Tsirekas v Independent Commission Against Corruption

Supreme Court of NSW|2024-11-13|Before: Hulme AJ, John Hatzistergos AM

Solicitors: Turner Freeman Lawyers (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2023/453173

JUDGMENT

HIS HONOUR: On 9 November 2023 the Independent Commission Against Corruption presented to the New South Wales Parliament its "Report on the Investigation into the Conduct of the City of Canada Bay Council Mayor and Others". The Report was a culmination of an investigation carried out by the Commission under "Operation Tolosa" with findings that included that Mayor Angelo Tsirekas (the plaintiff) had engaged in serious corrupt conduct.

Relevant provisions of the Independent Commission Against Corruption Act

The Independent Commission Against Corruption consists of a Chief Commissioner and two other Commissioners, [1] all of whom are defined in s 3(1) of the Act as "Commissioners".
Section 6(1) provides that "the functions of the Commission are exercisable by a Commissioner and any act, matter or thing done in the name of, or on behalf of, the Commission by a Commissioner is taken to have been done by the Commission". Exceptions to this are provided in sub-ss (2)-(7), none of which are presently relevant.
Section 6A allows for the appointment of Assistant Commissioners to assist the Commission as required by the Chief Commissioner. They are not included in the definition of "Commissioners". There was no involvement of an Assistant Commissioner in the present matter.
Section 74 is concerned with the preparation of reports by the Commission. It may prepare a report in relation to any matter that has been or is the subject of an investigation (s 74(1)). Section 74(3) provides that "The Commission shall prepare reports in relation to matters as to which the Commission has conducted a public inquiry", unless Parliament has given a different direction under s 74(2).
Section 74A relates to the "contents of reports to Parliament". By s 74A(1) the Commission is authorised to include in a report under s 74, "(a) statements as to any of its findings, opinions and recommendations, and (b) statements as to the Commission's reasons for any of its findings, opinions and recommendations".
By s 107(1) certain matters may be delegated to an Assistant Commissioner or an officer of the Commission. Section 107(4) provides a list of functions which may not be delegated. They include, "(b) a function of making a report under this Act".
Schedule 1 contains provisions concerning the appointment, remuneration and tenure of the Chief Commissioner, Commissioners and Assistant Commissioners. By cl 5, the maximum term(s) of office of a Commissioner (which includes the Chief Commissioner) or an Assistant Commissioner is five years.

Apprehended bias principles

Grounds 1 and 2 raise issues concerning apprehended bias. There is apprehended bias "if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. See also Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31].
The written submissions for the defendant included the following summary of the relevant principles: 14. The relevant principles in respect of apprehended bias are as follows. First as Kiefel CJ and Gageler J recently stated in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419 at [37], the criterion for the determination of an apprehension of bias is: whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The "double might' serves to emphasise that the criterion is concerned with 'possibility (real and not remote), not probability". 15. In Director of Public Prosecutions v Smith [2024] HCA 32 at [92], the majority (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) explained that applying this criterion requires: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer. 16. Second, it is important to note that the bias rule is subject to waiver. [2] As was explained in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [76]: It is well established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias. ... If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection. 17. "Courts have long accepted that it is 'wrong and unfair' to allow parties to essentially keep a bias claim up their sleeve." [3] If a party is "aware of the circumstances constituting a ground for objection on the basis of apprehended bias", by standing by and not taking an objection at the time, "it will likely be held that such a party has waived the right subsequently to object". [4]
The written submissions for the plaintiff were also helpful in their reference to relevant principles. They referred to Duncan v Ipp [2013] NSWCA 189 for confirmation that the principles sourced in Ebner v Official Trustee in Bankruptcy and Michael Wilson & Partners Ltd v Nicholls apply to an ICAC Commissioner. [5]
The submissions also noted [6] the following in the joint judgment of Kiefel CJ and Gageler J in QYFM v Minister for Immigration [7] at [45]: The pivotal stage in the analysis on this strand of the appellant's argument lies in the assessment of the reasonableness, in the circumstances of the case, of an apprehension of that kind from the perspective of a fair-minded lay observer. In undertaking that assessment, "it is the court's view of the public's view, not the court's own view, which is determinative". The hypothetical fair-minded lay observer is a deliberate and necessary construct which tethers the court's analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system. The construct provides the "standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system". [Footnotes omitted]
The plaintiff submitted [8] that of "particular importance to the analysis" of the three steps referred to in Director of Public Prosecutions v Smith [2024] HCA 32 at [92] was the description by Edelman J in QYFM v Minister for Immigration of the "double might" test being "relatively undemanding once sufficient facts exist to raise the possibility of actual bias or apprehended bias".

Judicial review of a report of the ICAC

The written submissions of the defendant take issue with the form of relief sought in Grounds 1 and 2 of the summons. It contends that relief is not available for errors of law "on the face of the record" because this is not a proceeding in which relief by way of certiorari is relevant. It was submitted that: [9] an order in the nature of certiorari is not available against a report of the Commission because such a report has no legal effect or consequences, nor is it a precondition to a process having such effects or consequences.
The defendant does, however, accept that if jurisdictional error is established in respect of the substance of what is alleged in these two grounds then declaratory relief would be available. [10]
The plaintiff appears to take issue with the first point but, noting the defendant's acceptance of declaratory relief being available, is content to move on without engaging in an unnecessary debate. [11] This is practical and sensible.

