Moriarty v Independent Commissioner Against Corruption

Whether ICAC failed to afford the plaintiff procedural fairness by failing to ensure and/or permit re-examination of, or submissions by, the plaintiff prior to serving notice of proposed adverse findings under s 50(2) - no denial of procedural fairness

Whether ICAC failed to afford the plaintiff procedural fairness by failing to put all matters on which the proposed findings based to the plaintiff during examination under s 34 - no denial of procedural fairness

Whether ICAC denied the plaintiff procedural fairness by failing to ensure that any relevant exculpatory material of information was disclosed to the plaintiff - no denial of procedural fairness

ICAC Act - the plaintiff was a member of the DTCI Board - ICAC made adverse findings against DTCI Board - plaintiff not served with notice of proposed adverse findings against the Board under s 50(2) - other Board members served with notice of proposed adverse findings - other Board members also served with notice under s 147 prohibiting them from disclosing the proposed adverse findings against the Board to the plaintiff - held ICAC failed to accord the plaintiff procedural fairness - held ICAC had no jurisdiction under s 50 to make adverse findings against the plaintiff in his capacity as a Board member

Whether ICAC erred by making adverse findings against the plaintiff that had no evidentiary basis or which could not reasonably be made on the evidence or reasonably inferred from facts found - held there was an evidentiary basis from which the adverse findings could rationally be made

ICAC Act ss 50 and 55 - whether ICAC published the Report in a manner that was not authorised pursuant to s 50 and/or s 55 - held publication of the Report to the Chief Minister and the Minister for Racing Gaming and Licensing authorised by s 50 - publication of Report to the public on the ICAC website authorised by s 55

Associations Act 2003 (NT)

Crown Proceedings Act 1993 (NT), s 8(2)

Independent Commissioner Against Corruption Act 2017 (NT), s 3, s 13(2), s 17, s 18, s 18(1)(a), s 18(1)(b), s 18(1)(c), s 18(1)(d), s 18(1)(e), s 18(2), s 34(2), s 18(5), s 19, s 20, s 21, s 31, s 31(1), s 32(1), s 33(1), s 34, s 34(1), s 34(2)(c), s 38(1), s 50, s 50(1), s 50(2), s 50(3)(b), s 50(3)(c), s 50(7), s 50(7)(1)(a), s 50(7)(a)(i), s 50(7)(a)(ii), s 55, s 55(1), s 55(2)(a), s 55(2)(e), s 55(2)(f), s 55(3), s 55(3)(a), s 55(3)(b), s 55(3)(c), s 59, s 82, s 147, s 147(1), Part 3, Division 1, Division 2, Division 3, Division 4, Division 5

Police Administration Act 1978 (NT), Part II

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; 222 ALR 411; 87 ALD 512; [2005] HCA 72; Carrascalao v Minister for Immigration [2017] FCAFC 107; (2017) 252 FCR 352; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576; 127 ALR 699; 34 ALD 324; CRU18 v Minister for Home Affairs [2020] FCAFC 129; (2020) 277 FCR 493; Greiner (1992) 28 NSWLR 125; Hossain v Minister for Immigration & Border Protection [2018] HCA 34; (2018) 264 CLR 123; Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149; Kioa v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550; 62 ALR 321; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Border Protection v SZSSJ (2016) 334 ALR 653; [2016] HCA 29; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; 326 ALR 1; [2015] HCA 40; Obeid v Ipp [2016] NSWSC 1376; (2016) 338 ALR 234; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100; Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 75 ALJR; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; 67 ALR 21; 4 MVR 542; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; 93 ALD 300; [2006] HCA 63; Turner v Northern Territory [2021] NTSC 55; Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88, applied

C v The Independent Commissioner Against Corruption [2020] SASCFC 57; D'Amore v ICAC [2013] NSWCA 187; (2013) 303 ALR 242; Kazal v Independent Commissioner Against Corruption [2019] NSWSC 556, referred to

Moriarty v Independent Commissioner Against Corruption (NT)

[2022] NTSC 46

INDEPENDENT COMMISSIONER AGAINST CORRUPTION (NT)

• [1] The plaintiff in this matter is seeking judicial review of the conduct of the Independent Commissioner Against Corruption (NT) ("ICAC") in relation to the report published on 24 and 25 July 2021 entitled "Investigation into the application for award and expenditure of a grant to the Darwin Turf Club Inc ("DTCI") for a public grandstand" ("the Report").
• [2] The Report related to an investigation by the defendant into the grant of $12 million to DTCI to build a multi-purpose grandstand, and the awarding of the contract to build the grandstand to Jaytex Constructions Pty Ltd ("Jaytex"), a company owned by the president of DTCI, Mr Dixon.
• [3] The amended originating motion seeks:
  • a declaration that certain determinations in the Report which consist of adverse findings against the plaintiff ("the Adverse Findings") are in excess of jurisdiction;
  • a declaration that the Adverse Findings were made without affording the plaintiff procedural fairness;
  • a declaration that the Adverse Findings were subject to jurisdictional error/were contrary to law and are a nullity;
  • a declaration that publication of the Report to the public and to certain Government Ministers was in contravention of the Independent Commissioner Against Corruption Act 2017 (NT) ("ICAC Act"); and
  • an order in the nature of mandamus requiring the defendant to remove the Report from its website.

• [4] In Hossain v Minister for Immigration & Border Protection,[1] Kiefel CJ, Gageler and Keane JJ summarised the general principles involved in the judicial review of administrative actions authorised by statute.

(a) 'Jurisdiction' refers to the scope of the authority which a statute confers on a decision maker to make a decision of a kind to which the statute then attaches legal consequences. The term encompasses: (i) all of the preconditions which the statute requires to exist in order for the decision maker to embark on the decision making process; and (ii) all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision making process in order for the decision maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have such force and effect as is given to it by the law pursuant to which it was made.[2]

(b) 'Jurisdictional error' correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision maker purported to make it.[3]

(c) A decision involving jurisdictional error is a decision made outside jurisdiction, which is a decision in fact, but is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as no decision at all.[4]

• [5] Affording procedural fairness is, in general, part of such conditions. A requirement to observe the principles of procedural fairness can be either express or implied but where it is attached to a statutory power and governs its exercise, a failure to fulfil the condition constitutes a jurisdictional error meaning that the exercise of the power is inefficacious, not authorised by the statute and, hence, invalid.[5]
• [6] The ICAC is amenable to declaratory relief for jurisdictional error. The plaintiff concedes that an order in the nature of certiorari is not available to the plaintiff because the Report does not itself have legal consequences.[6] The defendant contends that the Court does not have jurisdiction to make an order in the nature of mandamus requiring the defendant to remove the Report from its website as a consequence of s 8(2) of the Crown Proceedings Act 1993 (NT) which provides that a mandatory injunction is not to be made against the Crown. However, the defendant has indicated that the ICAC is prepared to give an undertaking to remove the relevant parts of the Report if the Court makes a declaration that the making of those parts of the Report or the publication of the Report was beyond jurisdiction.

• [7] The Report contains a narrative of events in the course of which various primary findings of fact are made, many of which are adverse to various individuals including the plaintiff. Those primary findings are then drawn upon to support findings of improper conduct by five named individuals, including the plaintiff, and by DTCI and the Board of DTCI. The Adverse Findings complained of in the amended originating motion consist of findings that the plaintiff engaged in improper conduct (misconduct and unsatisfactory conduct) contained at paras [457], [458] and [459] of the Report;[7] and findings that the DTCI and the DTCI Board, of which the plaintiff was a member, engaged in improper conduct (unsatisfactory conduct and/or breach of public trust) at paras [439], [440], [442], [444], [446] and [451] of the Report.[8]
• [8] The paragraphs complained of, which contain Adverse Findings against the plaintiff personally ("the Personal Adverse Findings") read as follows:

457. I refer to the findings about the public statements Mr Moriarty made.

458. The making of the public statements was "misconduct" within the definition in section 11(2) of the ICAC Act because the conduct:

1. constitutes reasonable grounds for taking disciplinary action against Mr Moriarty by DTCI;

The statements were false and connected with the discharge of his functions as a member of the Board. They provided the basis for DTCI to take action to sanction his conduct as a member of the Board.

The statements were made in connection with a matter of public controversy, being the awarding of the tender contract to Jaytex to build the grandstand with public resources;

1. "involves" "dishonesty" or "results" in a failure "to manage adequately an actual or perceived conflict of interest" within the meaning of section 10(2)(c).

The conduct involves dishonesty because the statements made were false.

Mr Moriarty failed to manage an actual or perceived conflict of interest because his statements involved false representations about an actual conflict of interest of the Chairman, Mr Dixon.

459. It was also "unsatisfactory conduct" by Mr Moriarty within the definition in section 12 of the ICAC Act because the conduct:

The statements were false, and it was improper by ordinary standards to misrepresent the true position on a matter as significant as the involvement of Mr Dixon in the Board's process, and to represent that he knew Mr Dixon was not involved in Jaytex's bid when he could not speak to that issue.

The statements were made in connection with a matter of public controversy being the awarding of the tender contract to Jaytex to build the grandstand with public resources;

1. results in a "substantial detriment to the public interest".

There was a substantial detriment to the public interest arising from the making of the statements because they, in combination with other similar statements by Mr Dixon and the conduct of Mr Stacy, concealed the true position of Mr Dixon's involvement, and inhibited action being taken by the NTG under the Grant Agreement to prevent the award of the grandstand tender to Jaytex.

• [9] The plaintiff also complains about findings of unsatisfactory conduct and breach of public trust made against him as a member of the Board of DTCI ("the Board Adverse Findings"). The Board Adverse Findings complained of in the amended originating motion are as follows.
  1. Failure of the DTCI Board to exclude Mr Dixon from any aspect of its deliberations of the grandstand tender process and failure of Mr Stacy to inform the Board of Mr Dixon's conflict

439. I refer to the findings that the DTCI Board did not act to exclude Mr Dixon from its deliberations about the grandstand (and further permitted his direct involvement), and the failure of Mr Stacy to inform the Board of Mr Dixon's conflict.

440. The conduct of the DTCI Board was "unsatisfactory conduct" within the definition in section 12 of the ICAC Act because the conduct:

A reasonable public body in the position of DTCI knowing what it knew of the potential for Mr Dixon's company to bid for the project, and knowing that he was present at board meetings, would have excluded him from any deliberations about the tender process it was to establish, and further, would not have permitted his involvement in decision making on that issue.

A competent public body would have similarly acted.

The failure to exercise that power was connected with public affairs because it was concerned with how DTCI was to conduct a tender process in relation to public resources provided by the NTG.

1. results in a substantial detriment to the public interest.

There was a detriment to the public interest arising from the failure to exclude Mr Dixon from the DTCI Board.

The public interest in this instance, as required by the Grant Agreement, was in a process in which no party had an actual or potential conflict of interest. That served the interest of ensuring that the process taken in the allocation of public resources was not affected by any party's commercial interests.

That was a significant detriment to that public interest because his involvement meant that did not occur.

Furthermore, the effect of his non-exclusion and participation was to place Mr Dixon in a position where he advanced a particular type of tender process, arranged on behalf of DTCI for certain entities to undertake work, including Mr Savvas, and was involved in the nomination of, and payment of, remuneration to Mr Moriarty. That all occurred while he was involved in the tender process on behalf of Jaytex.

There is a substantial detriment to the public interest in Mr Dixon's involvement in both aspects of the tender process for DTCI, and in preparing a bid, given it involved public resources.

1. Breach by the DTCI Board of its obligations under the Capital Grant Funding Agreement with NTG by not disclosing a conflict of interest

442 The conduct of DTCI and Mr Dixon was "unsatisfactory conduct" within the definition in section 12 of the ICAC Act because the conduct:

A reasonable public body in the position of DTCI would have made a disclosure as required by the Grant Agreement, at the time of its signing and thereafter.

A competent public body would have similarly acted.

Further, a reasonable public officer knowing their obligations under the Grant Agreement to make disclosure, would have done so.

The failure to make that disclosure because it was concerned with how DTCI was to conduct a tender process in relation to public resources provided by the NTG.

1. results in a substantial detriment to the public interest.

There was a detriment to the public interest arising from DTCI's and Mr Dixon's failure to inform the NTG of his actual or potential conflict of interest at the outset.

The public interest in this instance, as defined by the Grant Agreement, was in a process in which no party had an actual or potential conflict of interest. That served the interest of ensuring that the process taken in the allocation of public resources was not affected by any party's commercial interests.

That was a significant detriment to the public interest because Mr Dixon's continued involvement in the Board's process was unknown by the NTG.

Furthermore, the effect of his non-exclusion and participation was to place Mr Dixon in a position where he advanced a particular type of tender process, arranged on behalf of DTCI for certain entities to undertake work, including Mr Savvas, and was involved in the nomination of and payment of remuneration to Mr Moriarty. That all occurred while he was involved in the tender process on behalf of Jaytex.

There is a substantial detriment to the public interest in Mr Dixon's involvement in both aspects of the tender process for DTCI, and in preparing a bid, given it involved public resources.

1. Failure of DTCI to ensure there was oversight over the Board's processes by a probity auditor

444. That conduct was "unsatisfactory conduct" within the definition in section 12 of the ICAC Act because the conduct:

A reasonable public body in the position of DTCI, knowing what it knew of the potential for Mr Dixon's company to bid for the project (and later learning it intended to do so when it registered), would have ensured that there was probity oversight over the Board's processes.

A competent public body would have similarly acted.

The failure to engage such an advisor was connected with public affairs because it was concerned with how DTCI was to develop and then conduct a tender process for a project funded by public resources provided by the NTG.

1. resulted in a substantial detriment to the public interest.

There was a detriment to the public interest arising from the failure to have that oversight because:

• it would have ensured Mr Dixon was not involved in the Board's deliberations or decisions about the grandstand tender;
• it would have enquired and established by appropriate means whether or not Mr Dixon was involved in the tender submitted by Jaytex;
• it would have ensured adherence by DTCI to its obligations under the Grant Agreement in relation to conflicts of interest.

