Sherrington v ICAC & Ors [2023] NTCA 11

(a) the nature and extent of the false and misleading content in the IR and PS;

(b) the irrational or incomplete reasoning contained in the IR and PS in support of the allegations;

(c) the general and conclusory way in which the allegations are expressed in the IR and PS without reference to specific incidents or factual allegations;

(d) the ease with which the respondents could have checked the truth and accuracy of the content of the IR and PS by reference to the extensive investigative powers of the respondents, and the persons and records identified by the applicant as relevant;

(e) the steps taken within the investigation which prevented the applicant from being able to effectively respond to the allegations including:

1. providing the applicant only limited and misleading information about the subject-matter of the investigation in advance of her examination;
2. prohibiting the applicant from speaking to Milingimbi School staff or others about the allegations;
3. removing the applicant from Milingimbi School and with it her ability to access to relevant records;
4. expressing the allegations in general and conclusory terms in the IR and PS without reference to specific incidents of facts, and failing to identify the material facts underlying the allegations;
5. restricting the applicant's access to evidence relied upon by the ICAC; and
6. limiting the applicant's time to respond;

(f) the simplistic engagement of the IR and PS with complex issues;

(g) the failure of the IR and PS to identify and meaningfully grapple with the applicant's response to the allegations given during her examination and in response to the draft proposed IR and PS;

(h) the failure of the IR and PS to offer any serious explanation for why evidence of the applicant (including documentary evidence) was rejected save asserting in general and impenetrable terms that her explanations (not identified in the IR or PS) were against the "weight of the evidence" (also not identified in the IR or PS) and could not be believed; and

(i) the failure to obtain evidence from relevant staff at Milingimbi School involved in the financial decision-making and other conduct the subject of the investigation.

At the outset it must be observed that any analysis of the importance of the "critical circumstances" identified by the applicant is greatly hampered by the breadth of the description of some of those circumstances and lack of particulars. For example, the submission that "the nature and extent of the false and misleading content in the report" is relevant to drawing an inference as to the ICAC's state of mind is unhelpful without identification of the particular content of the report that is said to be false and misleading, and an analysis of why that is said to be so. This observation applies to "critical circumstances" (a), (b), (c), (e)(i), (e)(iv), (f), (g), and (i). In order to found an inference of bad faith, a failure on the part of the ICAC to interview persons or refer to documents must be shown to be a relevant failure, that is, a failure to interview persons who could provide relevant information or to refer to a document containing relevant information. The failure of the applicant to provide particulars of those allegations makes it impossible to form a judgment about whether any such failure on the part of the ICAC may found a reasonable belief that the ICAC acted in bad faith.

• [40] That is to say, the primary judge did not ignore evidence that Mr Fleming made no real attempt to investigate the serious allegations against the appellant; made no real attempt to comply with the law; and/or acted with an ulterior motive. Rather, his Honour pointed out that the lack of particularity in the appellant's pleading of these matters made it "impossible to form a judgment about whether any such failure on the part of the ICAC may found a reasonable belief that the ICAC acted in bad faith".
• [41] It seems to me that the primary judge was almost certainly correct in his observation that:

[t]his broad-brush approach to identification of the precise content of the IR and PS to which the applicant refers, and her similar approach to demonstrating that the material can found an inference that the ICAC acted in bad faith, is probably a function of the applicant's error in identifying the approach required for the Court to grant leave under s 155(5) of the ICAC Act as being akin to that required in determining an application for summary dismissal of proceedings ...

• [42] Given this fatal flaw in the case advanced by the appellant before the primary judge, the primary judge made the following observations with which I respectfully agree.

In written submissions, the applicant stated that a number of the "critical circumstances" would "only be explored fully at trial", an approach which ignores the fact that the onus falls upon her in the present application, in order for her to be allowed to proceed to trial against Mr Fleming, to demonstrate that there are substantial reasons to believe that Mr Fleming acted in bad faith. It is no answer to the onus imposed on the applicant by the legislature to say "we will explore it at trial", just as it is no answer to say that the matter may be explored through discovery and interrogatories.

• [43] The appellant contends that the primary judge erred in adopting this approach because "the exercise of statutory power may be subjectively dishonest whether or not the person believes they act in accordance with the governing legislation, as in the case where they hold an ulterior motive", citing in support Three Rivers District Council v Bank of England (No 3);[18] and Nyoni v Shire of Kellerberrin.[19]
• [44] There was no error in the approach adopted by the primary judge. The quoted passage is simply part of the primary judge's application of the test which the primary judge correctly articulated: are there real reasons (as opposed to ephemeral or insubstantial reasons) for believing that Mr Fleming did not honestly believe that he was acting in accordance with the ICAC Act at the time he did those things of which the appellant complains?

Ground 3: The primary judge applied the wrong test in determining whether there were substantial grounds to believe the ICAC had acted in bad faith

• [45] The appellant contends that the primary judge erred in imposing too onerous a standard of satisfaction when determining whether there were substantial reasons for believing the ICAC had acted in bad faith.
• [46] The appellant contends that s 148F of the Police Administration Act 1978 (NT) ("PAA") provides the only Territory law comparable to s 155(5) of the ICAC Act in that both provisions require a prior grant of leave to plead and run a particular kind of allegation to trial, and contends that under s 148F, the party seeking leave need only make out a prima facie case: Secretary v Northern Territory of Australia.[20]
• [47] Section 148F(2) of the PAA is in the following terms:

(2) A person who makes a police tort claim against the Territory in any legal proceeding may join the member who allegedly committed the tort as a party to the proceeding only if:

(a) the Territory denies it would be vicariously liable for the alleged tort if it were established the member had committed the tort; or

(b) the court grants leave for the claim to include a claim for damages in the nature of punitive damages.

• [48] In Secretary,[21] the Associate Justice held, on an application for leave to amend a pleading to claim punitive damages:[22]

As to the requirements to secure a grant of leave to claim punitive damages, such damages are awarded in addition to general damages where that is considered necessary for the purposes of punishing inappropriate conduct, for reflecting the Court's disapproval of that conduct and to deter recurrences. It is not a cause of action or relief in its own right and is merely additional damages payable in respect of the relief which the Plaintiffs would otherwise be entitled to. Whether or not to grant leave is a matter of discretion and the discretion is at large. However, the party seeking leave has the onus to satisfy the Court that there is sufficient evidence to establish an entitlement to punitive damages. The Court is not concerned with the merits of a claim for punitive damages or to assess the credibility of the evidence relied on. It is only necessary for the claimant to make out a prima facie case and therefore the available evidence is to be taken at its highest in favour of the Plaintiffs.[23]

Subject to a proper pleading to address the embarrassment evident in paragraph 31(a)(i) as it currently stands, I think there is a prima facie case of entitlement to punitive damages. The evidence can support a finding that the police indiscriminately pointed their weapons at community members. Although I acknowledge that this is based only on one side of the story, and the assault may be justified thereby negating any liability for damages, on the evidence there is no justification for the indiscriminate pointing of weapons at persons. In those circumstances, given the generous and favourable view required to be taken of the evidence for prima facie case purposes, I am of the view that it can be a basis for a finding that the conduct is in conscious and contumelious disregard of the various Plaintiffs' right. This is not limited to infant Plaintiffs and does not depend merely on children witnessing police activities. I am prepared to give leave limited to that at least.

• [49] The appellant's reliance on Secretary is misplaced. Section 148F of the PAA does not impose a test that is equivalent to s 155(5) of the ICAC Act. PAA s 148F does not require, as a prerequisite to a grant of leave, that the Court form a state of satisfaction about the grounds available to establish the case for which leave is required: s 155(5) of the ICAC Act does. Section 148F(2)(b) of the PAA simply prohibits certain proceedings unless "the court grants leave for the claim to include a claim for damages in the nature of punitive damages". Under s 155(5), the Supreme Court is prohibited from giving leave to a person to issue proceedings alleging that a person acted in bad faith when acting, or purportedly acting, in an official capacity, unless the Court is satisfied there are substantial reasons for believing the person acted in bad faith. The two sections are not functionally equivalent - or even similar.
• [50] The primary judge applied the correct test, that is to say that set out in s 155(5), and did not impose too onerous a standard of satisfaction when determining whether there were substantial reasons for believing the ICAC had acted in bad faith. The primary judge set out the approach to be followed in making that determination as follows:[24]

While the present respondents did adduce affidavit evidence, it was directed towards the proposition that the conduct the applicant complains of was conduct of Mr Wild and not that of Mr Fleming. It is sufficient for present purposes to observe that in a case where no evidence addressing bad faith is adduced by a proposed defendant and the applicant's case is based on the drawing of inferences from the evidence adduced, the proper approach, in my view, is that such inferences as may reasonably be drawn in favour of the applicant should be drawn. To attempt to adjudicate between competing inferences, in those circumstances, would be to place a burden of proving the ultimate issue of bad faith on an applicant in the leave proceeding.