Factual background

The plaintiff became an elected councillor in 1995 and was the mayor of the City of Canada Bay Council from 2002 to 2016 and 2017 to 2023. [12]
An investigation was commenced by the Commission after receiving a verbal complaint in August 2017 that the plaintiff had not disclosed his personal relationship with Joseph Chidiac who acted on behalf of property development entities. A preliminary investigation commenced on 27 October 2017 and became more extensive on 4 May 2018. [13]
The plaintiff was summoned to give evidence at private compulsory examinations for Operation Tolosa on 24 March and 7 April 2022 and at public hearings on seven days between 31 May and 17 June 2022. The public hearings, which were presided over by Chief Commissioner Hall, concluded on 4 July 2022. His tenure as Chief Commissioner expired on 6 August 2022 and he was not involved thereafter in Operation Tolosa. The Hon John Hatzistergos AM became Chief Commissioner on 7 August 2022. [14]
Written submissions by counsel assisting the Commission were provided on 16 August 2022. They included: [15] Mr Tsirekas is a witness whose evidence should not be accepted unless corroborated by independent and objective evidence or was otherwise against his interest. There are numerous matters that demonstrate Mr Tsirekas' lack of credit including that … [five examples were given].
Written submissions by the plaintiff were made on 26 September 2022. They included a lengthy response to the five examples. It was repeatedly submitted that no adverse finding as to his credit should be made. [16]
Relevant to the plaintiff's case on the issue of his credit was a psychiatric report provided to the Commission on 31 January 2023 in support of a contention that the impugned manner in which the plaintiff gave evidence was attributable to causes other than a lack of credit. Written submissions were made, dated 6 March 2023, at the invitation of the Commission. They included: [17] To the extent that Mr Tsirekas' evidence was characterised by Counsel Assisting as "non-responsive" and/or "dissembled", the expert evidence supports Mr Tsirekas' submission that it is very likely that Mr Tsirekas experienced impairment in mental performance, in particular memory function, when providing such evidence as a consequence of the prescribed medication he was taking. Accordingly, to the extent that any evidence given by Mr Tsirekas is considered to be "non-responsive" and/or "dissembled", the medication is very likely the cause.
In its ultimate report, the Commission dealt with the psychiatric report and the submissions on their merits. [18] (See below at [65].)
Further written submissions were made by counsel assisting the Commission on 15 May 2023. [19] They concerned matters not presently relevant.
On 18 May 2023 Ms Emma Hall, the daughter of Mr Hall, sent an email to the plaintiff, copying in other members of the Canada Bay Council. The "Subject" was "Lindsay Nylund - FDLC Gymnastics Club". The body of the email stated (with emphasis in the original): Dear Mr Tsirekas, I refer to the recent dismissal of Lindsay Nylund, head gymnastics coach at Five Dock Leisure Centre (FDLC). The claims of dismissal on the grounds of any inappropriate behaviour are untrue and-unfounded and we believe as parents of gymnastics club members, Mr Nylund's removal as head coach is purely down to cost-cutting. It's great that you, ostensibly, care about your community as Mayor of Canada Bay and I quote your claim from a recent article in the Greek Herald regarding your self-reinstatement of mayor after a leave of absence during the recent ICAC investigation, Operation Tolosa: "I'm pleased to return to my role in serving the community of Canada Bay as I have done for more than two decades as a councillor and 18 years as mayor," he said. "I was recently re-elected by popular vote as the mayor and the community will decide if they want me to continue to represent them and the interests of the area as a whole." We love that you want to support your constituents and community - so why are you allowing Five Dock Leisure Centre gymnastics club to incur cut-backs? I'm sure you remember Mr Peter Hall QC, the former Chief Commissioner of ICAC? His granddaughter is a competitive gymnast at Five Dock Leisure Centre so we have had - and continue to have - a very keen interest in what goes on at Canada Bay Council and FDLC. I assure you that the parents there are not happy that we are spending a lot of money each week and the club is now being deprived of funding and its offerings and to our children. Perhaps some of the kickbacks you and your 'friends' Mr Chidiac, Mr Bruzzano, Mr Furlong and My Sawyer, received recently (not to mention many more associated with Canada Bay Council who profited from property deals and developments) could be donated back to this club. Not only do the children miss out on the sporting opportunities they love, but they are devastated about Lindsay being removed as head coach. And finally, these unfounded accusations against Mr Nylund are unfair and untrue: he does not deserve to have his reputation tarnished. Please reinstate Lindsay immediately - he wants to make FDLC gymnastics club a thriving, proud and successful one. Yours sincerely, Emma Hall
The plaintiff made further written submissions on 19 June 2023, responding to those of counsel assisting of 15 May 2023. [20] They included further reference to the psychiatric report and reiterated some submissions made in relation to his credit. [21] No reference was made to the email from Ms Hall.
On 4 September 2023 the plaintiff wrote to the Inspector of the ICAC, Ms Gail Furness SC, complaining of bias in the conduct of the public hearings and attaching the email from Ms Hall. He wrote (emphasis in the original): Dear Ms Furness, I refer to my inquiry currently before the Independent Commission Against Corruption (Operation Tolosa) and feel compelled to bring the following issue to your attention. In May 2023 in my role as Mayor of the City of Canada Bay I had the misfortune of receiving an email from a close family relation of Commissioner Hall. This email was unsolicited and alarmingly copied to all City of Canada Bay Councillors, of which there are eight. Please find a redacted copy of the email attached. I will let you draw your own conclusion but surely this conduct is unbecoming and highly inappropriate. Why is Operation Tolosa seemingly being discussed freely and shared widely by the Commissioner's family prior to any resolution of this Inquiry? For your information, I referred the email to Council's Acting General Manager to investigate the matter as staffing issues relating to a Council run service are not the responsibility of the elected body. This email from the Commissioner's close family member only confirms and heightens my view of the bias I have experienced under Commissioner Hall. Nearly two years after evidence was concluded he is still trying to work out how to reach an unfavorable [sic] finding against me. As Inspector of the ICAC I ask you to investigate this serious issue, and any possible breach of the Commissioner's function. Yours sincerely, ANGELO TSIREKAS
It is useful to observe at this point that both parties referred to the statutory independence of the Inspector vis-à-vis the ICAC. [22] Section 57B(3) of the Act provides that the "Inspector is not subject to the Commission in any respect".
On 6 November 2023 the Commission informed the plaintiff's legal representatives that its report in relation to Operation Tolosa was to be furnished to Parliament at 11am on 9 November 2023. [23]
On 8 November 2023 the ICAC Inspector replied to the plaintiff. [24] She told him she had sought and obtained responses from Mr Hall and Ms Hall. She observed that Operation Tolosa had not been completed at the time of writing. She had received from the Commission copies of closing submissions made by counsel assisting and the submissions made by the plaintiff of 26 September 2022, 6 March 2023 and 19 June 2023.
The following summarises the response of Mr Hall as partly summarised and partly quoted in the Inspector's letter: He had no knowledge of the email sent by Ms Hall until he received a copy from the Inspector. When he left his position, Operation Tolosa was not finished and counsel assisting was yet to make submissions. No findings of fact or of corrupt conduct had been made by the Commissioner, or more particularly by Mr Hall. Since leaving his position Mr Hall had not been privy to or had received any information concerning Operation Tolosa. He had no knowledge of the stage that had been reached in the investigation or any aspect of it including submissions that had been made. During his time at the Commission and since there had been no communication between he and his daughter concerning Operation Tolosa. He had no knowledge of the removal of the head gymnastics coach referred to in Ms Hall's email until he received a copy of it from the Inspector. He had not previously even been aware of the name or location of the gym his granddaughter attended for gymnastic training. He considered his daughter's email to be "completely out of order and should not have been sent".
The following was quoted by the Inspector as part of Ms Hall's response: I want to say at the outset that I am truly sorry for having mentioned my father in my 18 May 2023. I shouldn't have done so. My father has nothing to do with the subject matter of my 18 May 2023 email. … I referred to my father because I was trying to get a response by provoking a reaction in circumstances where previous attempts to have the subject matter of the email addressed by the Council had gone unanswered. … I was aware of the ICAC investigation into alleged corruption at the Canada Bay Local Council from having seen it in the news, When writing the email I did some google searches and found some articles, including an article from the Greek Herald which I attach a copy of. It is from this article that I got the names I included in my email. I specifically mentioned the Mayor as he was the head of the Council and I wanted him to do something. I thought that mentioning the Inquiry and my father would at least get a response in circumstances where previous attempts at getting a response had failed. I cannot now recall whether I specifically connected that my father was the one who presided over the Inquiry into Canada Bay Local Council but I knew he was the Chief Commissioner and I just assumed that he would therefore have something to do with ICAC's investigation.
Mr Hall was said to have refuted the assertion of bias. He did not recall anything in that respect having been raised during the public hearings (and I note that the plaintiff does not suggest otherwise).
The Inspector set out her findings as follows: I have set out the responses to my investigation above, in some detail in relation to the circumstances in which the email was sent. I accept those accounts. I note in particular that the former Chief Commissioner did not speak with his daughter prior to responding to me and that he had not seen the email before I had sent it to him. Ms Hall confirms that her father was not involved in any way with the email or telling her anything about Operation Tolosa. Ms Hall has provided me with the source of her statements. Taking all the material into account, I accept that former Chief Commissioner Hall did not abuse his power, act with impropriety or misconduct himself in any way. I am satisfied that he was not the source of the statements in Ms Hall's email and did not speak to her about Operation Tolosa. I have no jurisdiction over Ms Hall and decline to make comment on her conduct. In relation to your allegation of bias, you have not provided any particulars, including any references to the transcript of the public inquiry or to submissions that support your allegation. I note that you have not referred to any submissions by your counsel during the hearing requesting the former Chief Commissioner to recuse himself for bias. Further, your counsel did not make any submissions as to bias in their submissions in reply to counsel assisting's. Having accepted the former Chief Commissioner's and Ms Hall's accounts, in particular that the former Chief Commissioner had no involvement in the drafting or sending of the email, I am not satisfied that that part of your complaint in relation to bias has been made out. Thank you for your complaint. It raised serious issues which warranted my investigation. I will be advising the ICAC, the former Chief Commissioner and Ms Hall of the outcome of my investigation.
The Commission's Report was furnished to the Presiding Officer of each House of Parliament on 9 November 2023.