The public interest in this instance, as defined in the Grant Agreement, was in a process in which no party had an actual or potential conflict of interest. That served the interest of ensuring that the process taken in the allocation of public resources was not affected by any party's commercial interests.

That was a significant detriment to the public interest because his involvement meant that did not occur.

Furthermore, the effect of his non-exclusion and participation was to place Mr Dixon in a position where he advanced a particular type of tender process, arranged on behalf of DTCI for certain entities to undertake work, including Mr Savvas, and was involved in the nomination of and payment of, remuneration to Mr Moriarty. In addition, he had knowledge of the process not possessed by any other tenderer. That all occurred while he was involved in the tender process on behalf of Jaytex.

There is a substantial detriment to the public interest in Mr Dixon's involvement in both aspects of the tender process for DTCI, and in preparing a bid, given it involved public resources.

1. Incompetence of DTCI in the assessment of merit of the tenders by failing to identify the existence of variations, and treating them as innovative so as to favour Jaytex

446. The analysis of those tenders involved "unsatisfactory conduct" by DTCI within the definition in section 12 of the ICAC Act because the conduct:

A reasonable public body in the position of DTCI assessing the tenders would have known that it was a requirement of the tender process that, if there was a variation from fixed design elements, such a departure required approval. Further, such a departure was not to be rewarded in the tender process as an innovation, notwithstanding it conflicted with the fixed requirements of the tender.

A competent public body would have similarly so acted.

• ascertained that the tender application from Jaytex involved a departure from the fixed design elements specified in the tender documentation,
• determined that approval was required,
• addressed that difference with other tenderers,
• not rewarded that variation as an innovation so as to confer a benefit on Jaytex over other tenders.

The negligent and incompetent conduct led to awarding of the contract to Jaytex to build the grandstand with public resources;

1. results in a substantial mismanagement of public resources and/or substantial detriment to the public interest;

There was a substantial detriment to the public interest arising from the failure because public resources were, through the tender process, being contracted in a manner that was not fair and equitable to the tender parties.

There was a substantial mismanagement of public resources because the result of failing to identify the departure from the tender documents and rewarding of the departures as innovation, undermined the validity of the scoring to such an extent that, on the process as undertaken, Jaytex would not have been the winner. More properly a different process would have to have been undertaken.

• [10] The reference in the amended originating to para [451] of the report may be an error: that paragraph refers to Mr Stacy, not the plaintiff or the DTCI Board.
• [11] The Adverse Findings refer back to, and are based on, earlier findings in the Report. In summary, the Personal Adverse Findings all arise out of public comments made by the plaintiff about Mr Dixon's lack of involvement in the Board's processes in relation to the project which the defendant found to be false and dishonest, and to the effect that Mr Dixon was not involved in Jaytex's bid for the project when the defendant found the plaintiff had no knowledge about that issue. The Board Adverse Findings relate to the failure of the Board to exclude Mr Dixon from Board deliberations relating to the project; a breach of its obligations under the Capital Grant Funding Agreement ("the Grant Agreement") with Northern Territory Government ("NTG") by not disclosing a conflict of interest; incompetence in its assessment of the merit of the tenders in a way which favoured Jaytex; and what the defendant found was the Board's failure to have in place a process for managing probity over its decision making processes.

• [12] The background facts in this matter are not in dispute between the parties to this proceeding. The following summary is taken from the Report, the defendant's submissions and the plaintiff's submissions.
• [13] In 2018, Mr Dixon was the chairman of DTCI. He was also a director and shareholder of Jaytex. Sometime before February 2018, Mr Dixon developed a proposal to build a new grandstand at the Darwin Turf Club. He asked his co-director at Jaytex, Mr Moss, to have designs for the grandstand prepared by Concept Designs, a company with a longstanding business relationship with Jaytex.
• [14] While this was being done, Mr Dixon and Mr Leonardi, a former chief of staff to the Chief Minister, attempted to secure a government grant for the proposal. They were initially unsuccessful.
• [15] However, on 14 June 2019, the NTG decided to approve the making of a grant for that purpose. The project was to be entirely publically funded; the contract for the project would be awarded through a competitive public tender managed by DTCI; but the NTG would retain a veto on the appointment of a head contractor by DTCI.
• [16] On 17 June 2019 a meeting was held at Mr Dixon's house attended by Mr Dixon, Mr Moss, the CEO of DTCI and representatives of some companies associated with Mr Dixon who would later work on the project. Drawings were discussed and quotes were sought from Jaytex's designers and engineers. These then formed the basis of the proposal that was later put to the DTCI Board.
• [17] On 18 June 2019, Mr Dixon informed the DTCI Board of the grant. He explained the design and concept of the project and how the tender process would be structured. Among other things he explained that there would be a design and construct tender; that he had already engaged a firm of quantity surveyors; and that he had sought quotes from Concept Designs and a firm of engineers. The Report stated that the reaction to this announcement was "one of surprise and astonishment".[9]
• [18] At the 18 June Board meeting, Mr Dixon also moved for the appointment of the plaintiff (who had construction experience) to assist DTCI to prepare the project for tender. Mr Dixon did not declare any conflict of interest at the 18 June meeting although the Report contained a finding that he knew that Jaytex would be tendering for the project.[10]
• [19] DTCI subsequently appointed the plaintiff as project manager and the plaintiff drafted a letter to the NTG recommending his appointment. That draft was sent to Mr Dixon who approved it and also recommended that the plaintiff submit a fee offer for his work on the project. (This had not been discussed at the Board meeting.)
• [20] In the meantime, on 21 June 2019, Mr Dixon, in his capacity as chairman of the DTCI Board, signed the Grant Agreement with the NTG. The Grant Agreement included a warranty that DTCI was not aware that any of its officers had a conflict of interest which would impair the ability of DTCI to perform its obligations under the Grant Agreement.
• [21] The Grant Agreement included a clause requiring the approval of the NTG for the appointment of a project manager and required the project manager to be bound by certain obligations which protected the NTG's ongoing interest in the project. This included DTCI's obligations under clause 15 of the Grant Agreement to notify the NTG of any conflict of interest. The plaintiff's appointment as project manager was approved and the plaintiff agreed in correspondence to be bound by those obligations.
• [22] In late June and early July 2019, the plaintiff did significant work preparing the tender documentation, based on the framework presented to the Board at the 18 June meeting, which had been prepared at the 17 June meeting at Mr Dixon's house.
• [23] At the same time, Mr Dixon and Mr Moss were preparing Jaytex's bid for the project.
• [24] On 13 July 2019, DTCI formally sought expressions of interest for tender. As Jaytex had foreknowledge of the project, Mr Moss wrote to DTCI on the same day lodging Jaytex's expression of interest.
• [25] On 28 July 2019, after Mr Dixon had recommended that he submit a fee offer, the plaintiff wrote to the Board executive requesting that he be paid for his work and mentioning the prospect of work beyond the award of the tender. Mr Dixon, as chairman of DTCI wrote back the same day thanking the plaintiff for his exemplary work , stating that it was his intention that the executive Board recommend that the Board accept the fee proposal and indicating that the plaintiff's ongoing services after August 2019 would be considered once the tender was awarded.
• [26] The project was discussed again at a Board meeting on 30 July 2019. Mr Dixon chaired the meeting and participated in discussions about the project. The plaintiff also attended the meeting. At the meeting, Mr Dixon moved that the plaintiff be paid $33,000 for preparing the tender documentation. No declaration of any conflict of interest was made at the 30 July meeting. (There was no suggestion in the Report that the payment to the plaintiff was improper or that he had not earned the fee paid to him. The Report was concerned with Mr Dixon's participation in the process.)
• [27] Following that meeting, the plaintiff established a Tender Assessment Panel to review the competing tenders. Jaytex was awarded the tender on 28 August 2019. The Report contains findings that the tender assessment process conducted by DTCI favoured Jaytex in a number of ways.
• [28] There was considerable public controversy about the tender being awarded to a company owned and controlled by Mr Dixon. Thereafter, the NTG took steps to investigate whether it should exercise its power under the Grant Agreement not to approve Jaytex as the head contractor for the project.
• [29] Mr Dixon wrote an email to the Chief Minister saying that he had "removed [himself] from all Darwin Turf Club meetings that had anything to do with the project or the tender process" and "played no part in the preparation of the Jaytex tender". The email stated that Mr Dixon had removed himself from all Board meetings about the project since June 2019. Mr Dixon sent a draft of that email correspondence to the plaintiff. Mr Dixon made press statements to the same effect. The Report contained findings that these statements by Mr Dixon were false and had been made with the purpose of preventing the exercise of the NTG's power not to approve Jaytex as the head contractor on the project, contrary to Jaytex's interests.
• [30] The plaintiff spoke to members of the press on the topic. On 4 September 2019, he was reported in the NT News as having said, "Mr Dixon was at arm's length from this process at all times. Once the announcement was made about the project, he was no longer involved in any of the processes, including Jaytex's submission."
• [31] On 6 September 2019, the plaintiff was reported as having said to the ABC, "From the outset, [Mr Dixon] has stepped away from the process identifying his own potential conflict. We went through a very diligent process. We had a probity advisor who was with us every step of the way." (These statements are referred to in the Report and in these reasons as "the Moriarty Statements".)
• [32] The Moriarty Statements form the basis for the Personal Adverse Findings in relation to which the plaintiff claims relief in this proceeding.
• [33] The Report contains findings that the Moriarty Statements were false and that at least one of the purposes for making the Moriarty Statements was to protect Mr Dixon's interests.[11] The Report also contained findings that the end result was that the NTG's investigation was frustrated; the NTG determined that it was unable to exercise its powers under the Grant Agreement to not approve Jaytex as the head contractor; and Jaytex was permitted to enter into the contract to perform the project which was signed by Mr Dixon and Mr Moss on behalf of Jaytex on 30 September 2019.[12]
• [34] On 30 November 2018, in response to protected disclosures, the ICAC commenced an investigation under Part 3, Div 5 of the ICAC Act. Initially, the investigation concerned "an allegation of lack of transparency in the awarding of the $12 million grant to the Darwin Turf Club to construct a multi-purpose grandstand".
• [35] On or about 2 April 2020 the plaintiff received a notice to attend the office of the ICAC for examination pursuant to s 34 of the ICAC Act. The notice advised that the plaintiff was not under investigation. On 16 April 2020 the plaintiff attended the office of the ICAC and was examined ("the First Examination"). At this time the plaintiff was also verbally advised that he was not under investigation.
• [36] Later the investigation was expanded to include the "management and transparency of the tender process in relation to the construction of the Darwin Turf Club multi-purpose grandstand" and the provision of public money to Thoroughbred Racing Northern Territory.
• [37] On 14 September 2020, an Investigator with ICAC had an informal meeting in a café with Ms Lorimer, a member of the DTCI Board. During that informal meeting the investigator asked Ms Lorimer questions about the plaintiff. Ms Lorimer praised the work done for DTCI by the plaintiff and expressed the view that the remuneration he received was more than reasonable. Unbeknown to Ms Lorimer, another investigator from ICAC was secretly listening to the conversation through a listening device and the conversation was clandestinely recorded ("the clandestine recording").
• [38] After this occurred, on or about 28 September 2020 the plaintiff received a second notice to attend for examination pursuant to s 34 of the ICAC Act. An amended version of the second notice, which changed the date of the hearing, was received by the plaintiff on 2 October 2020. These notices advised that the plaintiff was not under investigation.
• [39] On 8 October 2020, pursuant to the second notice, the plaintiff attended the office of the ICAC and was examined ("the Second Examination"). At the Second Examination the plaintiff was again advised by the defendant that he was not under investigation.
• [40] During the Second Examination the plaintiff's solicitor requested that the plaintiff be given an opportunity for re-examination and submissions and was informed that the plaintiff would be given such an opportunity on a later occasion.
• [41] On 18 November 2020 the plaintiff's solicitor sent an email to Mr Goff of the office of the ICAC in which he reiterated the request to be given an opportunity for re-examination and submissions. Mr Goff did not respond to that request.
• [42] During this time, the plaintiff was subject to directions pursuant to s 147 of the ICAC Act that prohibited disclosure of information given to the plaintiff by the ICAC; disclosure that an investigation was being or had been conducted by the ICAC; or disclosure that the plaintiff had been required to give information or an item to the ICAC. As a result of the notice issued under s 147 of the ICAC Act, the plaintiff was not permitted to discuss the ICAC investigation with the DTCI Board, or disclose the existence of that investigation.
• [43] On 7 May 2021 the plaintiff received a letter from the office of the ICAC advising that the ICAC was considering making findings of improper conduct on the part of the plaintiff concerning the Moriarty Statements and enclosing an extract of a proposed report. (This extract is referred to in these reasons as the "Personal Natural Justice Extract".) The letter enclosing the Personal Natural Justice Extract stated (inter alia), "Most, if not all, matters the subject of potential adverse findings, were put to you in the examination," and invited the plaintiff to provide a response within 24 days. The Personal Natural Justice Extract contained a number of tentative adverse findings against the plaintiff ("the proposed findings").
• [44] On 24 May 2021, the plaintiff made some preliminary submissions, sought access to certain documents, including a complete transcript of the plaintiff's examination and copies of all annexures referred to in the Personal Natural Justice Extract, and sought an additional two weeks within which to prepare a response. After some initial refusals by staff and further correspondence from the plaintiff's solicitors, those requests were acceded to; the plaintiff was granted an extension of 14 days from the provision of the material requested; and, on 11 June 2021, the plaintiff's solicitors submitted a written response to the proposed findings ("the Response").
• [45] As part of the correspondence between the office of the ICAC and the plaintiff's solicitor, on 26 May 2021 the ICAC offered the plaintiff the opportunity to attend the ICAC office with counsel and be re-examined and make submissions.
• [46] On 4 June 2021 the plaintiff's solicitor emailed the defendant advising that, having considered the requested material, re-examination was not required and the matters the plaintiff wished to raise could appropriately be made by way of submissions, but insisting that the opportunities offered by the ICAC did not and could not remedy procedural deficiencies in formulating the proposed findings against the plaintiff previously identified by the solicitor.
• [47] Before receiving the Personal Natural Justice Extract and covering letter, the plaintiff had never been advised that he was under investigation by the ICAC or that there was a possibility that adverse findings might be made against him.
• [48] Also on 4 May 2021 a Senior Investigator with the ICAC sent the public officer of DTCI an email advising that the ICAC was considering making findings of improper conduct on the part of DTCI and enclosing another extract of the proposed report. (This extract is referred to in these reasons as the Board Natural Justice Extract.)
• [49] The Board Natural Justice Extract contained paragraphs setting out proposed findings of unsatisfactory conduct and breach of public trust on the part of DTCI and the DTCI Board. These were not in the Personal Natural Justice Extract, and the plaintiff was not served with the Board Natural Justice Extract.
• [50] On 11 May 2021, DTCI Board members other than the plaintiff and Mr Dixon (and possibly one or two others against whom adverse findings were later made), were served with modified directions pursuant to s 147 of the ICAC Act prohibiting them from (inter alia) disclosing any information given to them by the ICAC but with this exception:

This direction does not apply for the purpose of limited disclosure to members of the Darwin Turf Club Board of Directors with the exception of Mr Brett DIXON and Mr Damien MORIARTY, as necessary to discuss the Independent Commissioner Against Corruption's Investigation Report - Morgan Natural Justice Extract dated May 2021.[13]

• [51] On 20 May 2021, DTCI's solicitor requested a variation to the s 147 directions to allow a comprehensive discussion among the whole of the Board to take place and advised that it was impossible for the Board to provide a comprehensive reply to all parts of the Report without discussing sections of the Board Natural Justice Extract with Mr Moriarty and Mr Dixon. This request was denied.
• [52] On 24 June 2021, the ICAC made the Report to the Chief Minister and to the Minister for Racing, Gaming and Licencing, purportedly pursuant to s 50 of the ICAC Act. (In the amended originating motion, the plaintiff claims that this was not authorised by the ICAC Act and was beyond jurisdiction.)
• [53] On 25 June 2021 the Commissioner published a document entitled "Investigation into the application for, award and expenditure of a grant to the Darwin Turf Club for a public grandstand - By the length of the straight" on the ICAC website. This document is headed "Public Statement" and is in substantially the same terms as the Report. (Other than the change in title, and a typographical error in the numbering of the later paragraphs, the Public Statement is identical to the report provided to the Minister and Chief Minister. Both documents are hereafter referred to interchangeably as "the Report". The references in this judgment to paragraph numbers in the Report are references to the paragraph numbers in the Public Statement.)
• [54] The Report contains the proposed findings foreshadowed in the Personal Natural Justice Extract in substantially the same form. The only substantive differences are that paras [629] to [631] of the Report note that para [458] of the Report as formulated in the proposed findings at para [55] had not been intended to imply that the plaintiff had already been sanctioned, and the proposed finding was amended accordingly.
• [55] In addition to the proposed findings, the Report also made adverse findings against the DTCI Board of which the plaintiff was a member.
• [56] Prior to receipt of the Report the plaintiff had never been advised that there was a possibility that adverse findings might be made against him in his capacity as a member of the Board, although the factual findings upon which these adverse findings were made were included in the Personal Natural Justice Extract, the plaintiff was invited to respond to them and did respond to some of them in the Response.

• [57] The objects of the ICAC Act are set out in s 3.

The object of this Act is to address wrongdoing in, or connected with, public administration by:

(a) preventing or minimising the occurrence of improper conduct; and

(b) improving public confidence that improper conduct will be detected and dealt with appropriately; and

(c) providing incentives and reducing disincentives to persons to assist in the detection, reporting, investigation, prosecution and prevention of improper conduct; and

(d) protecting persons who put themselves at risk of harm by exposing or reporting improper conduct; and

(e) augmenting the Territory's existing framework for responding to improper conduct by establishing an Independent Commissioner Against Corruption intended to:

(i) investigate the most serious, systemic and sensitive improper conduct; and

(ii) ensure that other improper conduct is dealt with, either by an appropriate existing entity or, if the ICAC considers it appropriate, by the ICAC; and

(iii) coordinate a response to improper conduct when multiple entities have jurisdiction in relation to the matter; and

(iv) facilitate the prosecution of offences involving improper conduct.

• [58] The ICAC is established by s 17 of the ICAC Act. Under s 18, the ICAC is conferred with the functions of identifying and investigating improper conduct;[14] protecting people who have assisted or may assist in detecting, preventing, investigating or otherwise responding to improper conduct;[15] preventing, detecting and responding to improper conduct by a range of means including making public comment;[16] overseeing how matters are dealt with by entities to which the ICAC has referred matters;[17] and performing functions conferred on the ICAC by another Act.[18] The ICAC may perform functions under the ICAC Act in relation to any matter that may involve improper conduct.[19] Subject to the ICAC Act, the ICAC may perform the ICAC's functions in any manner the ICAC considers appropriate.[20]
• [59] By s 19 of the ICAC Act, the ICAC may do "all things necessary or convenient" to be done for or in relation to, the performance of the ICAC's functions.
• [60] Section 20 provides that if the ICAC has a discretion in performing a function under the ICAC Act, the ICAC is to act in the public interest, taking into account the matters set out in Schedule 1 that the ICAC considers relevant and appropriate in any particular case.
• [61] Matters set out in Schedule 1 include the public interest in the general deterrence of improper conduct (cl 2(i)), the desirability of the public sector being open and accountable to the public (cl 5(a)), the benefit of exposing improper conduct to public scrutiny (cl 5(b)), the extent to which allegations of improper conduct are already in the public domain (cl 5(c)), and any other circumstances the ICAC considers relevant (cl 6).
• [62] Section 21 provides that the ICAC is not subject to direction by any person about the way the ICAC performs its functions under the ICAC Act or the priority given to any particular matters.
• [63] Part 3 of the ICAC Act establishes the scheme by which the ICAC identifies and deals with improper conduct. That Part establishes regimes for mandatory reporting of suspected improper conduct (Division 1), audits and review to identify improper conduct (Division 2), the making of preliminary inquiries (including by use of coercive powers) to determine whether to investigate improper conduct or make a public statement (Division 3), and the referral of matters to other entities that may involve improper conduct (Division 4).
• [64] Pursuant to Division 5 of Part 3, if the ICAC has, or is aware of, information that, if true, would tend to show that improper conduct has occurred, is occurring or is at risk of occurring, the ICAC may commence an investigation into whether that is the case.[21] For the purpose of conducting an investigation, the ICAC may require a person to answer specified questions or produce a specified item;[22] may inspect financial records;[23] may require a person to attend for examination[24] and may conduct the investigation in conjunction with a referral entity.[25] Those powers are not limited to being exercised in respect of persons under investigation. Section 34(2)(c) states that "if a person is under investigation", a notice requiring that person to attend for examination must state that fact.
• [65] Once an investigation is concluded, the ICAC may make an investigation report to a "responsible authority" for the public body or public officer whose conduct is the subject of the investigation (s 50(1)). A "responsible authority" is generally an entity having authority to deal with one or more matters relating to improper conduct the subject of the investigation or an entity whose functions include making future decisions in the public interest that may be better informed by receipt of the investigation report (s 50(7)).
• [66] If the ICAC proposes to make an adverse finding about a person or body in an investigation report, the ICAC must give the person or body a reasonable opportunity to respond to the adverse material and must include a fair representation of the response in the report.[26]
• [67] The investigation report may include a finding as to whether a person has engaged in, is engaging in or is about to engage in improper conduct and may include information as to whether an allegation of improper conduct has been referred to, or warrants referral to, a referral entity.[27] Otherwise, the report may contain as much (or as little) information as the ICAC considers appropriate in relation to the subject matter of the investigation.[28]
• [68] In addition to making reports, the ICAC may make public statements concerning any matter that the ICAC is dealing with or has dealt with.[29] The ICAC may make a public statement for purposes which include "to provide information about action taken or that may be taken by the ICAC in relation to the matter",[30] "to provide information about a referral, including the outcome of a referral",[31] and "to address public misconception about a person or issue of which the ICAC has particular knowledge".[32] The ICAC may make a public statement in the manner determined by the ICAC.[33] A public statement may be made to the public at large, to a section of the public, or to a particular person or body.[34] A public statement may not contain information the subject of privilege under s 82 of the ICAC Act.[35]

• [69] The plaintiff has advanced the following grounds for the orders sought on judicial review.

Ground 1: The defendant had no jurisdiction to make the Adverse Findings against the plaintiff in circumstances where the plaintiff was not informed that he was under investigation at the relevant times.

Ground 2: The defendant failed to afford the plaintiff procedural fairness by not informing the plaintiff that he was under investigation and/or positively assuring him that he was not under investigation until after the proposed findings were made.

Ground 3: The defendant failed to afford the plaintiff procedural fairness by failing to ensure and/or permit re-examination of, or submissions by, the plaintiff prior to the making of the proposed findings.

Ground 4: The defendant failed to afford the plaintiff procedural fairness by failing to put all matters on which the proposed findings and Adverse Findings were allegedly based to the plaintiff in examination.

Grounds 5 and 6: Adverse Findings against the Board

Ground 5: The defendant failed to afford the plaintiff procedural fairness by failing to ensure that he was on notice of a risk of adverse findings to him and/or had an opportunity to respond to any proposed adverse findings in his capacity as a member of the Board on matters the subject of the inquiry.

Ground 6: The defendant had no jurisdiction to make the findings about the Board without ensuring the plaintiff was on notice of a risk of adverse findings to him and/or that he was given an opportunity to respond to any such proposed adverse findings in his capacity as a member of the Board on matters the subject of the inquiry.

Grounds 8 and 9: failure to consider the plaintiff's Response

Ground 8: The defendant failed to afford the plaintiff procedural fairness and/or his reasoning was not objectively reasonable by failing to:

(a) Consider and evaluate rational arguments of the plaintiff in his Response said to displace the basis for adverse findings and failing to provide reasons for their rejection.

(b) Alternatively, failure to give proper, genuine and realistic consideration to the plaintiff's Response. [Grammar and punctuation in the original.]

Ground 9: The defendant erred by failing to take into account a relevant mandatory consideration being the plaintiff's Response.

Grounds 7 and 10: making findings without evidence

Ground 7: The defendant erred by making findings in the Report that had no evidentiary basis or which could not be reasonably made on the evidence or reasonably inferred from facts found.

Ground 10: The defendant erred by making findings (ie the Adverse Findings) that had no evidentiary basis or which could not be reasonably made (sic) on the evidence or reasonably inferred from facts found.

Ground 11: The defendant denied the plaintiff procedural fairness by failing to ensure that any relevant exculpatory material of information was disclosed to the plaintiff.

Ground 12: The defendant published the Report in a manner that was not authorised pursuant to s 50 and/or s 55 of the ICAC Act.

Ground 1: The defendant had no jurisdiction to make the Personal Adverse Findings against the plaintiff in circumstances where the plaintiff was not informed that he was under investigation at the relevant times

• [70] This ground of review contains the phrase "at the relevant times". Which times are said to be relevant have not been specified. From the plaintiff's submissions, it is apparent that the plaintiff contends that the defendant had a duty to inform the plaintiff that he was being investigated at some time before giving him notice under s 50(2) of proposed adverse findings against him and giving him an opportunity to respond. This contention cannot be accepted.
• [71] Section 50(1) of the ICAC Act empowers the ICAC to 'make a report on an investigation (an investigation report) to a responsible authority for a public body or public body whose conduct is the subject of the investigation'.
• [72] Section 50(2) provides that if the ICAC proposes to make an adverse finding about a person in such a report, the ICAC must give the person a reasonable opportunity to respond to the adverse material and include a fair representation of the response in the report.
• [73] The plaintiff contends that the effect of these two statutory provisions combined is that the ICAC may only make adverse findings against a person whose conduct is the subject of an investigation.
• [74] It is uncontentious that the notices requiring the plaintiff to attend for the First Examination and the Second Examination both stated that the plaintiff was not under investigation. Nor is it contentious that he was told orally, at both Examinations, that he was not under investigation.
• [75] The defendant stated in the Report, in reference to matters raised in the Response:[36]

The basis of one complaint is the fact that the two notices pursuant to section 34 of the ICAC Act to attend for examination, specifically said that Mr Moriarty was not under investigation.

In respect of the obligation to notify a person that they are under investigation I refer to paragraphs 10 to 18 of this report.[37]

Because of the ongoing nature of an investigation, and when all of the evidence was collated, it is only then that a person's role in a process can be fully understood. Such was the case of Mr Moriarty's role.

Mr Moriarty was not under investigation when he appeared for examination on two occasions. ...

• [76] The plaintiff says that nowhere in the Report does it state that the plaintiff was under investigation at any stage and contends that, if he was not, then the defendant had no jurisdiction to make the Adverse Findings against him (and no jurisdiction to publish them).
• [77] The plaintiff takes issue with this statement in the Report:[38]

A person who was not under investigation may have attended and given evidence. After completing giving evidence, and taken in conjunction with other evidence, the person may become the subject of further investigation. If that is the case, there is no requirement in the Act to inform the person that they are then under investigation.