• [51] The appellant concedes that this is the proper approach to determining the threshold question in s 155(5), but contends that his Honour "fell into error between that starting point and the Court's ultimate determination that the totality of the evidence did not afford 'substantial reasons for believing' Mr Fleming acted in bad faith".[25] However, the appellant has not demonstrated any error in the primary judge's reasoning process.
• [52] The appellant does not take issue with the primary judge's explanation of the term "substantial" at [36]:[26]

As all parties accepted, the word "substantial" is a word that is susceptible to more than one meaning depending on the context in which it is found. In the context of s 155(5) of the ICAC Act, it means that the evidentiary basis advanced by a plaintiff for leave to be granted to commence proceedings alleging bad faith must be such as to satisfy the Court that there are real reasons (as distinct from ephemeral or insubstantial reasons) to believe that a proposed defendant has acted in bad faith. This inevitably requires the Court to form a judgment as to whether the evidence presented in support of the application satisfies this requirement.

• [53] In the Court below the appellant relied on cases dealing with summary judgment. The primary judge correctly held that the principles relating to summary judgment were not applicable to an application under s 155(4) saying:[27]

In my opinion, little assistance in determining the proper approach to the operation of s 155(5) can be derived from the summary dismissal cases. As submitted by the respondents, the presumption underlying the summary dismissal cases is that ordinarily a litigant should be permitted to litigate their case in the ordinary manner. This may be contrasted with the presumption underlying s 155(5), which is that a litigant should not be permitted to even commence proceedings alleging bad faith unless they demonstrate that there are substantial reasons for believing that the proposed defendant has acted in bad faith.

• [54] The primary judge went on to consider the available evidence noting:

The determination of whether substantial reasons exist for believing that a person to whom s 155 applies has acted in bad faith must be based upon evidence which is placed before the Court. The mere fact that allegations are made in a SOC, as in the present case, or in some other form, cannot of itself establish that there are substantial reasons for forming the required belief. If a mere allegation were sufficient, the clear legislative intention found in s 155 would be rendered nugatory. The requirement that the Court achieve the necessary level of satisfaction based upon evidence obliges the Court, by necessary implication, to assess the evidence to determine whether it can support the level of satisfaction required. This also means that in making a determination whether the evidence adduced does support the level of satisfaction required, the Court will not take into account that further evidence may be uncovered as a result of discovery or interrogatories.

It is not to the point that if leave is granted to the applicant, the onus of proving that he is entitled to the benefit of the defence in s 155 will fall upon Mr Fleming. The fact that a legal onus may be held by one party or another in the substantive proceedings cannot logically affect the question whether the evidence before the Court on an application for leave under s 155(4) satisfies the test found in s 155(5).

Again, I respectfully agree with the primary judge's reasoning.

Considering all the evidence together, I am not satisfied that there are substantial reasons to believe that Mr Fleming acted in bad faith in the conduct of the investigation into the applicant or in the preparation or publication of the IR or the PS. The application for leave under s 155(4) of the ICAC Act is refused.

• [56] The appellant has demonstrated no error in this reasoning process: in particular, the appellant has not shown that the primary judge adopted too onerous a test when determining whether there were substantial reasons to believe that the ICAC had been guilty of acting in bad faith.
• [57] The appellant complains that, contrary to the indication in Sherrington NTSC at [40] that the proper approach to making the determination required by s 155(5) is that such inferences as may reasonably be drawn in favour of the appellant should be drawn, the Court below preferred alternative explanations unfavourable to the appellant and unsupported by evidence. The appellant contends that the primary judge adopted this approach at Sherrington NTSC at [120], [123] and [124].[29]
• [58] Paragraph [120] of Sherrington NTSC is in the following terms:

As the respondents correctly observe, the verbatim statement attributed to Mr Fleming did not commit to providing any reports. In any event, and perhaps more importantly, the applicant cannot demonstrate that the investigation into her conduct was one of the matters to which Mr Fleming referred. The statements attributed to Mr Fleming in the news article cannot reasonably raise an inference that Mr Fleming had pre-judged the outcome of the investigation into the applicant's conduct.

• [59] This paragraph does not contain any inference drawn unfavourable to the appellant. To say that the statements "cannot reasonably raise an inference" in favour of the appellant is not the same as drawing an inference unfavourable to the appellant. The primary judge drew no inference. Further, the words: "the applicant cannot demonstrate that the investigation into her conduct was one of the matters to which Mr Fleming referred" is a reference to the fact that the onus was on the appellant to adduce sufficient evidence to satisfy the test under s 155(5).
• [60] Paragraphs [123] and [124] are in the following terms:

The applicant submitted that the fact the PS makes no reference to any investigation or enquiry undertaken by the ICAC to verify or disprove any of the matters set out by her in her response to the draft IR, together with the failure of the respondents to adduce any evidence of such investigations in the present application, support the inference that the investigation against her was prejudged and that Mr Fleming had adopted an inflexible timetable to conclude the investigation. As noted above, there was no obligation cast on the ICAC by the provisions of the ICAC Act or otherwise to set out his reasoning for reaching his conclusions in the PS (or in the IR). This submission also overlooks the fact that the applicant has the obligation to satisfy me that there are substantial reasons for believing that Mr Fleming acted in bad faith.

The final matter raised by the applicant under this head of her application is that the "publication of the public statement was intended...to cause a sensation". The applicant submitted that Mr Fleming had resigned from his office amid criticism of his performance and that the publication of a "sensationalist report making serious allegations against a named individual" could be seen as part of a strategy to divert the media away from internal scandals within his office and from the personal criticisms made against him, and to demonstrate positive performance outcomes by him in his office. In my opinion, this reasoning is based upon speculation rather than a logical process. It could not reasonably be inferred from the material put before this Court that Mr Fleming engaged in a deliberate process of attempting to divert criticism of his performance in the office of the ICAC by designedly publishing reports falsely finding the applicant had engaged in misconduct for the purpose of deflecting criticism of himself in his office.

• [61] In [123] the primary judge once again (correctly) refers to the onus being on the appellant to satisfy the threshold test under s 155(5): in that paragraph the primary judge does not draw any inference unfavourable to the appellant.
• [62] In [124] the primary judge says that the inference sought to be drawn by the appellant "cannot reasonably be inferred from the material put before the Court". In so saying, his Honour is applying the standard set out in [40] of the judgment conceded by the appellant to be the appropriate standard. A refusal to draw an inference in favour of the appellant because it cannot reasonably be drawn on the available evidence is not the same as drawing an inference unfavourable to the appellant: it does not involve drawing any inference at all.
• [63] The appellant also complains that the Court below required the appellant establish that the investigation was "so inadequate as to effectively not amount to an investigation at all"[30] or the evidence all one way[31] before giving consideration to complaints about the investigation.[32] Those paragraphs of the judgment read as follows:

The applicant's complaint is one regarding the sufficiency of the investigation undertaken by the ICAC. While the ICAC is given broad discretion in the way that he or she conducts an investigation, that does not mean that a finding that there are substantial reasons for believing that the ICAC has acted in bad faith with regard to the sufficiency of an investigation could never be substantiated. It is possible to contemplate a case, hypothetically at least, where the supposed investigation was so inadequate as to effectively not amount to an investigation at all. The existence of such an inadequate investigation would be evidence capable of raising an inference that the ICAC did not hold an honest belief that he or she was acting in accordance with the terms of the ICAC Act in conducting the supposed investigation. This would not be inconsistent with the object of the ICAC Act. It need hardly be said that the ICAC would not be acting consistently with the object of the ICAC Act by purporting to make findings of wrongdoing without conducting any, or any real, investigation.