Grounds 1 and 2 - The plaintiff's case on apprehended bias

The plaintiff contends that the email he sent to the Inspector raised an allegation of apprehended bias. [25] It included his claim that Ms Hall's email "confirms and heightens my view of the bias I have experienced under Commissioner Hall … [who was] still trying to work out how to reach an unfavorable [sic] finding against me". Despite the breadth of that claim, there is no suggestion of any basis for apprehended bias beyond the content of Ms Hall's email.
The plaintiff contends that Ms Hall's email "makes statements seemingly on behalf of her father". He based this on Ms Hall's use of the plural personal pronoun in "we have had - and continue to have - a very keen interest in what goes on at Canada Bay Council and FDLC" which appears in the sentence immediately following her reference to her father: "I'm sure you remember Mr Peter Hall QC …". [26]
As to the Inspector's statement that he did not make any submission as to bias in written submissions to the Commission, the plaintiff responded that his submissions of 26 September 2022 and 6 March 2023 preceded the email sent on 18 May 2023 and those that were sent on 19 June 2023 were only in answer to Supplementary Submissions by counsel assisting of 15 May 2023. [27] This implicitly confirms that there was no justification for the breadth of the assertion of bias the plaintiff said he had "experienced under Commissioner Hall".
It was submitted that "The Report makes clear that it was reliant upon the impressions of Chief Commissioner Hall in making its conclusions on the credit of Mr Tsirekas" and that those views adversely influenced the conclusions about the plaintiff reached in the Report. [28]
Reference was made to the Inspector's statement that Mr Hall had informed her that at the time he left the Commission, Operation Tolosa had not finished and counsel assisting had yet to make submissions. She said, "It follows that no findings of fact or of corrupt conduct had been made by the Commission or more particularly by the former Chief Commissioner". The plaintiff took issue with this because it was stated at page 12 of the Report that "Chief Commissioner Hall determined that Mr Tsirekas' evidence was not credible and should not be accepted …". [29]
The plaintiff referred to the Inspector informing him of other parts of the responses by Ms Hall and her father, before stating her conclusion that Mr Hall did not abuse power, act with impropriety, or misconduct himself in any way. Further, she said Mr Hall was not the source of the statements in the email and did not speak to his daughter about Operation Tolosa. [30] It was submitted that the Inspector had not engaged with the relevant legal inquiry which was whether there was apprehended bias and nor did the Report. [31]
Reference was made to the articulation of the apprehension of bias principles in Ebner v Official Trustee in Bankruptcy, with the first step being to identify what it is that might lead a judge (or juror) to decide a case other than on its legal and factual merits and the second step being to articulate the logical connection between the matter and the feared deviation from the course of deciding a case on its merits. Reference was also made to this approach being applied in the context of an ICAC Commissioner in Duncan v Ipp. [32]
As to the second step, it was submitted to be "important to recall that Mr Tsirekas identified a logical connection when he asked the question in his complaint to the Inspector, 'Why is Operation Tolosa seemingly being discussed freely and shared widely by the Commissioner's family prior to any resolution of this inquiry?'" [33]
It was submitted that the use of the term "we" by Ms Hall was an attempt to invoke her father's authority and natural concern about his granddaughter and created the required logical connection in the mind of a reasonable and fair-minded observer, using the language of Bathurst CJ in Duncan v Ipp at [147]. [34]
Reference was also made to Bathurst CJ having observed at [210] that statements made by the decision-maker as to their state of mind could be taken into account in determining they might not be able to fairly adjudicate on the issue before them, but that these were not determinative. Thus, the plaintiff submitted that the statements made by Mr Hall in his response to the Inspector were not determinative, particularly where there was no sworn evidence by either him or his daughter, only hearsay statements by them recorded in the Inspector's letter. [35]
Reference was made to a book of which Mr Hall was the author: Investigating corruption and misconduct in public office: Commissions of Inquiry - powers and procedures (2nd ed, 2019, Lawbook Co.) in which it is said (at [9.330]), "Where a concern of bias is made known, a commission of inquiry should respond both promptly and in detail and clarify any misconception or misunderstanding that may exist". The plaintiff noted that the ICAC should have responded but did not. It was not a matter for the Inspector to respond to as she had a separate and distinct function. Her response was not a response by the Commission. The Commission could have responded because the complaint had been drawn to its attention. [36] As to this assertion see below (at [57]-[59]).
The plaintiff listed 17 matters that he contended a "fair-minded lay observer would take into account, among other matters". Most are references to submissions referred to above. One of the matters was that the unsworn hearsay statements of Ms Hall and her father referred to in the Inspector's letter to the plaintiff was of "low provenance" by which was meant of lower value or deserving of lesser weight when contrasted with the sworn evidence provided by the plaintiff which was subjected to cross-examination over many days. [37] The utility of such a comparison was not explained. None of the plaintiff's sworn evidence concerned his assertion of apprehended bias. The complaint he made in his email to the Inspector was of a similar quality to the statements made by Mr Hall and his daughter; none were on oath or affirmation. Moreover, whilst statements made by judges (and other relevant decision-makers) are not determinative when a question of apprehended bias is raised, they may be, and generally are, deserving of some weight.
Another matter was that the observer would treat the complaint to the Inspector "as being a complaint to ICAC involving an allegation of apprehended bias by Chief Commissioner Hall". [38] It was further submitted that "Chief Commissioner Hall agreed with such a characterisation of the complaint by Mr Tsirekas". [39]
It is correct that Mr Hall's response indicates he accepted there was a complaint of bias but he understood it as bias in the conduct of the public hearings. He noted that no particulars had been given and recalled that no objection had been taken or application made for disqualification on the ground of bias. He did not express an understanding that his daughter's email gave rise to an apprehension of bias and he certainly did not agree with a characterisation of the plaintiff's complaint as being a complaint made to the Commission as opposed to the Inspector.
A further submission was that "the apprehended bias complaint was not addressed in the Report, when it could have been, having been drawn to the attention of the ICAC". [40] It was accepted at the hearing of the summons that the footnote reference in the written submissions to the source of this was inaccurate. Perhaps it was intended to refer to a statement by the Inspector at the end of the letter that, "I will be advising the ICAC, the former Chief Commissioner and Ms Hall of the outcome of my investigation". [41] That does not clarify whether, and if so to what extent, the terms of the complaint were passed on to the Commission. It also does not indicate whether that was done before the Report was furnished to Parliament at 11am the next day.
Leave was granted for the plaintiff's representatives to provide, subsequent to the hearing, references to anything in the evidence that might clarify this point. However, at the conclusion of the hearing, Senior Counsel for the defendant informed the Court that he had been instructed the Commission was made aware of the fact that a complaint had been made to the Inspector by the plaintiff; however, there was no evidence before the Court that the Commission was aware that the allegation was one of bias until the communication from the Inspector on 8 November 2023. [42]
Pursuant to the grant of leave, on 15 November 2024 the plaintiff provided references to evidence and a short submission. The upshot of it is that there was a basis to conclude that the Commission was aware of the plaintiff's complaint and of the outcome of the Inspector's investigation. All that does is provide a basis to infer that the Commission was made aware of a broad ranging allegation by the plaintiff of bias against him over the course of the Commission's investigation which had not been the subject of any complaint having been raised by his lawyers. It would also have been made aware that an investigation had been carried out by the Inspector in relation to the email from Ms Hall which led to a finding that there was no abuse of power, impropriety or misconduct by Mr Hall, that he had not spoken to his daughter about Operation Tolosa, and that he had nothing to do with the email. In these circumstances it is unsurprising that the Commission did not say anything about an apprehension of bias in its Report.
The plaintiff's written submissions conclude with an application of the two steps referred to in Ebner v Official Trustee in Bankruptcy. As to the first step, there was the use of "we" in Ms Hall's email which a fair-minded observer could understand to be a reference to herself and her father. Secondly, there was the fact this had been addressed by unsworn hearsay statements rather than by evidence on oath or affirmation by the pair. Thirdly, this fact had been addressed in a hearsay manner in the Inspector's letter in circumstances where the letter contains material that is inaccurate. [43] I take the latter to be a reference to some instances of Mr Hall referring to something which he related to a date in "2022" instead of "2023" (the date of his daughter's email and the date of the Inspector's communication to himself). The inaccuracy is inconsequential.
Moving to the second step, it was submitted that the logical connection between the above and apprehended deviation from deciding the question of the plaintiff's credit on its merits was that he gave evidence of not receiving kickbacks and yet the email was capable of indicating Mr Hall was of the view that he had, or that such matters had been discussed between him and his daughter. It was submitted, "The fact that such conversations did not occur does not determine the question of whether the statements of Ms Hall create an apprehension of bias". [44]
The last point was not further developed. To the extent that the plaintiff appears to be suggesting that an incorrect statement made about a decision-maker could be the basis of apprehended bias of the decision-maker, perhaps such a thing might do so in the mind of the party potentially the subject of the feared bias, but the claim would likely fail at the third step.
The third step of considering the reasonableness of the apprehension of bias from the perspective of the fair-minded lay observer was said to arise from the perception that "a decision-maker who might have considered that Mr Tsirekas might have received kickbacks, might not decide the question of the credit of Mr Tsirekas on the merits". [45]