• [78] The plaintiff contends that if he was not under investigation at any time, the defendant had no jurisdiction to make the Adverse Findings against him. If he did come under investigation at some time after the First and Second Investigations, the defendant had an obligation under s 34(2) to inform him of that fact and his failure to do so was a failure to comply with a statutory pre-condition for the decision making process so that he exceeded his jurisdiction in making and publishing the Adverse Findings. That contention cannot be accepted.
• [79] The defendant contends that the plaintiff's submissions involve a mistaken factual premise and a mistaken legal premise.
• [80] The mistaken factual premise is to assume that the fact that the plaintiff was not under investigation at the time of the First Examination and the Second Examination means that he was not under investigation at the time the Report was prepared. The defendant says that although the plaintiff was not under investigation at the time of either the First Examination or the Second Examination he later became a person under investigation. The defendant refers to the Report which states that the plaintiff "was not under investigation when he appeared for examination" and says it may be inferred that he was under investigation at a later time. The defendant also refers to the statement in the Report set out at [77] above. In this connection the defendant relies on the remark by Adams J in Kazal v Independent Commissioner Against Corruption[39] that the ICAC's enquiries will "inevitably expand and move into different areas" over time and as new evidence emerges, and to the observation by Bleby J in C v The Independent Commissioner Against Corruption[40] that investigations are, by definition open ended and develop according to the information available from time to time.
• [81] The defendant submits that the mistaken legal premise is that the plaintiff's argument depends on a statutory limitation that does not exist. The defendant contends that there is nothing in the ICAC Act which precludes the ICAC from making an adverse finding about a person unless that person was previously the subject of an investigation.
• [82] The defendant contends that there are only two relevant obligations on the ICAC before making a report. First, where the ICAC gives a person who is under investigation a notice to attend for examination under s 34 of the ICAC Act, the notice must state that the person is under investigation. Second, if the ICAC intends to include an adverse finding about a person in an investigation report, the ICAC is obliged by s 50(2) to give the person a reasonable opportunity to respond to the adverse material.
• [83] The defendant also takes issue with the plaintiff's contention that there is an obligation in the ICAC under s 34(2) of the ICAC Act to inform a person if he or she is under investigation. The procedural obligations on the ICAC are those set out at [82] above and there is no basis to "read in" any additional obligation to inform a person that they are under investigation. There is nothing in the ICAC Act to suggest that the ICAC must inform a person when they initially come under investigation and such an obligation would undermine the ICAC's ability to undertake covert investigations. The only obligation imposed by the legislation is the obligation under s 34(2)(c) to notify a person that they are under investigation if they are required to attend for examination - the purpose of that provision being so that they can avail themselves of legal representation and avail themselves of any rights they may have to refuse to answer questions.
• [84] The defendant's contentions are essentially correct. Section 50 of the ICAC Act provides (in full):

(1) The ICAC may make a report (an investigation report) on an investigation to a responsible authority for a public body or public officer whose conduct is the subject of the investigation.

An investigation report may contain recommendations - see section 56.

(2) If the ICAC proposes to make an adverse finding about a person or body in an investigation report, the ICAC must give the person or body a reasonable opportunity to respond to the adverse material and include a fair representation of the response in the report.

(a) contain as much information as the ICAC considers appropriate in relation to the subject matter of the investigation to which the inquiry relates; and

(b) include a finding as to whether a person has engaged in, is engaging in or is about to engage in, improper conduct; and

(c) include information as to whether an allegation of improper conduct has been referred to, or in the ICAC's opinion warrants referral to, a referral entity.

An investigation report may contain recommendations - see section 56.

(4) However, an investigation report must not include a finding:

(a) as to whether a person has committed, is committing or is about to commit, an offence or a breach of discipline; or

(b) as to the prospects of success of any current or future prosecution or disciplinary action.

(5) For subsection (4), a finding that a person has engaged, is engaging or is about to engage in improper conduct is not a finding that the person is guilty of or has committed, is committing or is about to commit an offence or a breach of discipline.

(6) For an investigation report made to the Speaker or Deputy Speaker, the Speaker or Deputy Speaker must table a copy of the report in the Legislative Assembly on the next sitting day after the Speaker or Deputy Speaker receives the report.

(a) for a public body or public officer other than a minister or an MLA:

(i) an entity having authority to deal with one or more matters relating to improper conduct the subject of the investigation to which the report relates; or

(ii) an entity whose functions include making future decisions in the public interest that may be better informed by receipt of the investigation report; or

(b) for a minister or an MLA other than the Speaker - the Speaker; or

(c) for the Speaker - the Deputy Speaker.

Power to require person to attend for examination

(1) For an investigation, the ICAC may require a person to attend the ICAC for examination.

(a) requiring the person to attend for examination at a specified time and place; and

(b) stating the nature of the matters about which the person is to be questioned, except to the extent the ICAC considers on reasonable grounds doing so would:

(i) be likely to prejudice the conduct of the investigation; or

(ii) be contrary to the public interest; and

(c) if the person is under investigation - stating that fact.

(3) The notice may require the person to bring and produce to the ICAC specified items, or items of a specified kind, in the person's possession or control relevant to the investigation.

(4) The ICAC may require a witness at an examination to do one or more of the following:

(a) take an oath to answer all questions truthfully;

(b) answer a question relevant to the investigation asked by the ICAC or by another person present at the examination;

(c) produce at the examination any items in the possession or control of the witness relevant to the investigation.

• [86] The plaintiff's argument on Ground 1 depends on acceptance of the proposition that the effect of sub-sections 50(1) and 50(2) is that the ICAC may only make adverse findings against a person whose conduct is the subject of an investigation.
• [87] As a matter of logic it must be accepted that an adverse finding against a person could only properly be made by the ICAC if the ICAC had in some way investigated the matters the subject of the adverse findings: it is no part of the function of the ICAC to simply make things up. Having said that, the ICAC Act does not contain a general concept of "a person under investigation" as a special category of persons. The ICAC's powers of investigation are very wide. They are set out in s 31 which provides:

(1) The ICAC may commence an investigation if the ICAC has, or is aware of, information that, if true, would tend to show that improper conduct has occurred, is occurring or is at risk of occurring.

(a) despite a provision of another law of the Territory providing that the subject matter is final or cannot be appealed against, challenged or called into question; and

(b) even if the subject matter is the subject of:

(i) a referral; or

(ii) an investigation under another law of the Territory; or

(iii) legal proceedings.

Whether the subject matter is the subject of another investigation or of legal

proceedings are matters to which the ICAC is to take into account

(3) If the ICAC has, or is aware of, information that, if true, would not itself amount to improper conduct but may be directly or indirectly connected with improper conduct, or be part of a course of activity involving improper conduct, the ICAC may commence an investigation based on the information.

(4) For an investigation, the ICAC may exercise the powers in Part 4 in addition to any powers in this Division or Division 6.

• [88] Section 50(1) provides that the ICAC may make an investigation report on an investigation to a responsible authority for a public body or public officer whose conduct is the subject of the investigation. It should be noted that this does not refer to "a person under investigation": the focus is on the conduct which is the subject of the investigation. Again, as a matter of logic, the statement in para [15] of the Report, quoted at [77] above must be correct. The ICAC may well begin an investigation by enquiring into the conduct of specific people and as information comes to light during the investigation, other conduct and other people may well come to be investigated. There is nothing in the ICAC Act to suggest that this is not permitted.
• [89] The protection for a person (or body) in relation to whom the ICAC proposes making an adverse finding is contained in s 50(2). In such a case, the ICAC must give the person or body a reasonable opportunity to respond to the adverse material and include a fair representation of the response in the report. The purpose of this provision is self-evident: it is to ensure that a person is accorded procedural fairness before an adverse finding is made against him or her.
• [90] The other relevant requirement for procedural fairness for present purposes is contained in s 34(2). If the ICAC requires a person to attend for examination under s 34(1), then the ICAC must give that person a written notice containing the matters prescribed in s 34(2). If the person is under investigation that fact must be disclosed in the notice requiring the person to attend for examination. Again, the purpose of that requirement is self-evident.
• [91] There is nothing in the ICAC Act that compels the ICAC to require a person whose conduct is the subject of an investigation to attend for examination, and, if the person is not required to attend for examination, there is nothing in the ICAC Act apart from s 50(2) which requires the ICAC to tell the person that their conduct is being investigated. In fact under s 147(1) of the ICAC Act, the ICAC is empowered to issue a written notice to a person directing the person not to disclose (inter alia) that an investigation is being conducted. The evident purpose of that is to enable the ICAC to investigate suspected corrupt or improper conduct without warning those suspected of being involved that the ICAC is doing so. It is only at the point when the ICAC is proposing to make an adverse finding about a person in an investigation report that the ICAC is obliged to give the person an opportunity to respond to the adverse material.
• [92] So far as the Personal Adverse Findings are concerned, that procedure was followed in this case. Before finalising the Report, the defendant wrote to the plaintiff advising that he proposed making adverse findings against him; providing him with a copy of the proposed adverse findings; and inviting his response which, in due course, was given.
• [93] Ground 1 is not made out in relation to the Personal Adverse Findings. The plaintiff's claims in respect of the Board Adverse Findings are grounded in a failure to accord procedural fairness and are considered below under Grounds 5 and 6.

• [94] Grounds 2, 3, 4, 5 and 6, 8 and 9, and 11 all contend that the plaintiff was denied procedural fairness in one form or another. These will be considered before the other grounds. The general principles applying to procedural fairness in administrative decision making are non-controversial.

[95] A statute conferring a power to affect an interest of an individual is presumed to confer that power on condition that it is exercised in a manner that affords procedural fairness to that individual, unless that presumption is clearly displaced by the particular statutory scheme: Minister for Immigration and Border Protection v SZSSJ;[41] Obeid v Ipp.[42]

• [96] There is no indication that the ICAC Act intended to displace the obligation to accord procedural fairness.
• [97] The scope and content of the obligation to accord procedural fairness depends upon the nature of the power being exercised and the provisions of the statute which regulate how the decision maker, in this case the defendant, is to go about his task: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs;[43] Obeid.
• [98] To satisfy the condition of procedural fairness, the defendant was obliged to adopt a procedure which complied with the provisions of the ICAC Act and which a reasonable and fair repository of the power to be exercised would adopt in the circumstances: Kioa v Minister for Immigration and Ethnic Affairs;[44] Minister for Immigration and Border Protection v WZARH;[45] Obeid.[46]
• [99] The obligation to accord procedural fairness generally includes the obligation to give an affected person an opportunity to deal with adverse information that is credible, relevant and significant to the potential findings of the decision maker: Kioa;[47] Obeid.[48] This obligation is made explicit in s 50(2) of the ICAC Act.
• [100] The concern of procedural fairness is to avoid practical injustice: there is no denial of procedural fairness where no practical injustice is shown. A failure to accord procedural fairness is material, and will justify the grant of declaratory relief, if it operates to deprive the affected person of the possibility of a more favourable outcome: WZARH;[49] Obeid.[50]

Ground 2: The defendant failed to afford the plaintiff procedural fairness by not informing the plaintiff that he was under investigation and/or positively assuring him that he was not under investigation until after the proposed findings were made.

• [101] Despite the assertion of the defendant to the contrary, the plaintiff submits that he was, in fact, under investigation at the time of the First Examination and the Second Examination (or at least at the time of the Second Examination) but was repeatedly told he was not. The plaintiff submits that this can be inferred from the following matters.

(a) He was questioned extensively at both examinations (2 April and 8 October 2020) about his own conduct.

(b) On 4 September 2020, a s 33 notice was issued to the ANZ Bank to obtain his financial records. Paragraph [9] of the Report states that only one such notice was issued in this investigation.

(c) On 14 September 2020, ICAC interviewed Ms Lorimer and asked her questions about the conduct of the plaintiff. That interview was both covertly recorded and listened to by at least one ICAC employee through a listening device.

(d) The notice to attend the Second Examination advised that the scope of the investigation had now expanded to include the "management and transparency of the tender process in relation to the construction of the Darwin Turf Club multi-purpose grandstand".

(e) On 7 October 2020, a warrant was issued to seize the plaintiff's mobile telephone and on 8 October 2020, his mobile telephone was seized by the defendant.

(f) As soon as the Second Examination commenced on 8 October 2021, the plaintiff was questioned about the Moriarty Statements that are the subject of the Personal Adverse Findings. The plaintiff contends that it therefore cannot be the case that matters unexpectedly arose during the course of the Second Examination or after the Second Examination had concluded that led to the Personal Adverse Findings being made.

• [102] The onus of establishing the factual basis for this ground of review is on the plaintiff. The defendant relies on the following direct evidence that the plaintiff was not under investigation at the time of the First and Second Examinations.

(a) First, the notices requiring the Plaintiff to attend for examination stated "... you ARE NOT under investigation".

(b) Second, at the commencement of each examination, the ICAC personally indicated to the plaintiff that he was not under investigation. Those statements were made in the presence of counsel-assisting, Mr Chad Jacobi, a member of the South Australian Bar who conducted the questioning in the examinations.

(c) Third, the Report confirmed that the plaintiff had not been under investigation at the time of each examination, though the defendant contends that he did come to be under investigation later.

(d) Fourth, the Report stated that "each person who was under investigation when given a notice to attend for examination, was told that they were under investigation".[51]

