Waterhouse v Independent Commission Against Corruption

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

1. JUDGMENT of THE COURT delivered by BASTEN JA: The substantive matter before the Court is an application for leave to appeal against judgments given by Garling J in the Common Law Division on 2 April 2014 [1] and 2 April 2015. [2] The application was before the Court on 10 September 2015 when the Court directed the applicant to file a revised draft notice of appeal, limited to specified grounds. It directed that the application for leave to appeal, limited to the identified grounds, be the subject of a concurrent hearing of the leave application and the substantive appeal. The orders of this Court were made on 30 September 2015. [3] It will be necessary to refer to other aspects of that judgment in due course.
2. By a motion filed in 12 October 2015, the applicant sought to reagitate the whole of the matter disposed of on 30 September 2015, with the exception of the applicant's recusal motion and so much of the orders as were favourable to the applicant. On 23 November 2015 the Court declined to reopen its earlier judgment and dismissed the motion. [4]
3. On 7 December 2015 the applicant filed a draft notice of appeal limited to the grounds identified in the earlier judgment of this Court. However, on 12 February 2016 he filed a notice of motion seeking an order (8) setting aside the judgments of the Court of 30 September 2015 and 23 November 2015. The effect of that relief would be to allow the applicant to pursue, in addition to the four grounds now before the Court, the numerous other grounds contained in his original draft notice of appeal.

(a) orders sought

1. The notice of motion filed on 12 February joined as respondents both the Commission and the Attorney General. The Attorney had been dismissed from the proceedings in 2015, but was sought to be bound by certain orders involving the appointment of acting judges to hear the application for leave to appeal and the proposed appeal. The motion should be addressed before dealing with the merits of the application for leave to appeal.
2. First, proposed orders 1-3 invited the whole of the Court, "as an institution and each and every collegiate member of it", to disqualify himself or herself from dealing with the matter. It was proposed that the President then request the Attorney to make special arrangements for the selection, appointment and commissioning of judges "who are beyond political influences of Australian politicians and politics and who cannot be found to have any self-interest in the outcome of the proceedings".
3. The same relief had been sought by a notice of motion dated 19 August 2015 and addressed in the first judgment of this Court. [5] No specific error has been identified in the Court's reasons for dismissing the motion on that occasion; the judgment should not be reopened to reconsider that issue. The relief sought in proposed orders 1-3 of the notice of motion now before the Court should be refused.
4. Proposed orders 4, 5 and 6 related to directions. Proposed order 4 sought to have directions given on 16 December 2015 vacated. The directions were twofold, (a) listing the matter for directions on 24 February 2016 and (b) requiring the appellant to file written submissions by 17 February 2016. Proposed order 5 would have had the Court dispense with the limits on the length of submissions. Proposed order 6 would have dispensed with limitations on authorities to be provided pursuant to the Practice Note. (In fact, the Practice Note was not complied with in that the applicant did not file a list of authorities.) The effect of the directions is now spent, the matter being before the Court for a final hearing.
5. Proposed order 7 was that the appeals be allowed and the judgments of Garling J be set aside: that is the final relief sought in the appeal proceedings and is not appropriately sought by way of motion. That order should not be made.
6. Proposed order 8 sought to have the judgments of this Court referred to above set aside. It will be addressed in the light of the evidence sought to be read on the motion.
7. Proposed orders 9-15 sought final relief by way of a declaration and various orders in the nature of mandamus: as submitted by counsel for the respondent, most of the orders would not be made in judicial review proceedings in any event, unless the Commission was required by statute to act in a particular way or, in the circumstances, to exercise a statutory discretion in a particular way. [6] In any event, being final orders, such orders are not to be obtained on a notice of motion.
8. Proposed orders 16-18 involve special orders as to costs, which could only arise in the event that the applicant is successful in obtaining final relief, with the exception of proposed order 18 which concerns the costs of the motion. The question of costs will turn on the fate of the other parts of the motion.