The applicant's complaint is that the ICAC either knew that the allegations were false or was recklessly indifferent to the truth or falsity of the allegations. I accept that if the applicant shows that there are substantial reasons for believing that the ICAC had one of those states of mind at the relevant time, then leave under s 155(5) should be granted. I would, however, add the caveat that proof that the ICAC could (or even, in my estimation, should) have arrived at a different conclusion regarding the allegations against the applicant does not, of itself, demonstrate bad faith on the part of the ICAC. The present application is not a form of merits review of the ICAC's decision. It must be accepted, however, that if all the evidence was one way, in favour of the innocence of the applicant, and the ICAC nevertheless determined that the applicant was guilty of misconduct, this may be relevant to drawing an inference that the ICAC had acted in bad faith.

• [64] These paragraphs follow logically from the finding by the primary judge that, in order to show bad faith in the investigation and reporting functions of the ICAC, the appellant would necessarily have to show dishonesty in the sense that the ICAC did not hold an honest belief that he or she was acting in accordance with the terms of the ICAC Act in conducting the supposed investigation. This finding is the subject of the unsuccessful first ground of appeal. That ground of appeal being unsuccessful, the challenge to these two paragraphs of the decision also fails.

Ground 2: failure to engage with the appellant's arguments

• [65] The appellant's final contention is that the primary judge did not engage with the appellant's arguments but, rather, in the case of seven arguments advanced by the appellant, misinterpreted the argument, summarily rejected the argument without reference to its substance or overlooked the argument all together. This contention cannot be accepted.
• [66] The appellant contends that "at the heart of the appellant's case is a complaint that Mr Fleming published a series of extremely serious allegations against the appellant which allegations are false or misleading"; and that "Mr Fleming did so knowingly or recklessly indifferent to their truth". The appellant contends that, after finding that the Court's consideration of a number of the grounds was hampered by lack of particularity and broad-brush allegations"[33] the Court did not go on to consider each of the detailed examples given in support the considerations.
• [67] In response, the respondents submit that the sub-grounds advanced in relation to this ground of appeal cannot succeed as the matters which constitute the alleged "detailed examples" given to the primary judge amounted to the appellant seeking merits review of findings of fact by the ICAC.
• [68] The appellant contends that merits review is an evaluation of the merits of a decision for its own ends whereas the appellant was challenging Mr Fleming's conclusions in order to show that Mr Fleming was recklessly indifferent to, or did not make a real attempt to determine, the truth of the allegations before publishing them.
• [69] However, the appellant's reasoning for this ground relied on an asserted absence of persuasive reasoning in the Investigation Report and the public statement. As the primary judge identified:

(a) the ICAC Act does not oblige the ICAC to provide reasons for the findings of fact in a report or public statement,

(b) no such obligation arises at common law, and

(c) it is particularly inappropriate to import into the administrative context obligations from the judicial context to expose a decision-maker's reasons for preferring one tranche of evidence over another.[34]

It can hardly be argued that a failure of the ICAC to go further than the law requires in providing information in the report is evidence of bad faith on the part of the ICAC, no matter how useful further information may be to a party adversely mentioned in the report. ...

• [70] Further, the appellant bore the onus of satisfying the primary judge of the condition precedent in s 155(5). Attempting to rely on a purported absence of reasoning in the Investigation Report was effectively reversing that onus.
• [71] There is no error in the reasoning of the primary judge or the conclusions reached. This ground of appeal must fail. I add, for completeness in relation to this ground that I agree with the detailed analysis and conclusions of Reeves J on this ground at [123] to [136] below.

• [72] I agree that this appeal should be dismissed for the reasons given by Reeves J. I note in any event that both his Honour and Kelly J are ad idem insofar as Kelly J agrees with the analysis of the tort of misfeasance in public office contained in the judgment of Reeves J and with his Honour's reasoning and conclusion that the appellant has not satisfied the onus of establishing the pre-condition in s 155(5) of the Independent Commissioner Against Corruption Act 2017.

• [73] On 9 December 2021 Ms Jennifer Sherrington filed a writ with an annexed statement of claim together with a summons that sought the following order:

The plaintiff has leave pursuant to section 155(4) of the Independent Commissioner against Corruption Act 2017 to allege bad faith against the First and Second Defendants in the manner pleaded and particularised in the Statement of Claim filed in this matter.

• [74] Section 155 of the Independent Commissioner Against Corruption Act (ICAC Act) provides:

Protection from liability - acting in official capacity

(1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith when acting, or purportedly acting, in an official capacity.

(2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.

(3) This section does not derogate from Part VIIA of the Police Administration Act 1978.

(4) If a person is alleged to have acted in bad faith when acting, or purportedly acting, in an official capacity, a civil or criminal proceeding for the act may only be brought by leave of the Supreme Court.

(5) The Supreme Court is not to grant leave unless satisfied there are substantial reasons for believing the person acted in bad faith. (emphasis added)

• [75] The defendants to whom this proposed order referred were the Independent Commissioner against Corruption (the ICAC), the first defendant, and Mr Kenneth Fleming, the second defendant, the previous occupant of that office.
• [76] Since the office of the ICAC is not established under the ICAC Act as a legal person capable of being sued, that office could not be sued in that capacity. It follows that the first defendant was not properly joined as a party in this proceeding. Accordingly an amendment should be made to reflect that fact. However, this deficit is not fatal to this appeal because Mr Fleming, as an individual, is capable of being sued whether personally, or as the holder of that office.

1. Ms Sherrington's application was heard by the primary Judge and dismissed[36]. Because that was an interlocutory judgment, Ms Sherrington required leave to appeal the decision. That leave was subsequently granted[37].

• [78] Ms Sherrington's appeal now comes before this Court. For the reasons that follow, I consider it should be dismissed.

• [79] The factual background to this appeal is conveniently summarised in the

• [80] Ms Sherrington's notice of appeal contains three grounds of appeal. They may be summarised as follows:

(a) Ground 1: that the primary Judge adopted a narrow construction of "bad faith" by limiting it to Mr Fleming's subjective state of mind and by not finding that it may be established objectively from his alleged failure to make any "real attempt (including through honest ineptitude)" to determine whether or not the Serious Allegations were true before publishing them in PS.

(b) Ground 2: that the primary Judge failed to properly consider her case in several respects including her claims that inferences of "bad faith" could be drawn from various alleged failings in the conduct of the joint investigation, including: the failure to properly investigate her exculpatory evidence; the alleged irrationality in the reasons provided in the PS; and the circumstances in which the PS was published including the indications within it of personal animus towards her and Mr Fleming's predetermination of the alleged adverse findings.

(c) Ground 3: that the primary Judge adopted too onerous a standard with respect to the expression "substantial reasons for believing" in s 155(5) of the ICAC Act and thereby required her to "prove the state of mind of Mr Fleming by way of preliminary trial before commencing proceedings".

• [81] Since grounds 1 and 3 ([80](a) and (c) above) both raise issues about the construction of s 155(5) of the ICAC Act they will be considered together first, followed by ground 2 ([80](b) above).

The bad faith pleaded in the Statement of Claim

• [82] However, because the main focus of these three grounds of appeal is the bad faith pleaded in the Statement of Claim (SoC), it is convenient to outline the allegations bearing on that topic before addressing them. The primary relief sought by Ms Sherrington in her SoC is damages including aggravated damages and exemplary damages. She also sought declarations to the effect that the publication and promotion of the PS and the preparation of the IR were unlawful.
• [83] Her claim for damages is founded on Mr Fleming having, in his capacity as the Independent Commissioner against Corruption, allegedly committed the tort of misfeasance in public office. That claim is put on the basis that, in publishing and promoting the PS, Mr Fleming allegedly did so intending to cause injury or harm to Ms Sherrington (at [84] of the SoC). Alternatively it is put on the basis that he knew publishing and promoting the PS would cause injury or harm to her and in doing so he knew, or was recklessly indifferent to the fact that he acted beyond power (at [85] and [86] of the SoC).
• [84] The injury or harm concerned is particularised in the SoC (at [83]) in the following terms:

(1) Following publication of the PS there was considerable media reporting of the Serious Allegations.

(2) Ms Sherrington was named in connection with those reports and the Plaintiff's image has been published in connection with the Serious Allegations.

(3) Media reporting of the Serious Allegations is ongoing, with an ABC article referring to the Serious Allegations published on 9 November 2021.

(4) An internet search of Ms Sherrington's name returns a large number of hits associated with the Serious Allegations.

(5) Prior to publication, Ms Sherrington had a good reputation in the Australian community, in the Milingimbi community, and in the education industry.

(6) Publication of the PS containing the Serious Allegations has adversely affect Ms Sherrington's reputation in the Australian community, in the Milingimbi community, and in the education industry.