• [103] The defendant contends that in seeking to discharge the onus of establishing the facts to make out this ground of review, the plaintiff must prove, to the Briginshaw standard, that the defendant falsely issued notices that said the plaintiff was not under investigation when he was; lied to the plaintiff in the presence of counsel assisting when assuring him he was not under investigation; and made a series of false statements in the Report.
• [104] The plaintiff contends that this is not necessary. The content of the Second Examination was an investigation into the propriety of the Moriarty Statements and it is clear that this line of investigation was arrived at and planned in advance: the very first questions asked in the Second Examination concern the propriety of the Moriarty Statements - their truth and their motivation; the questioning was pointed and directed; and it persisted for 15 pages. The plaintiff is not alleging bad faith or malfeasance in public office and does not need to. It is sufficient for the plaintiff to show that the statement in the notice of the Second Examination that the plaintiff was not under investigation and the verbal assurance given to that effect were false by reference to what actually happened, evidenced by the transcript of the Second Examination.
• [105] The defendant contends that for s 34(2) to be workable, the question of whether the notice must inform the recipient that he or she is under investigation must turn on the state of mind of the person issuing the notice, namely the defendant. The question of whether a person is under investigation at a particular time depends on the subjective intention of the ICAC. That is to say that before the ICAC is obliged to inform a person that he or she is under investigation on a notice issued under s 34(2), the ICAC must have formed an actual intention to investigate whether the person in question may be guilty of improper conduct of some kind.
• [106] The plaintiff contends that the question whether a person is under investigation at the time of an examination is an objective one: was an enquiry into whether the person had been guilty of some kind of improper conduct actually taking place? The plaintiff contends further that this can be answered in the present case by reference to the transcript of the Second Examination which contains questions directed to ascertaining whether the plaintiff had made the Moriarty Statements; whether the Moriarty Statements were false; whether the plaintiff knew they were false; and whether the plaintiff's motive (or one of his motives) in making the Moriarty Statements was to assist Mr Dixon. These were the very things that formed the basis of the Personal Adverse Findings. Objectively, the Second Examination was, in part, an investigation into the plaintiff's conduct in making the Moriarty Statements: the questions asked demonstrate an intention on the part of the examiner to ascertain whether the plaintiff had been guilty of misconduct in making those statements in the circumstances.
• [107] The defendant contends that, once the concept of intention is introduced, the test becomes a subjective one and to satisfy it in this case, the plaintiff must prove that the defendant deliberately lied when saying the plaintiff was not under investigation.
• [108] I consider there is some merit in both parties' contentions. I consider that the defendant is correct in saying that in order to be obliged to inform a person on a s 34(2) notice that the person is under investigation, the ICAC must have formed an actual intention to investigate whether the person had been guilty of some form of misconduct. However, I agree that, at least in the present case, that intention can be inferred from the objective evidence of the examination that took place. The transcript shows that from the outset of the Second Examination, the plaintiff was questioned about all of the matters which formed the basis of the Personal Adverse Findings against him in a way that was directed quite explicitly to gathering evidence that he had made the Moriarty Statements, knowing them to be false, with at least one purpose of aiding Mr Dixon. Objectively speaking, during the Second Examination, the plaintiff was under investigation in relation to those matters.
• [109] The plaintiff bears the onus of proving that that was the case when the second s 34(2) notice was issued. However, I do not agree that the plaintiff must prove to the Briginshaw standard that the defendant deliberately lied when he said the plaintiff was not under investigation. The s 34(2) notice was given shortly before the Second Examination took place and it may be inferred from the timing and expressed purpose on the notice that it was issued for the purpose of having the plaintiff attend for an examination of the kind that took place. That, it seems to me, is sufficient. It has not been suggested that the purpose of the Second Examination changed after the s 34(2) notice was issued: the defendant assured the plaintiff at the Second Examination that he was not under investigation. There may be a number of reasons why the defendant said that the plaintiff was not under investigation when, objectively, the Second Examination amounted to such an investigation, including a failure to understand what is meant by "under investigation". It should not be assumed that it must have been the result of a deliberate falsehood. Perhaps all that was intended by the reassurance was that the plaintiff was not the primary target of the investigation. The plaintiff bears the onus of showing that the assurance that he was not under investigation was false; he is under no obligation to say why it was false.
• [110] In my view, the plaintiff has satisfied the onus of proving that, at the time the second s 34 notice for the Second Examination was issued, the plaintiff was under investigation in relation to his conduct in issuing the Moriarty Statements and the s 34(2) notice that was given to him in relation to the Second Examination should have informed him of that. The best evidence of the defendant's intention in conducting the Second Examination is what actually occurred at the Second Examination.
• [111] The plaintiff has not satisfied that onus in relation to the First Examination. (In fact the plaintiff did not make submissions to that effect.)
• [112] If I am wrong in relation to that, it seems to me that the fact that the plaintiff was advised on the s 34(2) notice and orally at the Second Examination that he was not under investigation and then was subject to such an investigation during the Second Examination - almost from its inception - had the potential to constitute a denial of procedural fairness.
• [113] However, although the plaintiff no doubt feels aggrieved that he was misled in this way, and is no doubt entitled to feel so, I do not think that this procedural irregularity resulted in a practical injustice which would warrant the Court making the declaration sought in relation to the Personal Adverse Findings for a number of reasons.
• [114] First, I am not convinced that the plaintiff would, or could, have done anything different at the Second Examination if the notice to attend had contained the required warning. The plaintiff was legally represented at the Second Examination. He was obliged to answer the questions put to him and to answer them honestly. The only thing the plaintiff can say might have been done differently is that he might have been more circumspect, and taken stronger steps to protect his interests, including taking further steps to ensure he was given an opportunity for re-examination and submissions before the preparation of the Personal Natural Justice Extract. He might also have sought leave to participate in or test the evidence given at other examinations or hearings. The plaintiff did not give evidence that he would have taken any of these steps if given the requisite notice.
• [115] In WZARH at [59] to [60], Gageler and Gordon JJ said:

[59] There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.

[60] Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.

• [116] This, it seems to me is a case akin to the first kind described. The defendant misled the plaintiff into believing that he was not under investigation at the time of the Second Examination. That may have led the plaintiff to refrain from taking the steps referred to in [114] above. However, the plaintiff did not give evidence that he would have done so, and has therefore not satisfied the onus of establishing that he has suffered a practical injustice as a result of the defendant's failure.
• [117] Second, it is difficult to see how the plaintiff could have done anything other than what he did to counter the prospect of the Personal Adverse Findings being made - that is to provide the defendant with the Response. The plaintiff submitted that the matters in the Response may have caused the defendant not to have made the Personal Adverse Findings against the plaintiff if the opportunity had been given before the proposed findings had been formulated. I do not see why that would have been so.
• [118] Given the nature of the questioning at the Second Examination in relation to the Moriarty Statements, and the nature of the Personal Adverse Findings, it is not clear how any such hypothetical actions might have led to a different result, at least in relation to the Personal Adverse Findings. This ground of review has not been made out.

Grounds 5 and 6: Adverse Findings against the Board

Ground 5: The defendant failed to afford the plaintiff procedural fairness by failing to ensure that he was on notice of a risk of adverse findings to him and/or had an opportunity to respond to any adverse findings in his capacity as a member of the Board on matters the subject of the inquiry

Ground 6: The defendant had no jurisdiction to make the findings about the Board without ensuring the plaintiff was on notice of a risk of adverse findings to him and/or that he was given an opportunity to respond to any such proposed adverse findings in his capacity as a member of the Board on matters the subject of the inquiry

• [119] The defendant also made adverse findings against DTCI and the DTCI Board. In substance the Board Adverse Findings are as follows.

(a) The DTCI Board failed to exclude Mr Dixon from deliberations about the grandstand project and permitted his direct involvement in decision making on that topic, knowing his potential to bid for the project.[52] This was found to amount to unsatisfactory conduct because it involved negligence or incompetence in connection with public affairs resulting in a substantial detriment to the public interest. It was also found to be a breach of public trust.

(b) The DTCI Board breached its obligations under the Grant Agreement by not disclosing Mr Dixon's conflict of interest.[53] This was found to amount to unsatisfactory conduct because it involved negligence or incompetence in connection with public affairs resulting in a substantial detriment to the public interest.

(c) The DTCI Board did not have in place a process for managing probity over its decision making processes.[54] The Report found this to be unsatisfactory conduct on the same basis.

(d) DTCI was incompetent in its assessment of the merit of tenders in that it failed to identify the existence of variations and so treated them as innovative in favour of Jaytex. This was found to be unsatisfactory conduct because it involved negligence or incompetence connected with public affairs leading to a substantial mismanagement of public resources.[55]

• [120] The finding of unsatisfactory conduct in the management of the tender process is expressed in the Report as a finding against DTCI. The other three findings of unsatisfactory conduct are expressed to be findings against the DTCI Board, but there does not seem to be any rational basis for this distinction. For example, the findings against the DTCI Board are justified in the Report in part by reference to what might be expected of "a reasonable public body in the position of DTCI", and the finding against DTCI arises out of findings of fact about the conduct of the DTCI Board members including the plaintiff.
• [121] The findings of unsatisfactory conduct by the Board of DTCI (and by DTCI) arise out of primary findings of fact earlier in the Report some of which specifically reference the plaintiff. The finding in the Report of unsatisfactory conduct as a result of the failure to exclude Mr Dixon from Board meetings connected with the grandstand project refers back to primary findings including the following:[56]

The next board meeting on 30 July 2019 was also attended by Mr Dixon. Mr Dixon chaired the meeting. That is contrary to false statements made later that he excluded himself from meetings. The official minutes are not an accurate representation of the meeting. The meeting in fact occurred in the reverse order to which the minutes are structured.[57] There was no conflict of interest declaration process at the meeting and Mr Dixon made no declaration of a conflict at that meeting. The conflict statement in the minutes was, once again, a cut and paste from the earlier minutes and does not refer to the Jaytex bid. Remarkably, both Mr Stacy and Mr Moriarty, given what they knew positively about Jaytex's intention to bid, did not seek to exclude Mr Dixon from being involved. Nor did the other board members raise an issue in light of what they had been told. [emphasis added]

• [122] The finding of unsatisfactory conduct by DTCI as a result of incompetence in the assessment of the merit of tenders arises (in part) from the following primary finding:[58]

The first meeting was a shortlisting occasion and assumes much less importance because the tenders had not yet been provided to the panel members. It can be put to one side save for one matter. The panel were advised by Mr Moriarty that the bids were "compliant" with the tender requirements. No-one else was in a position to say that because they had not been read or even provided to them. That information was wrong. The bids were not compliant - and in particular Jaytex's bid was not compliant with the tender because, contrary to the tender, the bid modified the design elements within the 30% of the fixed design elements "without approval". There was no written approval. The effect was that like was no longer treated as like. As will appear, divergences from the mandatory requirements were not only not penalised, but treated as innovation and "rewarded" with additional points in the scoring. In the case of the non-DTCI members of the panel, that is easily understandable as a matter of ignorance. But it is inexplicable in the case of Mr Moriarty, and Mr Herraman.

• [123] The defendant was obliged by s 50(2) of the ICAC Act to give the plaintiff a reasonable opportunity to respond to the adverse material against him before making any adverse findings about him in an investigation report. There is no definition of "adverse findings" in the Act. The term has its ordinary English meaning. There can be no doubt that the findings summarised above in relation to DTCI and the DTCI Board amount to adverse findings against the plaintiff in his capacity as a member of the DTCI Board of directors, some of which are based on adverse findings against the plaintiff personally. The question is whether the defendant did give the plaintiff a reasonable opportunity to respond to the adverse material against him before finalising the Report. In my view, he did not.
• [124] In ordinary circumstances a notice to the Board sent to the public officer may suffice as notice to all of the Board members, but in this case it could not.
• [125] On 7 May 2021, the defendant wrote to the public officer of DTCI advising (inter alia):

Subject to the matters I raise in this letter, it is my intention to prepare a Report pursuant to section 50 of the Independent Commission Against Corruption Act 2017 in respect of alleged improper conduct by the DTCI. As an incorporated body may act only through agents, in DTCI's case, the Board and authorised officers and employees, I accept that this material can be shown to the Board for its consideration. Any section 147 directions in existence are modified to allow discussion to take place amongst the Board members and yourself.

Before I finalise an Investigation Report, by section 50(2) I have an obligation to give DTCI including the Board, a reasonable opportunity to respond to any adverse material in such a report.

Please find attached relevant extracts* from the draft report I have prepared in respect of the matter I have been investigating.

The statements in the draft report are tentative findings only on my part.

I will not make concluded findings in respect of DTCI's or the Board's conduct until DTCI and the Board have been given a reasonable opportunity to respond to the adverse material set out in the attachments, and I have considered DTCI's and the Board's responses.

I should also make you aware that Mr Brett Dixon, Mr Damien Moriarty and Mr James Herraman have each been served with material relating to natural justice. The modification of any section 147 direction does not apply to those three individuals or their legal representatives.

• [126] The letter enclosed the Board Natural Justice Extract. The Board Natural Justice Extract included those paragraphs in which findings of unsatisfactory conduct and breach of public trust were proposed to be made against DTCI and the DTCI Board and the primary findings on which those findings were based.
• [127] By email on 11 May 2021 from Mr Sean Goff, "a Senior Investigator and Authorised Officer" with the ICAC, each of the Board members except Mr Dixon, Mr Moriarty and Mr Herraman was served with a further notice pursuant to s 147 of the ICAC Act, signed by the defendant, directing each of them (inter alia) not to disclose any information provided to them by the ICAC, the fact that the investigation in question was taking place or that they had been required to give information to the ICAC. Each notice contained a paragraph in the following terms.

This Direction does not apply for the purpose of limited disclosure to members of the Darwin Turf Club Board of Directors with the exception of Mr Brett DIXON and Mr Damien MORIARTY, as necessary to discuss the Independent Commissioner Against Corruption's Investigation Report - Morgan Natural Justice Extract dated May 2021.

• [128] The covering email from Mr Goff stated, relevantly:

The purpose of the attached s 147 Direction is to allow discussions with DTC board members with the exception of Damien Moriarty and Brett Dixon, to discuss a report forwarded to Mr Morgan by the Independent Commissioner Against Corruption.[59]

There follows a summary of the things prohibited by the Notice.

This Direction does not apply for the purpose of limited disclosure to members of the Darwin Turf Club Board of Directors with the exception of Mr Brett DIXON and Mr Damien MORIARTY, as necessary to discuss the Independent Commissioner Against Corruption's Investigation Report - Morgan Natural Justice Extract dated May 2021.

• [129] By email dated 20 May 2021 the solicitor for the Darwin Turf Club wrote to Sean Goff at the ICAC, inter alia, in the following terms:

6. In order to have a comprehensive discussion among the whole of the Board, a variation to the s 147 direction is sought to allow the board discuss (sic) sections of the Report with Mr Moriarty and Mr Dixon. It is impossible for the Board to provide a comprehensive reply to all parts of the Report without these discussions. Given the investigation appears to be at a final stage in the form (as it is at report stage) there ought to be no prejudice to the investigation by allowing the requested variation to occur.

• [130] This would appear to be a reasonable request, especially since the actions (and/or alleged actions) of Mr Dixon were central to most of the matters in the Board Natural Justice Extract, and among the proposed adverse findings the Board was invited to respond to were the adverse findings about Mr Moriarty (and another Board member) set out at [121] and [122] above.[60] Yet, extraordinarily,[61] Mr Goff responded on behalf of the defendant in an email dated 21 May 2021:

I have discussed your requests below with the Commissioner, and he will reply in due course.

In regards to request number 6 (Request for variation of the s 147 Directions). (sic) The Commissioner has asked me to inform you this request is unable to be approved.