Ground 3 - The plaintiff's case on denial of procedural fairness

The plaintiff referred in the summons to the italicised portions of the following passages of the Report. The quotations have been enlarged to provide context.

Page 12 Chief Commissioner Hall determined that Mr Tsirekas' evidence was not credible and should not be accepted unless corroborated by independent and objective evidence or was otherwise against his interest. Mr Tsirekas repeatedly avoided answering questions or provided non-responsive answers, failing to heed warnings from the presiding Commissioner. His evidence was deliberately confusing and often contradictory. On numerous occasions, when asked about his motivation for a particular decision, he said that there was "no real reason". His evidence was inconsistent. For example, in the public inquiry, he sought to "correct" or change his evidence, in effect, withdrawing admissions he had made during his compulsory examination, without articulating a good reason for doing so.

Page 37 Mr Tsirekas' evidence about whether his mother was aware of his father as the source of the Machonic money was inconsistent and therefore unreliable. During his compulsory examination on 7 April 2022, Mr Tsirekas said he did not think his mother knew that his father was giving him cash, and he never told his mother about receiving cash from his father. However, as previously noted, he said that while his mother could possibly provide information, he could not recall discussing it with her and that she had "[a] bit of dementia". The Commission prefers the evidence of Mr Colacicco and is satisfied that Mr Tsirekas did not tell him that Mr Tsirekas Senior was the source of the cash. Mr Tsirekas was a witness who lacked credit and there was no reason for Mr Colacicco to lie about this issue.

Page 141 The Commission invited submissions from Mr Tsirekas in respect of the medical evidence. The Commission has considered those submissions. Mr Tsirekas submitted that, to the extent that Mr Tsirekas' evidence was characterised by Counsel Assisting as "non-responsive" and/or "dissembled", the expert evidence supports Mr Tsirekas' submission "that it is very likely that Mr Tsirekas experienced impairment in mental performance, in particular memory function, when providing such evidence as a consequence of the prescribed medication he was taking. Accordingly, to the extent that any evidence given by Mr Tsirekas is considered to be 'non-responsive' and/or 'dissembled', the medication is very likely the cause. The Commission does not accept the submission. The evidence disclosed that Mr Tsirekas first consulted a medical practitioner about stress- and anxiety-related problems prior to the compulsory examinations in late March 2022. The underlying stressors, as reported to the psychiatrist, related to events that commenced in 2014 and 2017 respectively. The psychiatrist's opinion in relation to the side-effects was based substantially on the evidence of Mr Tsirekas, as to whose credibility the Commission has made adverse findings. Furthermore, the psychiatrist did not claim to have observed Mr Tsirekas give evidence. None of the suggested side-effects explain Mr Tsirekas' robust retraction of statements against his interest previously made in the compulsory examinations and interviews (including those that took place prior to his commencement of medication). At no time did Mr Tsirekas claim to have impaired memory function or the other listed side-effects. Certainly, a reading of the transcript does not disclose any inability or deficit in his functions in defending his position. For these reasons, the weight to be attached to the psychiatrist's opinion is limited and the Commission considers that the medical evidence does not advance Mr Tsirekas' position.