(7) Publication of the PS containing the Serious Allegations has caused Ms Sherrington significant embarrassment and shame.

(8) Publication of the PS containing the Serious Allegations has adversely affected Ms Sherrington's capacity to obtain future employment.

• [85] In addition, the following particulars were provided of the Intention and Knowledge referred to in the two alternative forms of misfeasance mentioned above:

1. In publishing and promoting the PS, Mr Fleming intended to cause harm to Ms Sherrington.

(1) Mr Fleming anonymised all persons mentioned in the Notice of Tentative Findings except Ms Sherrington and her immediate family members before publishing the PS.

(2) Mr Fleming made gratuitous allegations as to the suitability and performance in employment of Ms Sherrington's named family members.

(3) Notwithstanding that Allegation 5 was concerned with the conduct of the Chair of the School Council, who was responsible for calling and presiding at Council meetings, and the Secretary, who was responsible for keeping minutes; the PS did not identify these persons or attribute improper conduct to those persons.

(4) Notwithstanding that Mr Fleming accepted that the conduct comprising some or all of the Serious Allegations may be systemic, Mr Fleming elected not to investigate others and to target Ms Sherrington alone.

(5) In the premise of particulars (1)-(4) Mr Fleming chose to make an example of, and to personally and professionally shame and embarrass, Ms Sherrington and her immediate family, and to damage Ms Sherrington's reputation and capacity to obtain future employment.

(6) The PS contains florid and sensationalist language intended to attract media attention and ensure wide dissemination to the general public of the Serious Allegations.

(7) In promoting the PS, Mr Fleming intended to ensure wide dissemination to the general public of the Serious Allegations.

(8) Wide dissemination to the general public of the Serious Allegations served only to shame and embarrass Ms Sherrington, and to damage Ms Sherrington's reputation and employment prospects.

(9) Further and better particulars may be provided after discovery and/or interrogatories.

1. In publishing and promoting the PS, Mr Fleming knew or was recklessly indifferent to the fact that he acted beyond power in that:

1. Mr Fleming knew that the Serious Allegations were false or misleading as pleaded and particularised above, or was recklessly indifferent to that fact;
2. Mr Fleming knew that Ms Sherrington was denied procedural fairness as pleaded and particularised above, or was recklessly indifferent to that fact;

1. Mr Fleming knew that the PS was ultra vires or not issued for a purpose within 55(2) of the ICAC Act as pleaded and particularised above, or was recklessly indifferent to that fact;

1. Mr Fleming knew that the PS was an unreasonable exercise of power under s 55(2) of the ICAC Act as pleaded and particularised above, or was recklessly indifferent to that fact;

1. Mr Fleming knew that he had failed to consider relevant considerations before publishing the PS as pleaded and particularised above, or was recklessly indifferent to that fact;

• [86] The six Serious Allegations mentioned in these particulars were set out earlier in the SoC (at [50]) in the following terms:

The PS contains allegations of a serious nature against Ms Sherrington which are false or misleading (collectively, the Serious Allegations).

(1) The PS alleges: (i) that Ms Sherrington falsified student attendance records; (ii) that in 2019 Ms Sherrington effected 2997 dishonest changes from 'absent' to 'present' and a further 1380 records were altered in the same manner in an attempt to secure $1.4 million in additional funding (collectively, Allegation 1).

(2) The PS alleges: (i) that Ms Sherrington dishonestly manipulated effective enrolment at Milingimbi School by targeting attendance during 'census' weeks; and (ii) that Ms Sherrington did not do so to improve educational outcomes for students (collectively, Allegation 2).

(3) The PS alleges that Ms Sherrington diverted and misapplied school funds away from educational resources and towards personal use, including extended travel to and accommodation in Darwin, motor vehicle hire for personal shopping, quality dining and fast-food purchases for herself, family members and friends (Allegation 3).

(4) The PS alleges that Ms Sherrington: (i) undertook unjustified or improper travel at Milingimbi School expense; and (ii) made excessive and unjustified use of charter flights in lieu of commercially available flights (collectively, Allegation 4).

(5) The PS alleges that Ms Sherrington failed to provide leadership and exhibited controlling behaviour in that the Milingimbi School council failed to have the required meetings for the 2018 and 2019 school years, and failed to maintain proper and accurate minutes (Allegation 5).

(6) The PS alleges that Ms Sherrington employed four immediate family members under conditions or in circumstances which were unfavourable to the Department of Education or the Milingimbi School Council (Allegation 6).

• [87] The statement: "as pleaded and particularised above..." which appears throughout the particulars of the Knowledge above refers back to a series of allegations contained in the paragraphs which immediately succeeded [50] of the SoC above.
• [88] First, as to [86](a) of those particulars (see at [84] above), under the heading "[Mr Fleming's] knowledge/indifference to truth" Ms Sherrington pleaded (at [52] of the SoC): "on the premises pleaded at paragraphs 53 to 64 herein, Mr Fleming knew the Serious Allegations were false or misleading, or alternatively was recklessly indifferent to their truth or accuracy".
• [89] In summary, the nominated paragraphs of the SoC ([53] to [64]) made a series of allegations that challenged the integrity of the joint investigation (described at [11] above) which led in turn to the production of the PS and the IR. They included the following:

(a) At [56] that Mr Fleming deliberately imposed "information restrictions" on Ms Sherrington to hamper her ability to respond to the Serious Allegations. Those restrictions were described earlier in the SoC (at [34]) in the following terms:

During the Joint Investigation, Ms Sherrington had limited access to documents or records sent, received or used by her as Principal of Milingimbi School staff (Information Restrictions).

(1) Ms Sherrington was unable to attend Milingimbi School to review physical records kept there by reason of the CE's Direction and subsequently by reason of her cessation of employment;

(2) Ms Sherrington was unable to contact any staff member of Milingimbi School to request records or information by reason of CE's Direction and subsequently by reason of her cessation of employment;

(3) Ms Sherrington did not have access to the Milingimbi School servers where records were stored electronically by Ms Sherrington and Milingimbi School staff;

(4) Ms Sherrington did not have access to the computer she used as Principal of Milingimbi School and to which she saved various records;

(5) Ms Sherrington did not have access to her personal drive she used as Principal of Milingimbi School and to which she saved various records;

(6) Before 6 October 2020, Ms Sherrington did not have access to the emails she sent and received on her government email account (work emails) for the periods relevant to the investigation;

(7) On 6 October Ms Sherrington was given a USB by ICAC staff containing her work emails for 2018 and from 2019;

(8) On 23 October 2020 Ms Sherrington requested access to her emails for January 2019 to August 2019;

(9) Ms Sherrington was not given access to her emails from January 2019 to August 2019.

(b) At [58] that Mr Fleming deliberately limited the information provided to Ms Sherrington prior to the examination hearings (described at [14] above) in order to create an "information asymmetry" which hindered her opportunity to conduct her own investigations or enquiries to inform her answers during those hearings.

(c) At [61] that Mr Fleming did not, in numerous respects, investigate, or adequately investigate, the "exculpatory factual matters" raised by her in response to the six Serious Allegations. Four pages of particulars were provided.

(d) At [62] and [63] that Mr Fleming deliberately did not provide her with "full and adequate particulars" of the Serious Allegations sufficient for her to understand and respond to them. Three and a half pages of particulars were provided.

(e) At [64] that Mr Fleming did not "articulate any basis" for reaching the conclusions that he did in the PS and IR with respect to the Serious Allegations.

[90] Secondly, as to [86](b) of those particulars (see at [84] above), under the heading "procedural unfairness" Ms Sherrington pleaded (at [65] to [74] of the SoC) that Mr Fleming had failed to provide procedural fairness to her:

(a) in deciding to publish the PS to the public at large without giving her advance notice thereof;

(b) in not giving her any adequate opportunity to respond to the adverse materials in the "notice of tentative findings" (described at [17] above); and

(c) in not including in the PS a "fair summary within the meaning of s 50 (2) of the ICAC Act" of her response to that notice.

[91] Thirdly as to [86](c), (d) and (e) of those particulars (see at [84] above), under the heading "public statement is unlawful" Ms Sherrington pleaded (at [75] to [79] of the SoC) that the publication of the PS was unlawful because:

(a) she was not afforded procedural fairness as detailed above (see at [90]); and/or

(b) it was "not issued for any purpose within the terms of s 55(2) of the ICAC Act"; and/or

(c) s 55 of the ICAC Act did not authorise a public statement to contain adverse findings about a person or body; and/or

(d) its publication was "an unreasonable exercise of power" under s 55(2) of the ICAC Act; and/or

(e) in publishing it, Mr Fleming failed to consider relevant considerations, namely her response to the serious allegations.

