]-[141], citing Vairy v Wyong Shire Council (2005) 223 CLR 422 at [124], [126] per Hayne J and Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [20] per Spigelman CJ (concluding "There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness"). 53. Of course, in the present case, no foreseeable risk of injury to the plaintiffs is identified in the SoC. However, the plaintiffs submit that any claim (if made) that the defendants breached their duty of care to the plaintiffs by failing to obtain expert handwriting evidence from Ms Novotny, on the basis that obtaining such evidence was a reasonable response to a foreseeable risk of injury to the plaintiffs, risks reasoning as to breach that is entirely based on hindsight of the kind criticised in the authorities. Any claim that the plaintiffs breached a duty of care to avoid injury to the plaintiffs of the kind they would appear to allege would be so obviously untenable that it could not possibly succeed.

CONCLUSION

1. For the foregoing reasons, I consider that the statement of claim by the plaintiffs discloses no reasonable cause of action. It is not appropriate to permit a re-pleading of the statement of claim as the pleadings are not amendable to rectification in that way.
2. In the circumstances, it is appropriate to grant the first prayer for relief of the notice of motion. The first defendant should also have an order for costs in relation to the motion (per the third prayer for relief). It is unnecessary to rule on the second prayer for relief.
3. Submissions were not received with respect to the fourth prayer for relief. It would be appropriate for a further submission to be advanced in that respect by the first defendant indicating whether it was appropriate to hear the plaintiff in relation to that prayer. That consideration can await the making of orders with respect to the first and third prayers for relief of the notice of motion (with any further submissions filed within 14 days of the making of those orders). Costs in that respect are reserved.

DIRECTION

1. The first defendant shall bring in short minutes of order reflecting this judgment within 14 days of the publication of this judgment.

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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: 28 June 2018