The plaintiff's submissions also drew attention to the following matters in the Report. [46] It states: "The Commission has taken all submissions into account in preparing this report". [47] No author of the Report is identified. The defendant's response to the summons asserts that the Commission made the findings at pages 12, 37 and 141 of the Report yet at page 12 it is said that Chief Commissioner Hall determined the credibility of the plaintiff. The Report makes no reference to the plaintiff's complaint of apprehended bias, Ms Hall's email, nor the investigation conducted by the Inspector of the plaintiff's complaint.
The plaintiff acknowledged the need to read the Report "without an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. (The defendant also referred to Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 where it was said, "The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts".) The plaintiff nevertheless submitted that "the Report can also be taken at face value when it unambiguously states [at page 12] that the determination of the credibility of Mr Tsirekas was undertaken by Chief Commissioner Hall". [48]
This submission involves a misstatement of what the Report said. It did not state that Mr Hall undertook "the" determination of credibility of the plaintiff, the implication being that he alone did so.
A similar misstatement was made in the preface to the next submission. The submission itself makes clear that, at least at the time the written submissions were prepared, it was the plaintiff's case that Mr Hall was the person who made the credibility determination upon which the Report was based. [49] Despite the Report stating that it is based on the findings of credit made by Chief Commissioner Hall, he did not receive nor consider the submissions on credit made by Mr Tsirekas. This is a situation where Mr Tsirekas was denied procedural fairness because the person who made the demeanour based credibility assessments in the Report, Chief Commissioner Hall, was not the person who received nor considered the submissions made by Mr Tsirekas about those proposed findings.
The submissions then refer to the Inspector's letter quoting Mr Hall having said, in substance, that he had nothing to do with Operation Tolosa after he left the Commission. [50] This appears to be the basis of the proposition that he had no knowledge of the submissions that were made by the plaintiff. That is accepted.
The plaintiff stressed the importance of the person who was to make the determination about his credibility being the person who had seen him give evidence and in that respect relied upon an observation made by McHugh J in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [67] that "a finding on credibility … is the function of the primary decision maker par excellence". [51]
The plaintiff's submissions continued by referring to cases concerned with hearings or investigations that had been carried out by persons who did not make the ultimate determination. This is discussed below (at [91]). This issue is not directly relevant to Ground 3 as it does not seek relief based upon the Commission's Report not having been made by Mr Hall. To reiterate, it is based upon the assertion that the Report included reliance upon Mr Hall's determination of the credibility of the plaintiff's evidence without Mr Hall having taken into account the plaintiff's submissions. [52]
Before moving on, the following observation should be made about the plaintiff's assertion that Mr Hall was the best placed person to assess the credibility of his evidence because he saw it being given (see below at [92]). The reasons stated at page 12 of the Report for Mr Hall's view that the plaintiff's evidence was not credible were all matters that were objectively discernible from a review of the transcript. The matters included that the plaintiff "repeatedly avoided answering questions or provided non-responsive answers, failing to heed warnings from the presiding Commissioner".
During the hearing, [53] Senior Counsel for the plaintiff referred to the following observation of Ward P in Berejiklian v Independent Commission Against Corruption at [337]: The conclusion as to a witness' responsiveness in answering questions, for example, is in practice something most likely to be drawn from observation of the evidence being given rather than by reference, say, to a transcript of that evidence.
That might be the case if "responsiveness" is a reference to whether a witness is slow in responding to questions or pauses frequently during the course of answering. But responsiveness can also be concerned with whether the witness answers the question. Searching the soft copy of the transcript of the plaintiff's evidence reveals many instances of the word sequence "answer the question" appearing. There are likely instances of something to the same effect also having been said. The Commissioner warned the plaintiff on a number of occasions and it is correct (as stated at page 12 of the Report) that he failed to heed such warnings and continued to avoid answering or provided non-responsive answers. The following is one example: [54] THE COMMISSIONER: Would you please, you consistently avoid answering the question, the point of the questions. As I've explained to you that means we spend more time having the question re-put, you answer, and if it again doesn't answer the question we have to have it re-put a third time.
Counsel assisting resumed his examination and over the immediately ensuing page and a half of transcript the Commissioner had cause to intervene twice to direct the plaintiff to answer the question.
The plaintiff implicitly conceded that his evidence was at times, as counsel assisting had submitted, unresponsive and dissembling. Explaining why that was so was the point of tendering the report of the psychiatrist (see above at [30]).

Defendant's submissions concerning the three passages relied upon

The defendant submitted that the three parts of the Report concerned with the plaintiff's credibility to which the plaintiff referred need to be placed in their proper context.

Page 12

This page is within Chapter 1 of the Report headed "Background", the first paragraph of which states: This chapter sets out some background information about the investigation and public inquiry conducted by the NSW Independent Commission Against Corruption.
The comments about which the plaintiff takes issue expressly commence by stating that "Chief Commissioner Hall determined that Mr Tsirekas' evidence was not credible", he having observed the evidence being given. Both parties infer that the comments are a summary of Mr Hall's notes prepared during his term as Chief Commissioner. [55]
The defendant submitted that the word "determined", something the plaintiff places emphasis upon, may be "unhappy phrasing". It should not be construed as meaning that "Mr Hall made the Commission's finding …". Moreover, the context indicates that it was the Commission that made findings about the plaintiff's credibility and did so after having considered all the submissions. [56]
The defendant submitted that the views of Chief Commissioner Hall were "part of the overall matrix of material to which the Commission ultimately had regard in making its findings". The reference to Chief Commissioner Hall's assessment that the plaintiff's evidence was not credible was not, on its own terms, a "finding" by the Commission as to the plaintiff's credibility. [57]
The defendant also submitted that "read fairly and without an eye for error, the paragraph on page 12 about the plaintiff involved both a record of the Chief Commissioner's assessment of the plaintiff's credit and an indication (made clear in the balance of the report) that the Commission's own conclusion, based on its consideration of all material (including written submissions) was that the plaintiff lacked credibility". [58]

Page 37

The passage on page 37 referred to by the plaintiff is within Chapter 3 headed "Mr Tsirekas' finances". The immediate context for the statement that the plaintiff "was a witness who lacked credit" was a discussion of evidence he gave as to the source of money ($41,250 in cash) he paid between 14 January 2015 and 25 February 2016 to a man named Colacicco to deposit into a particular bank account. Some of the money was subsequently directed towards payment of the deposit for a unit the plaintiff intended to purchase in Ashfield. He gave evidence in the public hearing that the money came from his father and that Mr Colacicco knew that. The Commission noted that the plaintiff's father, who had since died, was in his late 70s at the time and both the plaintiff's parents were receiving the aged pension. He explained that his father was paid in cash for detailing cars and he also liked gambling on poker machines.
The plaintiff equivocated in his evidence when asked whether the money was given to him as a gift or a loan and then said his father was supporting him, to help him get back on his feet and purchase a property. He denied the money came from developer interests in the local area. The Report refers to inconsistent evidence the plaintiff had given about the source of the money. [59]
The Report then summarised a financial analysis carried out by the Commission which led it to reject the plaintiff's evidence that his father was the source of the money. It set out reasons for this conclusion. Included was the following paragraph in which the impugned statement appears: [60] The Commission prefers the evidence of Mr Colacicco and is satisfied that Mr Tsirekas did not tell him that Mr Tsirekas Senior was the source of the cash. Mr Tsirekas was a witness who lacked credit and there was no reason for Mr Colacicco to lie about this issue.
This was part of the Commission's finding that there was no evidence corroborative of the plaintiff's evidence that his father was the source of the money. It also noted that the objective evidence demonstrated the plaintiff's father lacked the means to give him substantial amounts of money and the patterns of withdrawals from his parents' bank accounts did not correlate with the amounts allegedly provided to the plaintiff by his father. The plaintiff's evidence that his father kept cash at home and had always done so because of his mistrust of banking institutions was uncorroborated and for various reasons implausible. There was no evidence to support gambling as the source of the cash money. [61]
The final reason given by the Commission for rejecting the plaintiff's claim that his father was the source of the money was that he "was not a credible witness". [62] In this respect it noted he had lied to the Commission in evidence given at a compulsory examination on 24 March 2022 when he said the source of the money was his superannuation fund and a payout from Canterbury City Council resulting from his resignation. [63]
The defendant's submission was that when seen in context, the finding that the plaintiff "was a witness who lacked credit" was "clearly one made by the Commission on the basis of the evidence before it". [64] The plaintiff conceded in oral submissions that this was so. [65]

Page 141

The reference on this page to the Commission having made adverse findings on the credibility of the plaintiff's evidence confirmed, in the defendant's submission, that "In terms, that is the Commission recording that it has made findings about the plaintiff's credibility".