[92] In the succeeding section of the SoC under the heading "bad faith" Ms Sherrington set out a series of allegations that were said to comprise the allegations of bad faith for which leave was sought under s 155(4) of the ICAC Act. Curiously, none of those allegations alleged "bad faith", per se, on Mr Fleming's part but rather they claimed that he "did not act in good faith" in the following respects:

(a) At [89] under the heading "No real attempt to determine the truth of the allegations". This allegation relied on the first group of matters summarised above (at [88] and [89]) namely Mr Fleming's indifference to the truth of the Serious Allegations allegedly arising from his defective conduct of the joint investigation.

(b) At [90] under the heading "No real attempt to comply with the law". This allegation relied on the second and third group of matters summarised above (at [89] and [90]) namely Mr Fleming's alleged failures to afford her procedural fairness and his alleged breaches of various provisions of the ICAC Act. In the alternative it also relied on the following objective factors (at [91] to [94] of the SoC):

(i) Mr Fleming is a legal practitioner of considerable experience;

(ii) Mr Fleming knew the requirements of ss 50 and 55 of the ICAC Act;

(iii) Mr Fleming knew the requirements of procedural fairness;

(iv) Mr Fleming knew that public power must be exercised reasonably, for a proper purpose, and giving consideration to matters required by the Act under which the power is exercised;

(c) At [95] to [105] under the heading "Ulterior Motive". This allegation relied on a series of claims to the effect that her response to the notice of tentative findings was not properly considered, evaluated or investigated by Mr Fleming because: he demonstrated bias against her; he was motivated by "extraneous reasons of convenience and efficiency" and/or by "extraneous reasons of his own satisfaction and personal reputation".

The construction of ss 155(5) of the ICAC Act ‑- Grounds 1 and 3

• [93] The primary Judge began by considering the meaning of the expression "substantial reasons for believing" in s 155(5) of the ICAC Act[39]. His Honour's conclusions on that matter included the following:

(a) In the context of that section the word "substantial" means that the reasons advanced "are real reasons (as distinct from ephemeral or insubstantial reasons) to believe that a proposed defendant has acted in bad faith"[40].

(b) Whether such substantial reasons exist must be based upon evidence which is placed before the court[41].

(c) Allegations made in a statement of claim or similar document cannot, of themselves, establish such substantial reasons, nor can claims that supporting evidence may emerge at some future stage of a proceeding, e.g. during discovery, be taken into account[42].

(d) An applicant for leave does not have to establish bad faith to the standard required at a substantive hearing of the proceeding[43].

(e) The drawing of inferences will be dependent on whether the plaintiff and/or proposed defendant adduce evidence on the application which is directed to the issue of bad faith[44].

(f) Belief is different from suspicion, it "...is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture"[45].

• [94] His Honour then turned to consider the meaning of the expression "bad faith" in s 155(5)[46]. He began by reviewing in some detail the judgments of: White J in Campbell v Northern Territory[47], which dealt with the phrase "an act done or omitted to be done by the person in good faith" in the Youth Justice Act NT; the Full Court of the Federal Court in Mid Density Developments Pty Ltd v Rockdale Municipal Council (Mid Density)[48], which dealt with the phrase "anything done or omitted to be done in good faith" in s 582A of the Local Government Act NSW; and two High Court judgments which dealt with similar legislative provisions: Cannane v J Cannane Pty Ltd[49]; and Bankstown City Council v Alamdo Holdings Pty Ltd[50].
• [95] From his review of those decisions his Honour concluded that "the meaning to be given to the words "bad faith" (and their counterpart "good faith") in a statutory immunity provision such s 155 of the ICAC Act will depend on the nature of the act or omission alleged and the "elucidation of the purpose of the statute", particularly as pertains to the alleged acts or omissions"[51]. That led him to undertake a review of the provisions of the ICAC Act "to the extent that they may assist in elucidating the intended meaning of the phrases "good faith" and "bad faith" in s 155 of the ICAC Act".
• [96] After undertaking that review, his Honour came to a number of conclusions including the following[52]:

(a) Noting: that the ICAC Act has a single purpose to address wrongdoing in, or connected with, public administration; that the Commissioner is given a broad discretion as to how he or she achieves that purpose; that he or she is not subject to any ministerial or other direction; and that the Act does not still seek to strike a balance between the interests of persons the subject of investigation and the public interest but rather "falls heavily on the side of the public interest", it would be inconsistent with that statutory framework to give a broad meaning to the terms "good faith" and "bad faith" such as to make the Commissioner subject to a "judicially determined" or objective standard in the performance of his or her functions[53];

(b) It would be equally inconsistent with that statutory framework to adopt that broad meaning and thereby apply such a standard to the Commissioner's investigative and/or reporting functions under the ICAC Act, functions which are closely connected, because that "would permit a court to retrospectively determine what evidence was or was not significant and what conclusions should have been reached" in the exercise of those functions[54];

(c) Instead the terms "good faith" and "bad faith", as they apply to the Commissioner's investigative and reporting functions, should be construed to refer "to a purely subjective state of mind" on his or her part[55];

(d) the Commissioner will therefore be acting in good faith where he or she honestly believes that he or she is acting in accordance with the terms of the ICAC Act and will be acting in bad faith where he or she does not hold such an honest belief[56].

• [97] Having reached these conclusions his Honour decided that, in determining Ms Sherrington's application for leave under s 155, he was required to answer the following question: "are there real reasons (as opposed to ephemeral or insubstantial reasons) for believing that Mr Fleming did not honestly believe that he was acting in accordance with the ICAC Act at the time he did those things of which the applicant complains?"[57].

• [98] Ms Sherrington did not challenge any of the conclusions his Honour reached with respect to the expression "substantial reasons for believing". To the contrary she relied on some of them, namely those at [36] and [40] of the primary judgment. Her complaint under her third ground of appeal was that the primary Judge fell into error by applying "too onerous a standard of satisfaction of substantial reasons for believing". Instead, relying on the judgment in Secretary v Northern Territory of Australia[58], she contended that his Honour should have imposed a low "threshold for satisfaction" taking a "generous and favourable" approach "in which a broad view of the pleadings is adopted... and the available evidence is taken at its highest in the applicant's favour". She contended that this approach was consistent with the terms of s 155 of the ICAC Act for two reasons. First because that section applies "as a threshold to commence proceedings"; and secondly because, in this case, "it is concerned with the [proposed] defendant's own state of mind". She also contended that the words "real grounds to believe" (sic) resembled the phrase "reasonable cause to believe" which had been held to pose a low threshold test whereby it was not even necessary to demonstrate a prima facie case[59]. As well, she contended that, in this context, "little turns... on the precise verbal formula used by the statute"[60].
• [99] As for the construction of the expression "bad faith" raised by her first ground of appeal, Ms Sherrington contended that the construction that the primary Judge had adopted, namely to give a narrow meaning to that expression to advance the purposes of the ICAC Act and to avoid any "dampening effect" on the effectiveness of its operation, placed a gloss on the words of the statute and failed to have regard to the fact that it was an expression the meaning of which may vary from case to case. She claimed that his Honour's construction also disregarded the objective standard that had been established in Mid Density and required her to meet an "impossibly onerous threshold" of having to show that Mr Fleming lacked an honest belief that he was conducting an investigation under the ICAC Act. She contended that was particularly so: where ss 155(4) and (5) already provided adequate protection against any such dampening effect; where other similar public officeholders are held to objective account consistent with the maintenance of the rule of law; and where the construction applied to s 155(1) was inconsistent with the Commissioner's oath of office "which plainly requires more than mere honesty". She also contended that an objective standard was consistent with the objectives of the ICAC Act in that it would discourage "the objectively inept exercise of power in bad faith...".
• [100] As well, Ms Sherrington contended that the primary Judge should have taken account of the fact that this area of the law is "under development" and that process of development should not be dampened or stultified. Finally she contended that the primary Judge's interpretation collapsed the three ways in which "bad faith" was pleaded in her SoC into a single inquiry asking "whether or not Mr Fleming honestly believed that he was acting in accordance with the ICAC Act?" She identified those three ways as: that Mr Fleming made no real attempt to determine the truth of the Serious Allegations, that he made no real attempt to comply with the law and that he had an ulterior motive.