• [131] The defendant contended that the plaintiff was given notice in the Personal Natural Justice Extract of all of the proposed primary findings which formed the basis of the findings of unsatisfactory conduct and breach of public duty by the Board and submitted that that was sufficient. I reject that submission.
• [132] The plaintiff was not given a copy of the Board Natural Justice Extract. The Personal Natural Justice Extract which the plaintiff did receive, contained the primary findings on the basis of which the defendant made the Board Adverse Findings of unsatisfactory conduct and breach of public trust. It did not set out the proposed Board Adverse Findings themselves or link the proposed Board Adverse Findings to the primary findings of fact or explain the rationale for the Board Adverse Findings set out in the Report.
• [133] That meant that although the plaintiff was given an opportunity to respond to the proposed primary findings set out at [121] and [122] above, and the other primary findings that led to the Board Adverse Findings, he was not given any notice that those primary findings would be used in the way they were used in the Report, to make findings of unsatisfactory conduct and breach of public duty against the DTCI Board - that is to say against the plaintiff and the other Board members. That deprived the plaintiff of the opportunity to argue that even if the primary facts were as found, they did not warrant a finding of unsatisfactory conduct against himself as a Board member.
• [134] In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs,[62] the High Court approved the following statement of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd:[63]

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. (emphasis added)

• [135] In failing to give the plaintiff notice of the proposed findings of unsatisfactory conduct and breach of public trust against the Board of which he was a member, and by taking the quite extraordinary step of directing the other Board members not to disclose that information to the plaintiff on pain of criminal sanction, the defendant deprived the plaintiff of knowledge of the issues - namely the issue of whether the primary factual findings warranted findings of unsatisfactory conduct and breach of public duty on the part of the Board members, and the opportunity to be heard in relation to those issues.
• [136] The defendant pointed out that in his Response, the plaintiff did provide a response to some of the proposed primary findings but did not respond to others. That is understandable given that the Personal Natural Justice Extract did not give notice that those primary findings were to be used to make findings of unsatisfactory conduct and breach of public trust against the plaintiff and other Board members. If the plaintiff had been given the appropriate notice of those proposed findings, his approach may well have been different. He was not given that opportunity.
• [137] This, it seems to me, is a failing by the defendant akin to the second category referred to by Gageler and Gordon JJ in WZARH referred to at [115] above. The procedure adopted by the defendant in itself failed to afford a fair opportunity to the plaintiff to be heard on the issue of whether the primary findings of which the plaintiff was made aware, justified the findings of unsatisfactory conduct and breach of public trust by the plaintiff and other Board members. In such a case, the practical injustice lies in the denial of an opportunity which in fairness ought to have been given, and this justifies the making of a declaration unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome.[64]
• [138] In this case it has not been shown that the failure to accord procedural fairness in this respect did not deprive the plaintiff of the possibility of a successful outcome. It is not the case that if the primary findings are accepted, they lead inevitably to the conclusions set out in the Board Adverse Findings. I have found against the plaintiff on the ground of review which alleges that there was no evidence on which the Adverse Findings (including the Board Adverse Findings) could have been made. That is not the same as saying that such findings flow inevitably from the primary findings. It is arguable that some or all of them do not. The plaintiff was denied the opportunity to be heard on that issue, which was a live issue.
• [139] The other Board members were unable to discuss the proposed adverse findings against them with either Mr Dixon or the plaintiff. Quite apart from handicapping the other Board members' ability to respond to the proposed adverse findings against them (a matter that has no relevance to the present proceeding) this meant that the plaintiff was not given notice of the defendant's proposal to make adverse findings against him in his capacity as a member of the Board as required by s 50(2) of the ICAC Act. An essential pre-condition to the making of valid findings adverse to the plaintiff in his capacity as a director of DTCI was not complied with. Further, as explained above this amounted to a denial of procedural fairness.
• [140] There will be declarations to the effect of those sought under Grounds 5 and 6.

Ground 3: The defendant failed to afford the plaintiff procedural fairness by failing to ensure and/or permit re-examination of, or submissions by the plaintiff prior to the making of the Proposed Findings

• [141] Grounds 3, 4 and 11 all complain that, as a matter of procedural fairness, certain things should have been done by the defendant, or certain opportunities offered to the plaintiff before the defendant formulated the proposed findings and served the Personal Natural Justice Extract on the plaintiff. None of these grounds can be made out.
• [142] At the Second Examination, the plaintiff was told that he would be given an opportunity for re-examination and to make submissions at a future time.
• [143] This opportunity was not offered to the plaintiff until after he had received the Personal Natural Justice Extract and the plaintiff submits that this was a breach of the requirement to give the plaintiff a fair hearing. I reject that submission.
• [144] The plaintiff was in fact offered the opportunity for re-examination and to make submissions after he was served with the Personal Natural Justice Extract and he rejected the offer saying that, on reviewing the material, it could adequately be dealt with by way of submission. Following that, the plaintiff, through his solicitors, submitted the Response.
• [145] The requirement to afford the plaintiff procedural fairness did not require that the plaintiff be examined at all, let alone re-examined, and the plaintiff was at liberty to make submissions to the ICAC at any time. The fact that he felt no need to do so until served with the notice under s 50(2) that the ICAC was considering making adverse findings against him is neither here nor there. That is the purpose of s 50(2). The scheme of the legislation provides for the ICAC to investigate matters - in secret if appropriate - and then, if the ICAC proposes making adverse findings against a person, to give that person a reasonable opportunity to respond to the adverse material. In Obeid, Hammerschlag J said in relation to the New South Wales ICAC:[65]

The obligation [to accord procedural fairness] does not extend to giving all of the procedural and evidentiary protections of adversarial proceedings. There is no right for affected persons to call further evidence and there is no obligation on the Commission, akin to the prosecutorial duty, to call all material witnesses.

• [146] There is nothing in the ICAC Act to warrant a different approach in this jurisdiction.

Ground 4: The defendant failed to afford the plaintiff procedural fairness by failing to put all matters on which the proposed findings and Adverse Findings were allegedly based to the plaintiff in examination

• [147] The plaintiff contends that the following matters were identified in the Report as material on which the Adverse Findings were based:

(a) all of the alleged failures of the DTCI Board;

(b) the allegation that the plaintiff advised the assessment panel that the bids were compliant when they were not; and

(c) the allegation that the Jaytex bid was not compliant with the tender because the bid "modified the design elements within the 30% without approval".

• [148] The plaintiff contends that these matters were not put to him during the First and Second Examinations and that this failure amounted to a failure to accord the plaintiff procedural fairness. This contention cannot be accepted. There is no obligation under the ICAC Act for the defendant to require a person against whom the ICAC is contemplating making adverse findings to attend for examination at all, let alone an obligation to put to the person during such an examination all matters that might later be the subject of adverse findings against the person. The only obligation of that kind, if the ICAC proposes to make an adverse finding about a person, is the obligation in s 50(2) to give the person a reasonable opportunity to respond to adverse material and to include a fair representation of the response in the report.
• [149] There is nothing in the ICAC Act to suggest that the ICAC is obliged to hold an oral hearing and there is no general principle of administrative law that an oral hearing is a necessary aspect of the requirement to accord procedural fairness.

Ground 11: The defendant denied the plaintiff procedural fairness by failing to ensure that any relevant exculpatory material of information was disclosed to the plaintiff

• [150] The plaintiff complains that the defendant failed to inform the plaintiff of two relevant exculpatory matters:

(a) that the defendant proposed making a finding that Mr Drabsch was intimately involved in the award of the grant to DTCI and had engaged in a deceptive process hiding the true fact that that process was going to lead to a grant ("the Drabsch material"); and

(b) that in the clandestine recording of a conversation between Mr Goff of the ICAC and another DTCI Board member, the Board member had expressed favourable views about the plaintiff, the work he had done for DTCI, and the reasonableness of the remuneration he had received.

• [151] The plaintiff contended that the Drabsch material was relevant because Mr Drabsch was later given the task of investigating the award of the tender. That contention cannot be accepted. The Adverse Findings against the plaintiff have nothing whatsoever to do with Mr Drabsch or the findings against Mr Drabsch in the Report.
• [152] The plaintiff contended that the clandestine recording contained the views of a fellow DTCI Board member as to the propriety and appropriateness of the remuneration paid to the plaintiff which appears to have been ignored by the defendant and submitted that, if he had known about it, the plaintiff could have referred to that in the Response and that might have altered the Adverse Findings. That contention too, is unsustainable. There is nothing in the Adverse Findings in any way critical of the remuneration paid to the plaintiff. The only reference to that remuneration in the Report is in the context of findings that Mr Dixon had been involved in Board meetings at which the project was discussed including moving a motion that the plaintiff be remunerated for his work on the project.
• [153] In any case, there is authority (albeit from a jurisdiction in which the legislation is not identical to the NT Act) that an ICAC's obligation to accord procedural fairness does not extend to disclosing exculpatory material. In Obeid, Hammerschlag J said this about a submission that the New South Wales ICAC should have disclosed exculpatory material to the plaintiffs who were under investigation:[66]

[170] As support for the existence of an obligation to disclose exculpatory material, the plaintiffs cited Shields v Overland (2009) 26 VR 303; [2009] VSC 550. The case involved an application to the Court for review of a decision of the Police Appeals Board, confirming an order of the former Commissioner of Police to dismiss the plaintiff from the police force under a provision of the Victorian Police Regulation Act 1958 (Vic). The ultimate decision that the Board was required to make was whether the applicant, Shields, had satisfied it that the dismissal order was not "sound, defensible or well-founded". One of the applicant's grounds for review was that the Board made either a jurisdictional error or an error of law on the face of the record in refusing to grant him leave to rely on additional evidence, including a report of an inspector McCole, which had arrived at a different conclusion to a report which the Chief Commissioner had relied upon.

[171] Kyrou J found that the Board made an error of law on the face of the record in refusing to grant leave to rely on the McCole report because it misunderstood its statutory powers and the criteria upon which the admission of such material was to be based.

[172] At [109], his Honour made the following observation:

[109] I should also note that I do not agree with a statement in the Board's Decision that seems to suggest that the hearing rule of natural justice obliged the Chief Commissioner to provide to Mr Shields only material which was adverse to him and on which the Chief Commissioner proposed to rely in deciding whether to dismiss him. In appropriate cases, and especially where the decision-maker has exclusive knowledge of specific information, the hearing rule requires the decision-maker to provide to a person affected not only material that is adverse to that person, but all material that has substantive relevance to the matter in issue - including, in particular, any exculpatory material - whether or not the decision-maker proposes to rely upon it.

[173] It is upon this that the plaintiffs rely. I reject the submission.

[174] The observation was strictly obiter, and was made by his Honour apropos a specific and different statute to the one under consideration here.

[175] In Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2014) 220 FCR 202; 141 ALD 106; [2014] FCA 25 at [149], Kenny J made the following observation, with which I respectfully agree:

[149] Shields v Overland provides an insufficient justification to depart from the generally accepted principle that requires that, where there is a duty to afford procedural fairness, this duty requires an administrative decision-maker to provide a person affected with the material adverse to that person: see, for instance, Alphaone at FCR 590- 1; ALR 714; ALD 330; SZBEL at [32]; Kioa at CLR 629; ALR 380.

[176] Such an obligation cannot be implied in relation to an ICAC investigation. It would be impractical and unworkable. It would place on ICAC an intolerable burden, requiring it to assess and make available material on an ongoing basis on the footing of uncertain criteria. It would almost inevitably require ICAC to disclose confidential investigatory material.

Grounds 8 and 9: failure to consider the plaintiff's Response

Ground 8: The defendant failed to afford the plaintiff procedural fairness and/or his reasoning was not objectively reasonable by failing to:

(a) Consider and evaluate rational arguments of the plaintiff in his Response said to displace the basis for adverse findings and failing to provide reasons for their rejection.

(b) Alternatively, failure to give proper, genuine and realistic consideration to the plaintiff's Response. [grammar and punctuation in the original]

Ground 9: The defendant erred by failing to take into account a relevant mandatory consideration being the plaintiff's Response.

• [155] Section 50(2) provides that if the ICAC proposes to make an adverse finding about a person in an investigation report, the ICAC must give the person a reasonable opportunity to respond to the adverse material and include a fair representation of the response in the report.
• [156] After being served with the Personal Natural Justice Extract, and being given access to additional material requested by the plaintiff's solicitors, the plaintiff, through his solicitors, submitted a detailed Response. The defendant was obliged to consider the Response, and to include a fair summary of it in the Report. The plaintiff contends that the defendant failed to properly consider the Response or to take it into account beyond "mere advertence".
• [157] A failure to take into account a mandatory consideration is a jurisdictional error.[67] What is required is that the decision maker give proper, genuine and realistic consideration to the mandatory consideration.[68] "Mere advertence" is insufficient.[69] The ICAC was obliged to engage in an "active intellectual process" in assessing the Response.[70]
• [158] The plaintiff contended that the following matters, raised in the Response, were not considered at all by the defendant:

(a) the disadvantage caused by tentative findings having already been made at the point where a response was sought from the plaintiff;[71]

(b) the apparent acknowledgment in the letter to the plaintiff enclosing the Personal Natural Justice Extract that not all matters had been put to him in examination;[72]

(c) the plaintiff's submissions regarding the availability of/basis for any disciplinary action;[73]

(d) the concern expressed as to the reliability of the reporting of the Moriarty Statements;[74]

(e) the plaintiff's submissions on the distinction between falsity and dishonesty;[75]

(f) the plaintiff's submissions in relation to the context in which the Moriarty Statements were made and what was meant by the term "process";[76]

(g) the plaintiff's claim that the DTCI Board and the plaintiff had been deceived by Mr Dixon;[77]

(h) the plaintiff's submissions about the assurances that had been given to him and the way the DTCI Board operated;[78] and

(i) the plaintiff's statements about his purpose and intention, including his relationship with Mr Dixon.[79]

• [159] The submission that the above matters were not considered at all is presumably based on there being no reference to them in the Report. The defendant was not obliged to deal in detail in the Report with every single matter in the Response. So far as inclusion in the Report is concerned, the obligation of the defendant under s 50(2) was to include a fair representation of the Response in the Report. In addition, the matters referred to in (a) and (b) above are procedural issues which one would not expect to be dealt with in the Report; they do not provide a reason for the defendant not to make the Adverse Findings. At most, the expected reaction to those issues would have been to offer a further chance to be heard. (That was done by the defendant in relation to the complaint that the plaintiff was not offered an opportunity for re-examination and submissions.) I have, in any case, found that the complaints in (a) and (b) were not warranted.
• [160] The defendant contended, and the plaintiff accepted, that the Report must be read fairly, as a whole, and the defendant submitted that a fair reading of the Report as a whole discloses that the Response was considered. The Report states that the defendant carefully considered the responses of each person issued with a natural justice extract.[80] The Report refers specifically to the plaintiff's Response. The Response is listed in para [23]; a summary of the Response taken directly from the Response appears at para [600]; and issues raised in the Response are discussed and dealt with in paras [601] to [646]. It cannot be said that the defendant failed to consider the Response at all.
• [161] The plaintiff complains that certain of these issues were dealt with in such a perfunctory fashion as to amount to "mere advertence" without active intellectual engagement with the issues raised. These include:

(a) the treatment in the Report[81] of the plaintiff's analysis of the Moriarty Statements[82] "which was just a summary of the 'alleged statements' and allegations of the defendant and contained no substantive submissions";

(b) the reference in the Report[83] to the many transcript references in the Response;

(c) the treatment in the Report[84] of the submissions in the Response relating to conflicts of interest;[85] and

(d) the treatment in the Report[86] of the submissions in the Response relating to unsatisfactory conduct.[87]

• [162] To use the issue of the treatment of the plaintiff's submissions on the Moriarty Statements as an example, the plaintiff's submissions on this issue, taken from the summary in the Response, are summarised in para [600] of the Report as follows:

The evidence relied upon by ICAC is insufficient to establish the serious allegations made against Mr Moriarty. The proposed findings are limited to reporting of statements he is said to have made publicly and alleged to have been false in circumstances where:

(i) on the material disclosed by the Report Extract, ICAC has taken no steps to verify the precise content of those statements where such steps were available;

(ii) Mr Moriarty has explained what he intended to convey in making any public statements;

(iii) Mr Moriarty gave clear and consistent evidence that he had no intention to make inaccurate or misleading statements;

(iv) Mr Moriarty gave clear and consistent evidence that he had no ulterior purpose in making the statements alleged.