The hearing was conducted by a person who did not make the final report

The parties made competing submissions about whether it was appropriate for the Report to be written by someone who had not presided at the hearings. [66] For example, the plaintiff relied upon Berejiklian v Independent Commission Against Corruption as a "stark contrast" to the present case whereas the defendant submitted there was consistency. In that case, the Hon Ms Ruth McColl AO SC had been an Assistant Commissioner who had presided over public hearings. She drafted that which preceded the final Report in that capacity and when her appointment expired she continued to do so as an officer of the Commission, having been engaged as a consultant under s 104B of the Act. The draft was the subject of a review by a panel presided over by the Chief Commissioner who had the ultimate responsibility for making the Report to Parliament.
Ms McColl undertook the credit assessments of witnesses. The plaintiff referred to the majority in the Court of Appeal having referred (at [86]) to Ms McColl as "the person best placed to make those assessments". The contrast was said to be that in the present case, while Mr Hall was likewise the person best placed to assess the credibility of the witnesses, the report writer only had access to his notes which were made without the benefit of seeing any of the submissions made by the plaintiff. [67]
The defendant, on the other hand, referred to the Court of Appeal majority as having indicated (at [74]) that there was nothing impermissible, as a matter of principle, in the hearing function of an administrative body being undertaken by someone other than the person making the final decision.
There was also dispute with the premise of the plaintiff's contention, namely that the hearing function can only be performed by the same Commissioner who prepares the Report. Reference was made to s 31 of the Act which provides, inter alia, for an Assistant Commissioner to conduct a public inquiry but s 107(4)(b) prohibits the report making function being delegated to an Assistant Commissioner. [68] That was one of several examples of statutory contemplation being to the contrary of the plaintiff's contention. [69]
The point(s) the plaintiff sought to make by its reference to cases concerned with a hearing or investigatory function being carried out wholly or partly by one person, or group of persons, and the ultimate determination of a proceeding or inquiry being carried out by another, or others, is/are not directly relevant to the resolution of Ground 3. As indicated earlier (at [72]), the ground is not concerned with an allegation of error in the process that was adopted for investigation and reporting upon Operation Tolosa. It contends there was a denial of procedural fairness by Mr Hall determining the credibility of the plaintiff's evidence without having considered his submissions. The Court's conclusion in relation to that appears below (at [137]-[140]).
The defendant responded to the plaintiff's submissions, explaining at the hearing a perception that the plaintiff's case had two related points, one of which was that as Mr Hall had presided over the public hearings it was not open to Mr Hatzistergos to make adverse credibility findings even if he wanted to. [70] The defendant's submissions as to why that point should fail are accepted, although as indicated above the plaintiff does not bring his case on Ground 3 in that way. The fact that Senior Counsel for the plaintiff unequivocally accepted at the hearing that to succeed on this, and the other grounds, it was necessary for him to make good the proposition that Mr Hall was a "decision-maker" (see below) confirms that Ground 3 was only put on the basis pleaded in the summons.

Was Mr Hall a "decision-maker"?

Senior Counsel for the plaintiff accepted that it is critical to the success of each ground that Mr Hall was, at least to some extent, a "decision-maker" in relation to the Report and the findings of the Commission. [71]
In Grounds 1 and 2 which are concerned with apprehended bias, the question is whether a fair-minded lay observer might reasonably apprehend that Mr Hall might not bring an impartial mind to the resolution of a question he was required to decide. If Mr Hall did not decide anything then apprehended bias could not arise.
Ground 3 is an allegation of denial of procedural fairness. It is based upon two asserted facts: (1) the Commission's determination of the credibility of the plaintiff's evidence was made by Mr Hall and (2) he did not take into account the plaintiff's submissions. It is the first asserted fact that is controversial.
It follows that to succeed on any of the grounds (those that are pressed) the plaintiff needs to establish that the Report was based upon a determination made by Mr Hall that the plaintiff's evidence was not credible.
The written submissions for the plaintiff approached the issue on the premise that Mr Hall made the determination entirely (see above at [67]). During the course of the hearing, however, it was accepted that the Commission itself determined the credibility of the plaintiff's evidence on one specific subject: the source of money he gave to Mr Colacicco which was deposited to the bank account of Machonic Pty Ltd. Senior Counsel for the plaintiff maintained that this was the only exception. He submitted: [72] The approach take to Machonic stands in stark contrast to all of the other allegations in that the determination by Mr Hall carried the day, so to speak, in relation to demeanour based credibility. Your Honour, my understanding is if your Honour formed the view that the rest of the report, with the exception of the Machonic analysis, was the subject of the submission that I have made already, that that would be sufficient for the declaration, or a declaration to be made. That is, my learned friend, Mr Emmett, would need to satisfy your Honour that the Machonic approach was taken to all of the subject matter in the report, and in the absence of your Honour being satisfied that that approach occurred, then the report could not stand.
It was the defendant's submission that the author of the Report engaged in an assessment of the credibility of the plaintiff's evidence and took into account his submissions in doing so. Accordingly, there was no denial of procedural fairness.
The impugned statement on page 12 of the report ("Chief Commissioner Hall determined that Mr Tsirekas' evidence was not credible …") should be understood in the context in which it was made (see above at [78]). It was clearly recording or observing the view that Mr Hall had formed, but it was by no means simply accepted and acted upon.
The Commission expressly stated that it had taken all of the submissions into account in preparing the Report and then referred to Appendix 3 "for further information". [73] Appendix 3 contains a summary of the submissions of the plaintiff, including as to his credibility.
There are numerous instances of the Report referring to and analysing the evidence and reasoning to a conclusion as to whether the plaintiff's evidence could be accepted or should be rejected; that is, whether it was credible.

Chapter 3: Mr Tsirekas' finances

At page 27 there is discussion of $5000 having been given by a Mr Panuccio to the plaintiff. It concludes: In the Commission's view, Mr Tsirekas' evidence as to how he came to receive the loan from Mr Panuccio for the flight upgrade was vague, unconvincing and implausible. Mr Panuccio's evidence was also vague, unconvincing and implausible. The Commission rejects the evidence of both Mr Tsirekas and Mr Panuccio in relation to this issue. The Commission is satisfied that the $5,000 amount was either from Mr Panuccio, or from a person or persons unknown. The Commission is satisfied that the money was not given as a loan to Mr Tsirekas but as a gift, and was repaid only after Mr Tsirekas became aware of the Commission's investigation.
At pages 28-9 there is discussion about the provenance of $7,040 cash found in an envelope in a jacket pocket in the plaintiff's home. It concludes: The Commission rejects Mr Panuccio and Mr Tsirekas' evidence about the provenance of the $7,040 for the following reasons. … [Four reasons are set out. None of them are concerned with the former Chief Commissioner's view of the plaintiff's credibility.] The Commission is satisfied that Mr Tsirekas and Mr Panuccio's evidence was invented in order to explain why Mr Tsirekas was in possession of the $7,040 cash sum.
At page 32 the Report states, "the Commission rejects" the plaintiff's evidence concerning the provenance of $6,043 cash found in a shoe box at his home. The reasons given include satisfaction that the plaintiff had invented his evidence and had given inconsistent evidence.
At page 33 "the Commission rejects" the plaintiff's evidence that his father was the source of money put towards trips to Italy and Hawaii for reasons set out later.
At pages 34-38 there is the discussion of the money ($41,250) deposited to the Machonic account (see above at [84]) with the Commission rejecting the plaintiff's evidence. Various reasons are given, including that the plaintiff's "evidence about whether his mother was aware of his (late) father as the source of the Machonic money was inconsistent and therefore unreliable", and he was not a credible witness in that he had told a lie on this subject during his compulsory examination on 24 March 2022. This is the single instance for which the plaintiff concedes that the Commission made the adverse credibility finding in relation his evidence (see above at [101]).