• [101] It is appropriate to begin by noting the trite proposition that the meaning of a statutory provision such as s 155(5) falls to be determined according to its text, context and purpose[61]. Turning first to purpose, consistent with its heading: "protection from liability - acting in official capacity", the evident purpose of s 155 of the ICAC Act is to provide certain protections from liability to those persons who act, or purportedly act, in an "official capacity" under the ICAC Act. That expression is defined in s 4 to mean "performing functions under, or otherwise related to the administration of, this Act".
• [102] As for context, the first of those protections is contained in s 155(1). That sub-section provides protection to such persons from civil or criminal liability for "an act done or omitted to be done in good faith". This protection is subject to the qualification expressed in s 155(2) that the liability of the Territory is not affected. That means the protection applies to the direct personal liability of the person concerned, but not to the Territory's vicarious liability for that act or omission. This marks an important distinction between a public officer demonstrating a lack of good faith under s 155(1) and acting in bad faith under s 155(5) because, at least with the tort of misfeasance in public office, liability with respect to the latter usually only involves the public officer concerned[62].
• [103] There is also a significant difference between the protection provided to a public official by s 155(1) and that provided by s 155(4). The latter does not provide protection from liability, as such, but rather places a restriction on the pursuit of an allegation in a civil or criminal proceeding that a person, when acting in an official capacity, has "acted in bad faith". Its apparent protective purpose therefore is to protect such persons from un-meritorious allegations of bad faith when they are acting in an official capacity under the Act. The pursuit of spurious allegations to frustrate investigations under the ICAC Act, or as a means of revenge by a disgruntled person the subject of findings of corruption made under that Act, might be considered two situations that warrant such protection[63].
• [104] The means by which the peculiar form of protection is provided under ss 155(4) and (5) is contained in the text of those provisions. Dealing first with the text of s 155(4), it operates if a person "is alleged to have acted in bad faith". In that event, it provides that a proceeding for "the act", namely the act done in bad faith, "may only be brought by leave". It is not, therefore, specifically expressed to apply to the commencement of proceedings, or to a claim made, or to be made, in a proceeding. Furthermore, as with s 155(1), it is expressed to apply to both civil and criminal proceedings. This feature of the section means that different rules of procedure will apply depending on what form of proceeding is involved[64].
• [105] With this combination of factors reflected in its text, the timing of an application for leave under s 155(4) to bring a proceeding for an act in bad faith may differ depending on what particular set of litigious circumstances are pertinent to the application and when that combination of circumstances aligns. For example, it is not difficult to envisage a situation whereby evidence of bad faith may emerge during the discovery process in a civil proceeding, or during either the committal, or trial, stage of a criminal proceeding. In either of these instances the application for leave to bring the proceeding for the allegation of bad faith would arise at a later stage of an already existing proceeding. On the other hand, where, as here, the allegation concerns an act of bad faith which is critical to a claim for damages for the tort of misfeasance in public office, the position will be different. That set of circumstances would ordinarily dictate that the application for leave to bring the proceeding with respect to the allegation will be made at the outset of the civil proceeding concerned. It follows, in my view, that the word "brought" in s 155(4) must be construed sufficiently broadly to accommodate this range of circumstances. Accordingly, Ms Sherrington's contentions that s 155(4) invariably applies at the threshold or commencement of a proceeding must be rejected.
• [106] While the text of s 155(4) affects the timing of an application for leave, it is the text of s 155(5) that prescribes the means by which the protection concerned is offered to a person acting in an official capacity under the ICAC Act. First, that sub-section begins with a direction to the Court not to grant leave unless it is satisfied that a specific state of affairs exists. That is that there are "substantial reasons for believing" that the person concerned committed the act of bad faith. Those words therefore set the standard or test to be applied by the Court in deciding whether or not to grant leave.
• [107] The primary Judge identified correctly, with respect, the critical components of that test. As appears earlier[65], his Honour found that the reasons that are pivotal to the test must be substantial, that is real, as distinct from ephemeral or insubstantial, and they must incline the Judge hearing an application for leave towards "assenting to rather than rejecting" the proposition that the prospective defendant acted in bad faith, while accepting that some aspects of that proposition may be left open to surmise or conjecture.
• [108] Since this is the test that emerges from the text of s 155(5), there is no merit in Ms Sherrington's contention that some other "generous and favourable" test should be adopted when considering a leave application under ss 155(4) and (5). That includes a test or standard drawn from supposedly analogous applications in civil proceedings, or from the judicial treatment of allegedly similar statutory provisions or, even less so, by reference to the circumstances of the particular application in question.
• [109] The former situations include the entirely different circumstances and statutory terminology under consideration in an application for the summary determination of civil proceedings such as Spencer[66], or in a preliminary discovery application prior to the commencement of civil proceedings as in Rush[67]. They also include the provisions of the Police Administration Act (NT) considered in Secretary which do not bear any relevant similarity in context or text to the present statutory formulation. That judgment concerned an application for leave to claim punitive damages in a "police tort claim" under s 148F(2) of the Police Administration Act (NT) which provision did not prescribe any test for granting leave. The error inherent in the last proposition is so obvious that it barely needs stating. If adopted, it would mean that the construction of s 155(5) would vary depending on the circumstances of the particular party making the application for leave.
• [110] It follows that no error is revealed by Ms Sherrington's third ground of appeal.

1. Turning next to the expression "bad faith" in s 155(5). In the particular circumstances of this matter, Ms Sherrington accepts that the only way she can obtain the damages relief she has sought in her SoC is to establish that Mr Fleming committed the tort of misfeasance in public office. This concession was well made. It reflects the established legal position that a person cannot obtain damages for a breach of statutory duty (unless it is confirmed by legislation)[68], nor for negligent licensing, supervision, or failure to withdraw a licence or for negligent maladministration. Instead, the remedy lies with judicial review[69].

• [112] In Three Rivers District Council v Governor and Company of the Bank of England (Three Rivers DC) Lord Steyn identified the rationale for the tort of misfeasance in public office in the following terms: "... In a legal system based on the rule of law executive or administrative power "may be exercised only for the public good" and not for the ulterior and improper purposes..."[70].
• [113] In Northern Territory v Mengel[71] the plurality held that the tort of misfeasance in public office was "... a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power."[72] As to the tort's content, their Honours said it was not "constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage". Instead, "policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be born in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm". Their Honours added that "there is much to be said for the view that... misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power"[73].
• [114] Importantly, for present purposes, their Honours also held that constructive knowledge of the lack of power is not sufficient to establish the tort. Noting that public officials are liable in negligence in the same way as ordinary individuals, they said: "...In that context, the argument that misfeasance in public office should be reformulated to cover the case of a public officer who ought to know of his or her lack of power can be disposed of shortly. So far as unintended harm is concerned, the proposed reformulation suffers the same defect as in relation to the law of negligence as does the principal in Beaudesert namely, it serves no useful purpose if there is a duty of care to avoid the risk in question and is anomalous if there is not. And it serves no purpose if the public officer is actuated by intention to harm the plaintiff for that constitutes misfeasance in public office whether or not the officer knows that he or she lacks authority"[74].
• [115] In his judgment in Mengel, Brennan J said that a particular state of mind was necessary to render liable under the tort an invalid exercise of administrative power, for example, arising from a failure to afford procedural fairness[75]. After reviewing a number of English authorities his Honour concluded that: "Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete". His Honour said that these states of mind involved a public officer acting "otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff"[76].
• [116] Finally, in his judgment in Mengel, Deane J said that the critical element of the tort in that case was malice. His Honour identified three circumstances where such malice will arise: "[It] will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury". He added: "Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied"[77].
• [117] The High Court confirmed these principles in Sanders v Snell[78] where the majority, whilst acknowledging that the precise limits of the tort were still undefined, described it as "an intentional tort"[79]. It returned to the issue in Commissioner of Taxation v Futuris Corporation Limited[80]. In the course of dealing with the validity of an assessment made under the Income Tax Assessment Act (Cwth), in particular whether it involved a bona fide exercise of the power to assess, the majority said[81]:

...That phrase is used in several senses in public law. With cognate expressions, it also appears in formulations of the tort of misfeasance in public office. This Court has accepted that in that context it is sufficient that the public officer concerned acted knowingly in excess of his or her power. The House of Lords has since indicated that in English law recklessness may be a sufficient state of mind to found the tort. The affinity between tort law and public law has been remarked upon in this Court; that affinity reflects the precept that in a legal system such as that maintained by the Constitution executive or administrative power is not to be exercised for ulterior or improper purposes.