• [163] The submissions in paras 3.9 to 3.13 of the Response are dealt with in the Report at paras [623] to [626] (and not just at para [623] as asserted by the plaintiff) as follows:

623. Paragraphs 3.9 to 3.13 [of the Response] set out an analysis of two statements made by Mr Moriarty, and then the context in which those statements are made. There is then a defence as to the truth of those statements.

624. The statements are those of 4 and 6 September 2019.

625. I have taken into account the many references to the transcript of evidence provided in the response. I have also taken into account the propositions stated in the response.

626. For the reasons given in the report I adhere to my determination in respect of those statements. [emphasis added]

It is clear from the context, that the reference in para [625] to transcript references and propositions are references to the plaintiff's contentions in paras 3.9 to 3.13 of the Response.

• [164] The complaint that the Report merely adverts to the plaintiff's submissions ignores the reference back to the reasons in the body of the Report for the defendant adhering to the tentative conclusions in relation to the Moriarty Statements set out in the Personal Natural Justice Extract. The body of the Report contains the following direct and indirect references to the Moriarty Statements:
  • The Report refers[88] to the Board meeting on 30 July 2019 at which Mr Dixon was present and in the chair and continues:

Mr Dixon later moved a motion for Mr Moriarty to be paid for the voluntary services he had provided for the project, including being involved in discussion on the issue. ... That participation is contrary to false statements that Mr Dixon later made that he was not involved in the process, and false statements made by Mr Moriarty to the public that Mr Dixon had not been involved.[89]

• The Report refers[90] to two unsolicited emails from Mr Dixon to the then Chief Minister, the first of which falsely claimed that he had personally removed himself "from all DTCI meetings that had anything to do with project" and the second of which said "June 20th ... Brett Dixon Chair of Darwin Turf Club removes himself from all meetings with any regard to the tender process". The Report continues:

Mr Moriarty and Mr Stacy were sent a draft of the second email before it was sent to the Chief Minister. The line with respect to 'June 20' was at that time:

June?? ..... Brett Dixon Chair of Darwin Turf Club removes himself from all meetings with any regard to the Grandstand.

All knew the reference to June was false and that Mr Dixon had not removed himself even in July.[91]

• Later, after referring to press statements by Mr Dixon,[92] the Report states:[93]

Mr Moriarty made public statements at about the same time as Mr Dixon made his statements. He falsely said on 4 September 2019 that: (sic)

Mr Dixon was at arm's length from this process at all times. Once the announcement was made about the project, he was no longer involved in any of the processes, including Jaytex's submission.

The message was that this was undertaken by Mr Moss.

From the outset [Mr Dixon] had stepped away from the process identifying his own potential conflict.

We went through a very diligent process. We had a probity adviser who was with us every step of the way.

Those false statements were made with at least one purpose being the protection of Mr Dixon's interests. That conclusion is reinforced by the fact that he saw in advance certain of the private statements being made by Mr Dixon which were sent to the Chief Minister, and had said they were correct.

• The Report next addresses what flowed from the statements by Mr Dixon and the Moriarty Statements:[94]

The government's investigation was in no way able to address those matters from what it knew by its representation on the assessment panel. That did not provide it with any information about Mr Dixon's involvement on the Board or with Jaytex's bid.

The end result was that the investigation undertaken by NTG was frustrated. The actual conflict was not discovered. The conclusion reached in the investigation report did not reflect the true position. That was despite the correct issues having been raised. The result was that the NTG determined that it was not able to exercise its power under the Grant Agreement.

The result was that Jaytex was able to enter into a contract on the basis of its successful tender. Under that tender it set out to make a profit on the construction of the grandstand.

• Finally the Report refers back to these findings[95] and goes on to record consequential findings of misconduct and unsatisfactory conduct on the part of the plaintiff.

• [165] Given this structure in the Report, I reject the submission by the plaintiff that the defendant did not consider the submissions in the Response relating to the Moriarty Statements beyond "mere advertence". The fact that the defendant did not accept the plaintiff's explanations in the Response does not mean he did not consider them.
• [166] The Report deals with the other matters complained of in a similar fashion. In addition, the defendant modified the Report in one respect after considering the Response. Paragraphs [629] to [631] of the Report note that para [458] of the Report as formulated in the proposed findings at para [55] of the Personal Natural Justice Extract had not been intended to imply that the plaintiff had already been sanctioned, and state that the proposed finding in para [458] was amended accordingly.
• [167] Grounds 8 and 9 are not made out.

Ground 7: The defendant erred by making findings in the Report that had no evidentiary basis or which could not be reasonably made on the evidence or reasonably inferred from facts found.

Ground 10: The defendant erred by making findings (ie the Adverse Findings) that had no evidentiary basis or which could not reasonably be made on the evidence or reasonably inferred from facts found.

• [168] The plaintiff contends that the defendant erred by making findings that had no evidentiary basis or which could not reasonably be made on the evidence or reasonably inferred from facts found (ie the Adverse Findings).
• [169] There is no dispute about the applicable legal principles. Findings of fact are for the decision maker. Factual error will not ground judicial review unless it relates to a jurisdictional fact (which is not alleged here) or is otherwise a manifestation of some error of law which amounts to jurisdictional error.[96]

Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.[97]

• [170] However, a finding of fact where there is no evidence whatsoever to rationally support it, will amount to jurisdictional error.[98] This is what is alleged by the plaintiff. The plaintiff contends that there is no evidentiary basis for any of the following findings of fact in the Report, or that the evidence was such that no reasonable decision maker could have made findings of that nature on the basis of that evidence:
  1. that the reported public statements the subject of the Adverse Findings (ie the Moriarty Statements) were made by the plaintiff in the terms reported at paras [409] and [410] of the Report;
  2. that the Moriarty Statements were false;
  3. further or alternatively to (b), to the extent the Moriarty Statements contained any false or misleading matter, that the plaintiff had the requisite intention or purpose to give rise to the Adverse Findings;
  4. that the plaintiff's conduct in making the Moriarty Statements could constitute 'misconduct' pursuant to s 11(2) of the ICAC Act as it constituted reasonable grounds for taking disciplinary action against the plaintiff by the Darwin Turf Club;
  5. that the plaintiff's conduct could constitute 'misconduct' pursuant to s 11(2) of the ICAC Act as it involved dishonesty;
  6. that the plaintiff's conduct was unsatisfactory conduct;
  7. that the plaintiff's conduct was a breach of public trust.
• [171] This contention cannot be accepted. There was evidence before the defendant which was capable of forming a rational basis for each of the findings of fact complained of. The plaintiff complains that the Report takes a small number of factual findings about the Moriarty Statements and "shoe horns" them into each of the definitions in the ICAC Act of misconduct, unsatisfactory conduct and the like in a formulaic fashion. That may be the case, and may even constitute a legitimate criticism of the Report, but it does not amount to, or justify, a conclusion that there was no evidence to support the findings of misconduct, unsatisfactory conduct and breach of public trust, or that there was no rational basis for such conclusions.

The finding that the plaintiff made the Moriarty Statements

• [172] The Moriarty Statements consist of a statement said to have been made to the NT News on 4 September 2019: "Mr Dixon was at arm's length from this process at all times. Once the announcement was made about the project, he was no longer involved in any of the processes, including Jaytex's submission," and a statement to the ABC on 6 September 2019: "From the outset [Mr Dixon] had stepped away from the process identifying his own potential conflict. We went through a very diligent process. We had a probity adviser who was with us every step of the way."
• [173] The plaintiff contends that:

(a) the defendant did not check with the reporters (who would have recorded the statements) that the Moriarty Statements were made in the terms reported;

(b) the defendant did not quote the full statements made by the plaintiff or provide any context, such as what questions were asked; and

(c) in those circumstances the precise words of the statements cannot be relied upon, and certainly not as a basis for adverse findings against the plaintiff.

• [174] Essentially this is a complaint about the adequacy of the defendant's investigation, but, justified or not, this does not assist the plaintiff. The fact remains that the plaintiff was reported as having made the Moriarty Statements. That is some evidence that he did so. It cannot be said that there is no evidence whatsoever that the Moriarty Statements were made.
• [175] Further, in the Second Examination, the plaintiff admitted that it was possible he said something along the lines attributed to him by the NT News; that that was the way he was feeling at the time;[99] and that he thought he had said to the ABC what he was quoted as saying.[100]

The finding that the Moriarty Statements were false

• [176] The plaintiff contends that there is no evidence that the Moriarty Statements (as reported) were false. This is based on a contention that the Moriarty Statements refer to a limited time period - ie from the creation of the Jaytex bid, the submission of that bid, the shortlisting and the eventual awarding of the contract. The plaintiff quoted other statements made by the plaintiff at around the same time in support of this interpretation of the Moriarty Statements and contended that "when read in context, it is clear that the plaintiff [was] referring to the tender assessment panel and their processes" - and nothing else.
• [177] This contention cannot be accepted. First, it is far from clear that the plaintiff's interpretation of the meaning/scope of the Moriarty Statements is correct - let alone the only correct one. The Moriarty Statements include the following: "Mr Dixon was at arm's length from this process at all times. Once the announcement was made about the project, he was no longer involved in any of the processes, including Jaytex's submission."
• [178] A review of the transcript of the Second Examination reveals that although at times the plaintiff stressed that he had been talking about the award of the tender and the tender process,[101] he also said that "the announcement" he was referring to was "the announcement made about the project, that was the announcement of the grant that we could do the grandstand".[102]
• [179] There is evidence that these statements were false. On the face of the statements, the plaintiff was saying that Mr Dixon "was at arm's length at all times," from the time "the announcement was made about the project," and that from that time Mr Dixon "was no longer involved in any of the processes, including Jaytex's submission". Even if that is not the only possible interpretation of the Moriarty Statements, it is certainly not an unreasonable one. For this submission to succeed, the plaintiff must establish that there is no evidence whatsoever that these statements are untrue. However, there is evidence that:

(a) Mr Dixon attended and participated at a Board meeting of DTCI on 18 June 2019 (at which the proposal for the project was announced);

(b) Mr Dixon thereafter attended and participated in another Board meeting on 30 July 2019 at which time the project was again discussed and Mr Dixon moved that the plaintiff be remunerated for his work in preparing the tender documents for the project; and

(c) after the Board meeting on 18 June, Mr Moss and Mr Dixon worked on preparing Jaytex's proposal for the project. (There has been no challenge in the present proceeding to this finding of fact in the Report.)

• [180] There was a finding in the Report that the plaintiff did not know that Mr Dixon was involved in the preparation of the Jaytex bid. The adverse finding against the plaintiff in relation to his statement that Mr Dixon was not so involved was that he represented that he knew that was the case when he had no knowledge of it. This was based on his answers to questions in the Second Examination.
• [181] A review of the Transcript of the Second Examination reveals that the plaintiff's answers to questions about the meaning of the Moriarty Statements, and what he knew at the time were often non-responsive and evasive[103] and full of statements such as that what he said was "true to how I felt about it".[104] When pressed as to whether what he said to the ABC was in fact true, the plaintiff gave a series of evasive answers. Eventually, it was put to him: "I'm just intrigued about the part of your answer [in the First Examination] where you said that Brett [Dixon] made clear he was stepping away, and then what you said was, and I quote it,"... "and he stepped away from our point of view." Do you want to correct that answer? The plaintiff responded, "Well, I can see that he didn't step away. So, yes."[105] This is an admission that at least part of what the plaintiff told the ABC was untrue.
• [182] The plaintiff has therefore failed to establish that there is no evidence that the Moriarty Statements were false.

Finding that the Moriarty Statements were made with at least one purpose being to protect the interest of Mr Dixon

• [183] The plaintiff contends that there is no evidence to support this finding, and relies on evidence given by the plaintiff that the relationship between he and Mr Dixon was strained at best and that he "wasn't knowingly sticking with Mr Dixon".[106]
• [184] The fact that the plaintiff gave evidence that might be considered contrary to this finding does not mean there was no evidence which could rationally support the finding. The making of the Moriarty Statements, their at least arguable falsity; their timing; the fact that similar statements were being made by Mr Dixon, both to the Chief Minister and publically; along with the fact that Mr Dixon sent advance copies of his communications to the Chief Minister on the same subject to the plaintiff, are all circumstantial evidence from which an inference might be drawn that at least one purpose of the making of the Moriarty Statements was to benefit Mr Dixon.
• [185] The plaintiff has not established that there is no evidence on which the defendant could rationally conclude that at least one of the making of the plaintiff's statements was to benefit Mr Dixon.