Chapter 4: I-Prosperity

Chapter 4 is concerned with the plaintiff's dealings with a property development entity called I-Prosperity. There are repeated statements that "the Commission rejects" the plaintiff's evidence and they are accompanied by reasons for doing so. None of the evidence was rejected even partly on the basis that Mr Hall had determined it was not credible.
The subject of whether the plaintiff was required to disclose a conflict of interest in relation to I-Prosperity and its personnel at a Council meeting on 31 May 2016 is an example of how a strong adverse credibility finding could be made without having seen or heard the evidence being given. The Report referred to what the plaintiff said when interviewed by Commission officers on 9 September 2020, namely that he should have declared a conflict of interest. He maintained that position in his evidence at compulsory examinations on 24 March and 7 April 2022. He sought to withdraw those concessions in the subsequent public inquiry. [74] The Commission's rejection of his evidence was in strong terms: [75] The Commission rejects Mr Tsirekas' attempts to withdraw or change his evidence. Mr Tsirekas was not able to credibly or plausibly explain why the evidence he gave in his compulsory examinations was wrong. Despite being given multiple opportunities to explain what evidence there was to justify the change, Mr Tsirekas was unable to identify any such evidence. In the circumstances, the Commission is satisfied that the reason Mr Tsirekas sought to change or correct his evidence, or withdraw his admissions/concessions, was because he realised that they were against his interest and he was simply trying to protect himself by changing them. Mr Tsirekas' unexplained and unjustified reversal of his previous sworn evidence represents a dishonest attempt to mislead the Commission in its investigation and gives rise to serious credibility issues relating to him.
Despite a reference at the beginning of this Chapter of the Report [76] to the credibility determination of the plaintiff having been set out in Chapter 1 (pp 10-15) there was no reference to the assessment of Mr Hall having any bearing upon this, or any other adverse finding in Chapter 4.

Chapter 5 - Billbergia and Prolet

This chapter is concerned with the plaintiff's involvement with other people and entities concerned with property development, one of who was Joseph Jacob. At the outset of the chapter, it is said that "The Commission accepts assessments of credit made by the presiding Chief Commissioner, the Hon Peter Hall KC, in relation to Joseph Jacob". It then refers to Mr Hall's reasons for the assessment of Mr Jacob being "a poor witness who lacked credibility". [77]
There are fewer instances of "the Commission rejects" the plaintiff's evidence in this chapter. At page 88 it rejected his evidence of having no knowledge of Mr Chidiac's commercial arrangements with Billbergia and Prolet (property development and construction entities), saying he "was a witness of no credit and his evidence on this issue was implausible". The basis of the implausibility is apparent from the preceding summary of the plaintiff's evidence on the subject. For example, his denial of a suggestion that he must have known of Mr Chidiac's role with developer interests notwithstanding he had met, dined with, and travelled to Shanghai with Mr Chidiac in the company of such developers. [78]
At page 96 the Commission rejected evidence, presumably because it was implausible, that despite seeing Mr Chidiac frequently and going on overseas trips with him, he did not know what Mr Chidiac did for a living.
At page 99, following a review of evolving and at times inconsistent evidence by the plaintiff, it rejected his attempts to withdraw concessions or admissions previously made. It observed that he was unable to identify any reason why the evidence previously given under oath was wrong, other than what he had heard other people say about his relationships with people with property interests in the area.

Chapter 6 - Proposed development at 168-172 Victoria Road, Drummoyne

This chapter contains another instance of "the Commission rejects" the plaintiff's attempts to withdraw admissions made in an interview and compulsory examination.

Annexure 3: Summary of response to proposed findings

This annexure summarises the three written submissions provided to the Commission by the plaintiff as well as the opinion of the psychiatrist referred to previously (see above at [30]). It is evident that the Commission made its own determination when rejecting the medical evidence and the submissions which were based upon it. No reference was made to the assessment of his credibility by former Chief Commissioner.

Conclusion

The primary purpose of Operation Tolosa was for the Commission to examine the conduct of the plaintiff in relation to planning matters involving certain developers and the conduct of those developers in their interactions with him. In that regard the investigation examined allegations that he had engaged in certain corrupt activities that were particularised in the "Summary of investigation and outcomes" at the beginning of the Report. [79] The plaintiff denied that he had engaged in any corrupt activities.
In carrying out the investigation and to enable a Report to be made it was necessary for the Commission to determine what evidence supported the allegations on the one hand and whether the plaintiff's denials should be accepted on the other. A broad assessment of his general credibility may have been of some utility but it was not essential to the Report. What was essential for conclusions to be reached concerning the specific allegations was for there to be a determination whether the plaintiff's explanations and denials in respect of each of the specific allegations were credible or otherwise. It was logical and necessary for the Commission to make a Report in that way and that is what it did. If the plaintiff's contention is correct, the task of writing the Report would have been much simpler and the Report far shorter than it was.
Mr Hall did not determine the credibility of the plaintiff's evidence concerning specific factual issues that were the basis of the findings the Commission made. The Commission did that. In doing so it may have had regard to Mr Hall's view of the credibility of the plaintiff's evidence in an overall sense but the analysis above (at [105]-[119]) indicates that this broad conclusion was not decisive. The Commission may have seen that its conclusions on the specific matters were supported by Mr Hall's view but it is not apparent that the conclusions were arrived at because of it or that they were materially influenced by it.

Grounds 1 and 2 - apprehended bias

For the foregoing reasons there can be no apprehended bias in respect of Mr Hall. That is, there was no occasion to apprehend that he might not bring an impartial and unprejudiced mind to the resolution of the question of the credibility of the plaintiff's evidence on specific factual issues arising in the investigation.
Consequently, there was no error in the Report not referring to, or determining, an allegation of apprehended bias (Ground 1). Similarly, there was no error in the Report not finding that there was apprehended bias (Ground 2).
There are further reasons why these grounds are not made out.

Temporal and logical disconnect

The defendant submitted that in addition to Mr Hall not determining the credibility of the plaintiff's evidence for the purposes of the Report, there was another fundamental problem in relation to these Grounds in that there is a temporal and logical disconnect between Mr Hall's involvement with Operation Tolosa and the email sent by his daughter. [80]
The parties differed in their submissions about how the email sent by Ms Hall should be construed. For present purposes it may be assumed in the plaintiff's favour that it was capable of conveying to a fair-minded lay observer that the "we" emphasised in the following sentence was a reference to herself and her father: I'm sure you remember Mr Peter Hall QC, the former Chief Commissioner of ICAC? His granddaughter is a competitive gymnast at Five Dock Leisure Centre so we have had - and continue to have - a very keen interest in what goes on at Canada Bay Council and FDLC.
The facts are Ms Hall's email was sent on 18 May 2023 and was said to be motivated by the "recent" dismissal of the head gymnastics coach at the Five Dock Leisure Centre. It was a matter of public record that Mr Hall's appointment as Chief Commissioner ceased on 6 August 2022. [81] Mr Hall had no further involvement with Operation Tolosa from that point and had at no time discussed it with his daughter, or anything concerning the place where his granddaughter attended for gymnastics training. Ms Hall had not spoken to her father about sending the email but mentioned him to try and provoke a response, having previously been unsuccessful in that respect. [82] The foregoing are their respective assertions to the ICAC Inspector, of course, but they are not inherently implausible and there is no evidence to the contrary.
The content of the email, the assertions by both Ms Hall and her father that there had been no communications between them about Operation Tolosa or about the dismissal of the gymnastics coach, and the time that had passed between the cessation of Mr Hall's role at the Commission and Ms Hall's email, would not lead a fair-minded lay observer to possibly apprehend bias in Mr Hall's determination of anything to do with Operation Tolosa while he was Chief Commissioner, even if he did determine something for the purposes of the Report.
In any event, for apprehended bias to be made out it would need to be possible for the fair-minded lay observer to reasonably apprehend that Ms Hall's implied statements that her father had "a very keen interest in what goes on at Canada Bay Council" and that the plaintiff and his "friends" are receiving "kickbacks" might mean that he will have prejudged something he was required to decide some nine months or more previously. There is no logical or temporal connection.