• [118] Also pertinent for present purposes are the following observations that their Honours made later in their judgment[82]:

Allegations that statutory powers have been exercised corruptly or with deliberate disregard to the scope of those powers are not lightly to be made or upheld. Remarks by Hill, Dowsett and Hely JJ in Kordan Pty Ltd v Federal Commissioner of Taxation are in point. Their Honours said:

"The allegation that the Commissioner, or those exercising his powers by delegation, acted other than in good faith in assessing a taxpayer to income tax is a serious allegation and not one lightly to be made. It is, thus, not particularly surprising that applications directed at setting aside assessments on the basis of absence of good faith have generally been unsuccessful. Indeed one would hope that this was and would continue to be the case. As Hill J said in San Remo Macaroni Company Pty Ltd v FCT[ ] it would be a rare case where a taxpayer will succeed in showing that an assessment has in the relevant sense been made in bad faith and should for that reason be set aside."

The outcome on the present appeal bears out the quoted observation by Hill J[83].

• [119] In Three Rivers DC[84] Lord Steyn described two of the forms of the tort as "targeted malice"; and a public officer acting "knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff"[85]. While these comprised two different forms of liability, his Lordship said that they "revealed the unifying element of conduct amounting to abuse of power accompanied by subjective bad faith" (emphasis added) and that there was "the need to establish deliberate and dishonest abuse of power in every case"[86].
• [120] Finally, while they were directed to an action in deceit rather than one for misfeasance in public office, the following observations of the plurality in Banditt v R[87] are pertinent in respect of the recklessness form of the tort: "When "reckless" is used in applying the principles of the tort of negligence, the yardstick is objective rather than subjective. On the other hand, to sustain an action in deceit, fraud is proved when it is shown "that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false"[88].
• [121] From these authorities a number of things are clearly established with respect to the tort of misfeasance in public office as they bear on this appeal. First, it is an intentional tort which is concerned with the dishonest use of public power. Secondly, it relies for its existence on establishing the subjective state of mind of the public officer concerned whether that be malicious intent, or acting with knowledge of an absence of power or recklessly disregarding the means of ascertaining the extent of his or her power knowing that to so act is likely to cause damage to the plaintiff. Thirdly, each of these states of mind is characterised as "bad faith". Fourthly, and consequently, the requisite state of mind cannot be established objectively, nor can the tort be committed through a public officer's honest ineptitude.
• [122] As appears earlier[89], the primary Judge came to essentially the same conclusions as the second and fourth propositions above, albeit by a different process of reasoning. It follows that no error is revealed by Ms Sherrington's first ground of appeal.

The proper consideration of Ms Sherrington's case - Ground 2

• [123] Under this ground of appeal Ms Sherrington claims that the primary Judge failed to properly consider her case. While the conclusion reached in relation to ground 3 above with respect to the correct test applicable to her application, largely disposes of this ground, it is convenient to briefly identify several other reasons why it also lacks merit.
• [124] The first relates to the type of bad faith with which Ms Sherrington's case must necessarily be concerned, namely the bad faith which underpins the tort of misfeasance in public office[90]. The authorities reviewed above show that that type of bad faith can be manifested in one of three forms: malicious intent or targeted malice; acting with knowledge that one lacks power; or recklessly disregarding the means of ascertaining the extent of one's power, these latter two forms combined with knowledge that so acting will probably injure or harm the plaintiff. Unsurprisingly, therefore, Ms Sherrington has pleaded each of those forms of bad faith in her SoC[91].
• [125] However, despite this, she did not engage with that type of bad faith before the primary Judge. Instead she attempted to persuade his Honour that Mr Fleming had demonstrated a lack of good faith as pleaded elsewhere in her SoC under the headings: No real attempt to determine the truth of the allegations; No real attempt to comply with the law; and Ulterior motive[92]. The primary Judge considered and rejected each of these sets of allegations in the primary judgment[93].
• [126] This approach was erroneous in several respects. The first and most fundamental has been mentioned already. It is that Ms Sherrington has not engaged with the relevant form of bad faith necessary to support her claim for damages based, as it is, on the tort of misfeasance in public office.
• [127] The second is that the form of bad faith upon which she has instead focused is primarily directed to alleged deficiencies in the conduct of the joint investigation. The primary Judge identified this feature of her case in the primary judgment where he said "the applicant's complaint is one regarding the sufficiency of the investigation undertaken ..."[94]. A fundamental problem with this approach is that the pleaded cause of her damages was Mr Fleming's promotion and publication of the PS, not the conduct of the joint investigation[95].
• [128] Another is that the joint investigation was, as its title suggests, jointly conducted by Mr Fleming and the Department of Education[96]. Furthermore, the hearings which comprised a critical part of the investigation were conducted by the Deputy Commissioner, Mr Wild QC, not Mr Fleming. Despite this mixing of roles, no attempt has been made by Ms Sherrington in her SoC, or otherwise in presenting her case, to distinguish the involvement of these other actors. Indeed she contended before the primary Judge that she did not have to do so[97]. Given that she is attempting to pursue an allegation of bad faith against Mr Fleming personally, I consider this reflects a significant deficiency in her application for leave.
• [129] Still another is that, even assuming one were to ignore the thinly veiled attempt at merits review of the joint investigation that this approach entails, the PS contains a number of statements that show that Ms Sherrington's complaints about its deficiency are spurious. Two examples will suffice. First, at the commencement of the PS under the heading "Assessment of Evidence" the following statements appear[98]:

I have followed carefully all of the evidence in this investigation, and any response from each and every person and body against whom adverse findings have been made in this report, including unsworn responses.

In assessing the weight of any evidence, I have taken into account:

. my observation of the various witnesses examined in the course of the matter

. contemporary records such as emails and phone messages

Where I have doubted the veracity of evidence I have sought assistance from contemporary records to resolve doubts. (emphasis added)

• [130] Secondly, and more strikingly, in response to Ms Sherrington's claim that she "had a cogent and exculpatory explanation for each and every allegation" made against her, the PS records[99]:

Ms Sherrington gave evidence on five days, the two components of which were separated by two months. She was given the opportunity to present additional material and written submissions during that interval, and on a day to day basis during her examination. She availed herself of those opportunities and consideration was, and has, been given to that material, and the further material contained in her response to the draft report.

At all times great care was taken to consider each of the matters raised by Ms Sherrington, just as great care has been given to consider the entirety of the response provided by her and/or on her behalf.

The difficulty for Ms Sherrington is that in carefully weighing her explanations against the weight of the evidence, her denials simply cannot be believed. (emphasis added)

It is important to make clear to Ms Sherrington, and any person who may read this report or appear before the ICAC, that each and every piece of evidence before the ICAC in this investigation has been carefully considered**. Ms Sherrington's contention that her explanations were "cogent and exculpatory" is fanciful. Much of her evidence provided no such explanation and in fact was not believable and therefore not accepted.** (emphasis added)