Finding that the plaintiff's conduct in making the Moriarty Statements could constitute 'misconduct' pursuant to s 11(2) of the ICAC Act as it constituted reasonable grounds for taking disciplinary action against the plaintiff by the Darwin Turf Club

• [186] This finding was made for the purpose of s 11(2) of the ICAC Act which defines "misconduct" to include conduct which "constitutes reasonable grounds for taking disciplinary action against [a public officer] (short of dismissal or termination of appointment) or varying the terms of the officer's appointment".
• [187] The defendant contends that there were at least three means whereby the plaintiff could have been subject to disciplinary action:

(a) Under clause 3.14(d) of the DTCI Constitution, the Board could have suspended the plaintiff's membership of the Club on the basis that his conduct was detrimental to the interests of the Club.

(b) The Commissioner for Consumer Affairs could have applied to the Supreme Court for an order against the plaintiff under the Associations Act 2003 (NT) on the ground that he was guilty of fraud, negligence, default, breach of trust or breach of duty in relation to DTCI as an incorporated association.

(c) As the plaintiff undertook paid work for DTCI, DTCI could have taken disciplinary action against the plaintiff short of dismissal for breach of the DTCI Code of Conduct.

• [188] The plaintiff contends that none of the three kinds of disciplinary action which the defendant says could have been made against the plaintiff could have been made against him in his capacity as a Board member. There is no requirement under the relevant definition that this be so.
• [189] In any event, the gravamen of this complaint is not the legal basis upon which disciplinary action might have been taken against the plaintiff, but whether there was any evidence at all to ground a finding that the plaintiff had been guilty of the kind of misconduct that would warrant disciplinary action. For the reasons set out below in considering whether there was evidence of dishonesty or impropriety, there was such evidence.

Finding that the plaintiff's conduct could constitute 'misconduct' pursuant to s 11(2) of the ICAC Act as it involved dishonesty or impropriety

• [190] The plaintiff contends that this finding was not open on the evidence and contends further that this finding contradicts the defendant's assessment of the plaintiff as a witness in that the defendant thanked the plaintiff for the frankness of his evidence, for being straightforward and for the personal integrity that he brought to bear upon the things that he did.
• [191] The defendant contended that these findings in the Report related to the plaintiff's evidence in the First Examination, but in any case, this does not mean there was no evidence on which the defendant could have found that the Moriarty Statements were made dishonestly. There is evidence on which the defendant could rationally have found that the plaintiff made the Moriarty Statements; that they were untrue; and that the plaintiff knew they were untrue - which would ipso facto have amounted to dishonesty. The plaintiff was present at the meeting on 30 July 2019 at which Mr Dixon was present and actively participated and at which the project was discussed and at least one decision concerning the project was made, namely to remunerate the plaintiff for the work he had done.
• [192] The plaintiff has failed to establish that there was no evidence on the basis of which the defendant could rationally have made a finding that the plaintiff acted dishonestly or with impropriety in making the Moriarty Statements.

Finding that the plaintiff acted in breach of public trust

• [193] The plaintiff contends that there was no duty on the plaintiff as a Board member of DTCI to act in the public interest. However, it is sufficient to ground a finding that the plaintiff acted in breach of public trust that the plaintiff's actions concerned the expenditure of public money.[107] There is no dispute that the plaintiff's statements concerned Mr Dixon's involvement in a project which was to be paid for with $12 million of public money.

Finding that the plaintiff's statements provide a basis for DTCI to take action to sanction the plaintiff for his conduct as a member of the Board.

• [194] The plaintiff contends that there is no evidence to support this finding saying that the defendant made no attempt to identify in the DTCI documents any basis on which DTCI could have sanctioned the plaintiff. This is, essentially, a complaint about the adequacy of the defendant's reasons, and does not demonstrate that there was no evidence for this finding.[108] The fact that there is some evidence which was capable of forming a rational basis for the finding of dishonesty in making the Moriarty Statements is enough to dispose of this ground.
• [195] The remarks of Beazley P (with whom Bathurst CJ and Basten JA agreed) in D'Amore v ICAC[109] are equally apposite to this ground of review in this proceeding.

The attempt to have this Court revisit factual findings in the absence of legal error was, in effect, an attempt to conduct an appeal by way of rehearing. That exercise was not available to the applicant, the Court being limited to the restricted role provided by the supervisory jurisdiction under s 69 of the Supreme Court Act.

Ground 12: The defendant published the Report in a manner that was not authorised pursuant to s 50 and/or s 55 of the ICAC Act.

• [197] The defendant sent the Report to the Chief Minister and to the Minister for Racing Gaming and Licensing on 24 June 202, referring to the Report as an Investigation Report, purportedly provided pursuant to s 50 of the ICAC Act. The plaintiff claims that this was not authorised by the ICAC Act.
• [198] Section 50 provides (relevantly):

(1) The ICAC may make a report (an investigation report) on an investigation to a responsible authority for a public body or public officer whose conduct is the subject of the investigation.

(a) for a public body or public officer other than a minister or an MLA:

(i) an entity having authority to deal with one or more matters relating to improper conduct the subject of the investigation to which the report relates; or

(ii) an entity whose functions include making future decisions in the public interest that may be better informed by receipt of the investigation report; or

(b) for a minister or an MLA other than the Speaker - the Speaker; or

(c) for the Speaker - the Deputy Speaker.

• [199] Counsel for the plaintiff clarified in oral submissions that the plaintiff's only argument in support of the proposition that the publication of the Report to the Minister was unlawful was that, being a natural person, a Minister cannot be an "entity" within the meaning of s 50(7)(1)(a). There is no substance to that contention. The ordinary meaning of the word "entity" encompasses natural persons. Further the word is used in the ICAC Act to include natural persons. For example the definition of "independent entity" in s 4 includes 12 nominated natural persons as well as a number of what might be described as organisations and the definition of "referral entity" in that section likewise states that it means "any person or body identified in section 25 or 25A to whom or to which a matter may be referred". These include (in s 25) "the Minister administering Part II of the Police Administration Act 1978".
• [200] In the case of a report into an investigation of the propriety of the expenditure of $12 million of public money on a grandstand at a race track by a turf club, both the Chief Minister, as the head of the government who made the grant, and the Minister for Racing are clearly and obviously entities "whose functions include making future decisions in the public interest that may be better informed by receipt of the investigation report" within the meaning of s 50(7)(a)(ii) and probably fall within s 50(7)(a)(i) as well.
• [201] The plaintiff also contends that the defendant had no authority to publish the Report to the public at large by putting the Report with the heading "Public Statement" on the ICAC website the day after providing it to the Minister and the Chief Minister.
• [202] Section 55 of the Act provides:

(1) This section applies in relation to a particular matter that the ICAC is dealing with or has dealt with, including a matter the ICAC has referred to a referral entity.

(2) The ICAC may make a statement in relation to the matter for any of the following purposes:

(a) to provide information about action taken or that may be taken by the ICAC in relation to the matter;

(b) to indicate that it would be inappropriate for the ICAC to comment on the matter;

(c) to refuse to confirm or deny anything in relation to the matter;

(d) to seek evidence in relation to the matter in the course of preliminary inquiries into, or an investigation of, the matter;

(e) to provide information about a referral, including the outcome of the referral;

(f) to address public misconception about a person or issue of which the ICAC has particular knowledge;

(g) to request the Legislative Assembly to authorise the publication, or disclosure to the ICAC, of information or an item that is or may be the subject of parliamentary privilege.

(3) The ICAC may make a public statement, in a manner determined by the ICAC, to:

(a) the public at large; or

(b) a section of the public; or

(c) a particular person or body.

• [203] The plaintiff contends that this section does not authorise the publication of a whole investigation report, but only authorises the publication of "limited" reports for the purposes set out in the section, but was not able to say what was meant by "limited" in that context.
• [204] The plaintiff argues that because s 50 provides that an investigation report may include a finding as to whether a person has engaged in, is engaging in or is about to engage in, improper conduct[110] and s 55 does not say that a public statement may contain such findings, s 55 did not authorise the publication of the Adverse Findings.
• [205] The plaintiff's contention cannot be accepted. Section 59 of the ICAC Act sets out specific limitations on what can be contained in certain kinds of reports under the ICAC Act and in public statements.[111] Such reports and public statements must not contain any material that would not be admissible in civil, criminal or disciplinary proceedings because of s 82, unless the material is already in the public domain. (Section 82 is a protective section which provides that evidence given to the ICAC in certain circumstances is not admissible in evidence against the witness in a civil, criminal or disciplinary proceeding.) There is no warrant in the ICAC Act to imply other limitations on what may be contained in a public statement provided the public statement is made for one or more of the purposes authorised by s 55. Those purposes include providing "information about a referral, including the outcome of the referral". The publication of the Report was apt to fulfil that purpose and there is no suggestion that it contained information prohibited from publication by s 59.
• [206] Ground 12 is not made out.

• [207] Grounds 5 and 6 for judicial review advanced by the plaintiff are made out. I make the following declarations.

(a) The defendant failed to afford the plaintiff procedural fairness by failing to ensure that he was given notice of a proposal to make findings of unsatisfactory conduct and breach of public trust against him in his capacity as a member of the DTCI Board and to afford him the opportunity to respond to such proposed findings.

(b) The defendant failed to give the plaintiff a reasonable opportunity to respond to proposed findings that he was guilty of unsatisfactory conduct and breach of public trust in his capacity as a member of the DTCI Board as required by s 50(2) of the ICAC Act and, accordingly had no jurisdiction to make those findings against him.

• [208] All other grounds of review are dismissed.

[1] [2018] HCA 34; (2018) 264 CLR 123, 132 at [23].

[2] Supra; See also Turner v Northern Territory [2021] NTSC 55 at [23] ("Turner").

[3] Hossain v Minister for Immigration & Border Protection [2018] HCA 34; (2018) 264 CLR 123, 133 at [24].

[4] Turner [2021] NTSC 55 at [24].

[6] Greiner (1992) 28 NSWLR 125, 148; Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, 159-160.

[7] Amended originating motion para 1(a)(i)

[8] Amended originating motion para 1(a)(ii)

[13] This is the extract of the Report referred to in these reasons as the Board Natural Justice Extract.

[37] These paragraphs give an outline of the defendant's understanding of his obligations under the ICAC Act.

[39] [2019] NSWSC 556 at [95]

[40] [2020] SASCFC 57 at [142]

[41] (2016) 334 ALR 653; [2016] HCA 29 at [75] ("SZSSJ"); See also Obeid v Ipp [2016] NSWSC 1376; (2016) 338 ALR 234 ("Obeid") at [83]

[42] (2016) 338 ALR 234 at [83]

[43] [2005] HCA 72; (2005) 225 CLR 88 at 93; [2005] HCA 72; 222 ALR 411 at 414; [2005] HCA 72; 87 ALD 512 at 515; [2005] HCA72 ("Veal"); Obeid at [84] to [86]

[44] [1985] HCA 81; (1985) 159 CLR 550 at 627; [1985] HCA 81; 62 ALR 321 at 379 ("Kioa")

[45] (2015) 256 CLR 326; 326 ALR 1; [2015] HCA 40 at [53] ("WZARH")

[49] at [55] to [57] per Gageler and Gordon JJ

[52] Report at [438] to [440]; These paragraphs also contained a finding against the CEO, Mr Stacy.

[57] There is reference elsewhere in the report of a recording of the meeting.

[59] It is apparent from this paragraph that the Board members were already subject to s 147 notices without such a qualification. This must be the case or there would have been nothing to stop them from consulting Mr Dixon and Mr Moriarty in the period between receiving the Board Natural Justice Extract (7 May) and receiving the s 147 notice (11 May).

[60] Paras [377] and [388] in the Report; paras [317] and [327] of the DTCI Natural Justice Extract

[61] to use a term which recurs frequently in the Report

[62] (2006) 228 CLR 152; 231 ALR 592; 93 ALD 300; [2006] HCA 63 at [32] ("SZBEL")

[63] [1994] FCA 1074; (1994) 49 FCR 576 at 590-1; [1994] FCA 1074; 127 ALR 699 at 714; [1994] FCA 1074; 34 ALD 324 at 330 ("Alphaone")

[64] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145; [1986] HCA 54; 67 ALR 21 at 23; [1986] HCA 54; 4 MVR 542 ("Stead"); WZARH at [60]; Obeid at [97]

[67] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [15]

[68] Carrascalao v Minister for Immigration (2017) 252 FCR 352 at [34] ("Carascalao")

[69] Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at [13] per Mason P; D'Amore v ICAC [2013] NSWCA 187; (2013) 303 ALR 242 at [56].

[78] Response at 3.20 and 3.24 to 3.27

[96] CRU18 v Minister for Home Affairs [2020] FCAFC 129; (2020) 277 FCR 493 at [29]

[97] Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 75 ALJR at [35] to [36] per McHugh J

[98] R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100, 119-120 per Dixon CJ, Willams, Webb and Fullagar JJ

[99] Transcript of the Second Examination p 5

[100] Transcript of the Second Examination p 13

[101] Transcript of the Second Examination pp 7, 9, 10 and elsewhere

[102] Transcript of the Second Examination p 9

[103] For example, on pages 10 to 11 of the Transcript of the Second Examination, there is a long series of non-responsive answers to the question: "Did you understand that the purpose of the making of these statements was to offer comfort to those concerned that Mr Dixon had not used his position as the chairman of the DTC to advantage Jaytex?" The question was never answered.

[104] Transcript of the Second Examination p 13

[105] Transcript of the Second Examination p 19

[106] Cozens affidavit dated 17 November 2021; exhibits PMC 5 pp 65 to 66 and PMC15

[108] The ICAC Act does not impose on the ICAC a general duty to provide reasons for adverse findings.

[109] [2013] NSWCA 187; (2013) 303 ALR 242 at [274]