Waiver

To reiterate, the email from Ms Hall was sent on 18 May 2033. The plaintiff sent his email to the Inspector 3½ months later, on 4 September 2023. The plaintiff was notified on 6 November 2023 that the Report in Operation Tolosa was due to be furnished to Parliament at 11am on 9 November 2023. The plaintiff did nothing to communicate directly to the Commission his claimed apprehension of bias on the part of Mr Hall until he filed his summons on 14 December 2023, after he was aware of the unfavourable outcome. It was open to the plaintiff to communicate with the Commission prior to then, illustrated by his provision of written submissions on a particular issue on 19 June 2023, a month after receiving Ms Hall's email. He had the benefit of legal representation at least up to that point.
In these circumstances there is force in the defendant's submission that the plaintiff waived his right to make an allegation of apprehended bias. [83]
However, the plaintiff says that he should not be regarded as having waived his right to complain. He did complain and did so to the correct person, the Inspector who was the supervisor of the Commission. [84] According to the submissions of the defendant, however, the Inspector had her own functions and powers under ss 57B and 57C of the Act which meant that the complaint to her was for a different purpose under the statute and required her to perform a different function. In short, it was not a matter for her to determine whether there was apprehended bias and if so, what should be done as a consequence. This is even more the case where the complaint was not one involving a request for a decision-maker to recuse themself. [85]
Senior Counsel for the plaintiff referred to s 57D of the Act which provides the Inspector with power to hold inquiries and in that context have the powers of a commissioner under Pt 2 Div 1 of the Royal Commissions Act 1923 (NSW). [86] Having regard to the nature and form of the broadly expressed complaint made by the plaintiff and the responses the Inspector received from Mr Hall and his daughter, it is unsurprising that she did not have recourse to such a step.
It was conceded, implicitly, that the Commission became aware that there had been a complaint alleging bias when it received the communication of the result of the Inspector's investigation on 8 November 2033, the day before the Report was furnished to Parliament. There is no evidence of it being aware prior to that communication. [87] There is also no evidence as to the content of the communication from the Inspector to the Commission. The plaintiff did nothing to alert the Commission prior to 11am on 9 November 2023 that there was an assertion of apprehended bias that should be determined before any Report was made to Parliament.
The validity of the claimed apprehended bias is at most tenuous. The failure of the plaintiff to raise it with the Commission prior to the Report being made renders the claim unsustainable.

Ground 3 - denial of procedural fairness

The following submission by the defendant is accepted with one qualification: [88] To the extent the Commission's finding was based in part on the conclusion reached by former Chief Commissioner Hall referred to at page 12 [of the Report], the Commission did so in a context where it then went on to consider all of the submissions that the plaintiff says should have been considered. That the Commission took the same view as that which Chief Commissioner Hall had expressed is not a matter giving rise to any error, it is a matter of the merits of the Commission's conclusion on credibility, which as the plaintiff submits, are the repository of the decision-maker par excellence.
The qualification is that the extent by which the Commission's finding was based on the assessment of the plaintiff's credit made by Mr Hall appears to be slight at most. None of the instances of the Commission rejecting the plaintiff's evidence were simply upon the basis that Mr Hall had found his evidence not credible in an overall sense. In respect of most instances of rejection the Commission gave reasons which were based upon inconsistencies and implausibility which were apparent on the face of the transcript.
There was nothing wrong with the Commission having regard to Mr Hall's general assessment of credibility just as much as there was nothing wrong with it having regard to the submissions of counsel assisting which were to the same effect. To whatever extent Mr Hall's assessment was taken into account, the defendant's submission that it is improbable that Parliament intended that ICAC Commissioners would be precluded from having regard to assessments of credit formed by the Commissioner, or Assistant Commissioner, who presided over the public hearings is also accepted. [89]
The submissions of the plaintiff were considered in the Commission's assessment of the credibility of his evidence. There was no denial of procedural fairness.

Orders

None of the grounds have been made out and costs should follow the event. Accordingly, the following orders are made: 1. Summons dismissed. 2. Plaintiff to pay defendant's costs.

Endnotes

Tcpt, 5-6 in relation to Ground 4 and Plaintiff's Written Submissions (PWS) 58 in relation to Ground 5.
s 5(1) of the Act.
Citing Smits v Roach (2006) 227 CLR 423 at [43]-[49].
Citing Aronson et al, Judicial Review of Administrative Action (7th ed, 2022) at 697 and authorities there cited.
Citing Brown Brothers v Pittwater Council (2015) 90 NSWLR 717 at [142] (McColl JA, Macfarlan JA and Tobias AJA agreeing) citing Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76] (Gummow ACJ, Hayne, Crennan and Bell JJ).
PWS 80.
PWS 92. See also further extracts from the judgments at PWS 93-95.
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15.
PWS 96; 101.
DWS 18.
DWS 20.
PWS in Reply 5-6.
Bundle, pp 1018-9.
Bundle p 1017.
Bundle p1163-4
Counsel assisting ICAC submissions 35.
Plaintiff's submissions to ICAC 42-70.
ICAC Report p 141.
ICAC Report p 141 (Bundle p 1148).
Bundle pp 979-981.
Bundle pp 983-1005.
Bundle pp 1063-4; para 101-6.
PWS 87-88; DWS 25.
Bundle pp 1166-7
Bundle pp 1159-1162
PWS 64.
PWS 66-67.
PWS 68.
PWS 70.
PWS 71-2.
PWS 73-5.
Tcpt 21.20
PWS 76-80.
PWS 80.
PWS 82.
PWS 83.
PWS 85-9; PWS 97(n).
PWS 97 (h)(i); Tcpt 25.20-25.46.
PWS 97 (l).
PWS 97 (m)
PWS 97(n).
Bundle 1162
Tcpt 48.45 (see also 49-50).
PWS 98.
PWS 99.
PWS 100.
PWS 27-28; 31.
ICAC Report p 11.
PWS 35.
PWS 36.
PWS 37
Tcpt 19.10; PWS 40.
Particulars (a)-(n) of Ground 3 in the summons.
Tcpt 18.
ICAC transcript pp 2261-3; Bundle 606-8.
PWS 52; DWS 33.
Tcpt 38.11-38.19.
DWS 33.
DWS 34.
Bundle 1041-3
Bundle 1043-4
Bundle 1044
Bundle 1045
Bundle 1042
DWS 35.
Tcpt 8.15
PWS 39-51; DWS 54-57.
PWS 51-2.
DWS 54.
Tcpt 33.39-35.30.
Tcpt 33.21
Tcpt 6.45.
Tcpt 8.15.
ICAC Report p 11.
ICAC Report p 59.
ICAC Report p 60.
ICAC Report p 40.
ICAC Report p 82.
ICAC Report p 87.
ICAC Report p 6.
DWS 43.
Bundle 1163. (Media Release 4.8.22.)
Bundle 1159-1160 (Letter from Inspector, 8.11.23.)
DWS 41.
Reply PWS 10-11.
Tcpt 32.15 - 33.10
Tcpt 46.43
Tcpt 48.45.
DWS 59. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2024

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (29 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (16)