• [131] Finally, in the interests of completeness, it is appropriate to briefly explain why, even had Ms Sherrington engaged with the relevant type of bad faith pleaded in her SoC[101], she would have failed in her application for leave. First it is convenient to reiterate the test that Ms Sherrington would have had to meet to obtain that leave. That is to persuade the Court that there are substantial reasons to assent to, rather than reject, the proposition that Mr Fleming held the subjective state of mind that constituted one or more of the forms of bad faith which underpins the tort of misfeasance in public office.
• [132] Next it is appropriate to recall the context in which the PS came to be published. It followed an investigation conducted under the auspices of the ICAC Act, the purpose and focus of which were identified earlier[102] and it was published in exercise of Mr Fleming's discretionary power as the Commissioner contained and in s 55(2) of that Act.
• [133] In that context, and applying the test set out above, none of the matters particularised at [84] of Ms Sherrington's SoC[103] provides the requisite reason. Anonymising names - a common practice when Courts, Tribunals and other public bodies publish decisions or similar documents (particular 1), making gratuitous allegations (even assuming they were gratuitous) about Ms Sherrington's family members - not Ms Sherrington (particular 2), or failing to name or investigate others (particulars 3 and 4), do not provide substantial reasons to believe that Mr Fleming was maliciously targeting Ms Sherrington when he published the PS.
• [134] Nor does using the following so-called "florid" language (particular 6): "Ms Sherrington was not in the business of education; she was in the business of manipulating data and herding children to be at school on "census days" to maintain funding from both the NT and Australian governments." That is so because that single sentence appears in a report comprising 51 pages and containing 169 paragraphs, 16 separate recommendations and one appendix. And, more importantly, there is no evidence that Mr Fleming drew attention to it in the course of publishing and disseminating the PS with a view to damaging Ms Sherrington, or at all. It follows that particulars 6 to 8 inclusive do not provide substantial reasons to believe that Mr Fleming maliciously targeted Ms Sherrington when he published and disseminated the PS.
• [135] The same applies to the matters particularised at [86] of her SoC. They are ostensibly provided in support of the allegations at [85] and [86] of the SoC[104] that Mr Fleming published the PS when he knew he had no power to do so and he knew that would likely cause injury or harm to Ms Sherrington, or alternatively, that he was recklessly indifferent to whether or not he had that power. That is so because [85](a) of Ms Sherrington's SoC concerns the substance of the serious allegations to which the joint investigation related; (b) and (e) concern due process matters connected with the conduct of the joint investigation; and (c) and (d) concern the proper construction of s 55(2) of the ICAC Act. In other words, ignoring the fact that most of them are directed to the conduct of the joint investigation and not to the publication of the PS, and even assuming that one or more of them constitutes a valid complaint, they all amount to no more than "an act of a public officer which he or she knows is beyond power and which results in damage"[105]. It follows that they do not provide substantial reasons to believe that Mr Fleming had the requisite state of mind which underpins those two forms of the tort of misfeasance in public office, when he published and disseminated the PS.
• [136] For these reasons, Ms Sherrington's application for leave to pursue an allegation, or allegations, of bad faith against Mr Fleming must fail. The primary Judge came to the same conclusion albeit by a different approach[106]. Accordingly, no error is revealed by Ms Sherrington's second ground of appeal.

• [137] For all these reasons, none of Ms Sherrington's grounds of appeal discloses an appellable error in the primary judgment. It follows that her appeal must be dismissed.

1. That this proceeding be amended to remove the first defendant as a party.
2. That the notice of appeal dated 20 February 2023 be dismissed.

We would hear the appellant on whether she should not be ordered to pay the costs of this appeal and the costs of her application for leave to appeal.

[1] The appellant had already commenced proceedings and filed a statement of claim.

[2] This summary is taken from the appellant's submissions.

[3] Sherrington v Independent Commissioner Against Corruption (NT) & Ors [2022] NTSC 67 ("Sherrington NTSC") at [4] to [15]

[4] In the Supreme Court, the first respondent argued that it was inappropriate to bring proceedings against Mr Fleming personally, as the bulk of the conduct complained of had been carried out by Mr Wild. This is still a live issue between the parties but is not relevant for the purposes of the present appeal.

[6] This is said to have been the effect of Sherrington NTSC at [70] - [72]

[7] This is said to be the effect of Sherrington NTSC at [74] - [75]

[8] Sherrington NTSC at [74] - [75]

[9] [1993] FCA 408; (1993) 44 FCR 290 at 298-300

[10] followed in Campbell v NTA (No 3) [2021] FCA 1089 at [831]; cited with approval by the High Court in Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 660 at [50].

[12] Sherrington NTSC at [56] - [57]

[13] Sherrington NTSC at [58] - [69]; The appellant has identified no error in this careful analysis.

[14] See summary of appellant's claims at [24] above.

[17] Sherrington NTSC at [79] - [81]

[19] [2017] FCAFC 59; (2017) 248 FCR 311

[20] [2019] NTSC 73 ("Secretary") at [38]

[22] Secretary at [38] and [43]

[23] See generally, O'Shea v Northern Territory of Australia [2018] NTSC 73; Gaykamangu v Northern Territory [2016] NTSC 26.

[25] Appellant's written submissions [79]

[29] Appellant's submissions [85](a)

[32] Appellant's submissions [85](2)

[34] Sherrington NTSC at [84] - [91]

[37] See Sherrington v Fleming & Ors [2023] NTCA 1.

[38] See at [9] to [23] above. See also the primary judgment Sherrington NTSC at [5] to [15].

[39] Sherrington NTSC at [25] to [43].

[45] Sherrington NTSC at [42] to [43] quoting the Court in George v Rocket [1990] HCA 26; (1990) 170 CLR 104 at 116.

[47] [2021] FCA 1089.

[48] [1993] FCA 408; (1993) 44 FCR 290.

[49] Cannane v J Cannane Pty Ltd (1998) 193 CLR 557.

[50] Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 660.

[52] Sherrington NTSC at [70] to [75].

[58] Secretary v Northern Territory of Australia (Secretary) [2019] NTSC 73.

[59] Referring to Rush v Commissioner of Police (Rush) [2006] FCA 12; (2006) 150 FCR 165 per Finn J.

[60] Relying on the judgment of French CJ and Gummow J in Spencer v Commonwealth (Spencer) (2010) HCA 28; (2010) 241 CLR 118.

[61] See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].

[62] See the observations of the plurality in Mengel v Northern Territory set out at [113] below.

[63] These differences explain why demonstrating a lack of good faith under s 155(1) and acting in bad faith under s 155(4), at least in the context of misfeasance in public office claims, involve quite different concepts and principles. It is not therefore valid, in my view, to treat one as the converse of the other.

[64] See the observations of Nettle J in Construction, Forestry, Mining & Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 at [66] to [68].

[66] Involving an application under s 31A of the Federal Court of Australia Act directed to showing that a party had "no reasonable prospect of prosecuting the proceeding": see Spencer at [17].

[67] Involving an application under O 15A of the former Federal Court Rules directed to showing that there is "reasonable cause to believe" that an applicant "has or may have a right to obtain relief" and/or that a person is likely to possess any document relating to that question: see Rush at [4].

[68] See Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 at 58 at [157] per Gummow J.

1. [69] See Three Rivers DC v Bank of England [2003] 2 AC 1 at 190 per Lord Steyn.

[70] Ibid at 190. See also Federal Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 147 at 153 at [11] per Gummow, Hayne, Heydon and Crennan JJ set out at [117] below.

[72] (1995) 185 CLR 307 at 345 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ.

[77] (1995) 185 CLR 307 at 370 to 371.

[78] (1998) 196 CLR 329.

[79] Ibid at 346 [42] per Gleeson CJ, Gaudron, Kirby and Hayne JJ. With respect to the elements and forms of the tort see also discussion in the subsequent Full Court decision in Sanders v Snell [2003] FCAFC 150; (2003) 130 FCR 149 at 171 to 178, [87] to [108] per Black CJ and French and Von Doussa JJs, and more recently in Nyoni v Shire of Kellerberrin [2017] FCAFC 59; (2017) 248 FCR 311 at 327 to 329, [76] to [84] per North and Rares JJ, and also the single judge decisions in Brett Cattle Co v Minister for Agriculture [2020] FCA 732; (2020) 274 FCR 337 at 403 to 407, [269] to [284] per Rares J and Plaintiff M83A v Morrison (No 2) [2020] FCA 1198 at [58] to [66] per Mortimer J (cited in the primary judgment at [23]).

[80] (2008) 237 CLR 147.

[81] Ibid at 153 to 154 [11] per Gummow, Hayne, Heydon and Crennan JJ.

[82] (2008) 237 CLR 147 at 165 to 166 [60] to [61].

[83] See also the observations of the Full Court of the Federal Court in Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 at 28 to 29 [128] to [130] per Gray, Rares and Tracey JJ.

[86] Ibid at 191 and 192. See also Lord Hobhouse's description of the three types of malice involved as "targeted malice", "[intentional] untargeted malice", and "reckless untargeted malice" at 230 to 231

[87] Banditt v R [2005] HCA 80; (2005) 224 CLR 262.

[88] Ibid at 265 [2] per Gummow, Hayne and Heydon JJ.

[90] See the concession mentioned at [110] to [111] above.

[91] At [83] to [86] of the SoC, see at [83] to [85] above.

[92] At [88] to [105] of her SoC, see at [92] above.

[93] Sherrington NTSC at [78] to [104]; [103] to [115]; and [116] to [124] respectively.

[95] See at [83] of her SoC at [84] above.

[97] See Sherrington NTSC at [17] to [21].

[98] Public statement at [24] to [26].

[99] Public statement at [127] to [129].

[100] Public statement at [149].

[102] See the apposite part of the primary judgment set out at [96](a) above.

[104] See at [83] and [85] above.

[105] See the plurality in Mengel at [113] above.