(b) evidence in support of order 8

1. To the extent that the motion sought to set aside the earlier judgments of the Court, on the basis of either actual bias or a reasonable apprehension of bias, the applicant was entitled to adduce evidence in support of his claims. The principal affidavit was that of the applicant himself dated 27 April 2016. The affidavit ran to 97 paragraphs, with two exhibits and 30 annexures. Much of the material was discursive and recounted events which were irrelevant, or summarised the contents of documents, which were annexed. Other parts recounted the contents of documents which had been annexed to an affidavit of 13 January 2014, which formed part of the evidence read before the primary judge.
2. The applicant also sought to read a further affidavit sworn on 4 May 2016 which annexed correspondence with RSB Client Services in respect of the sound recording of the hearing in September 2015, and with the Crown Solicitor's Office, in respect of matters not presently relevant.
3. Finally, the applicant sought to read three affidavits of persons who stated that they were present in court on 10 September 2015 and heard things said in the course of argument which were not recorded in the transcript. Each of the affidavits was sworn or affirmed on 16 or 17 May 2016, that is some eight months after the date of the hearing and shortly after the applicant had had an opportunity to listen to the sound recording of that hearing.
4. Counsel for the respondent did not object to the reading of the affidavits, nor did he seek to cross-examine the deponents. He did, however, read an affidavit filed on behalf of the Commission, prepared by Eunice Walsham, Manager, Business Support, Reporting Services Branch within the Department of Justice, who identified the arrangements for recording the proceedings, preparing the transcript and storing the sound recording. She was cross-examined by the applicant. The effect of the cross-examination was to confirm that which appeared from the contents of her affidavit, namely that it was not based on information supplied by the officers who had undertaken the physical activities of operating the sound recording equipment on 10 September 2015, transferring the file to the Department's server and preparing a transcript from the recording.
5. The Court did not rule on admissibility, noting that no objection was taken as to form, but reserving to this judgment rulings on relevance. Passages referred to in the following discussion of the allegations as to bias cover all the evidence relevant to that matter, which should be admitted. Otherwise the affidavit evidence should be rejected, despite no objection being taken. Much of it was argumentative and the remainder irrelevant; some of the language used was scurrilous and unnecessarily offensive. No purpose is to be served by identification of the rejected material.

(c) actual bias and apprehension of bias

1. The amended statement of claim filed in the Common Law Division on 27 June 2013 referred to one current member of the Court, Justice Michael Adams, and a previous President of this Court (now the Chief Justice of the Federal Court of Australia) Justice Allsop. Each had appeared as counsel for other members of the Waterhouse family, opposing relief sought by the applicant and his mother (since deceased) in equity proceedings heard before Kearney J over an extended period between September 1989 and November 1991. [7] Neither has at any stage sat on any case involving the applicant. Their presence on the Supreme Court was relied upon in support of the proposition that no member of the Court could deal with these proceedings because all had (or were still) associating with those judicial officers.
2. Paragraph 44 of the applicant's affidavit alleged that the primary judge "did not disclose to me the fact that he was not only appointed by the Labor Party Government to the Bench but was also the recipient of substantial and very lucrative Labor Party government briefs and commissions before his judicial appointment." The affidavit also asserted that Garling J had "concealed" his "close friendship with" the former President and Adams J.
3. The references to non-disclosure and concealment are, ultimately, immaterial. In Ebner v Official Trustee in Bankruptcy [8] the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ stated: "As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying."
4. After noting that the practice is not helpfully described in terms of "rights and duties", the joint reasons continued: [9] "To describe the practice of making disclosure as a matter of right or duty may distract attention from the fundamental question to be answered which is whether the reasonable apprehension of bias test is established. … Inquiring whether the moving party was denied some opportunity to make submissions on the question of disqualification to the judge in question is irrelevant. The question of disqualification can and will be litigated fully in the appeal or application for prerogative or like relief and no separate question of denial of procedural fairness could arise."
5. It is appropriate to note the context in which the complaint of apprehension of bias arises. For at least two decades, the applicant has believed that he and his mother were unsuccessful in the proceedings before Kearney J because other members of his family had used their relationship with the former Premier, the late Neville Wran QC, to have the matter heard by Kearney J, who had been appointed for the purpose of ensuring that the applicant and his mother were unsuccessful. Every step thereafter perceived to be disadvantageous to the applicant's pursuit of these allegations has been, in his mind, the working out of an amorphous conspiracy or, to use his term "confederacy", with expanding tentacles.
6. The applicant separately alleged that all members of the Supreme Court are tainted and unable properly to hear his cases, because they are committed to protecting the institution of the Supreme Court and cannot bring a mind free of pre-judgment to his allegations. That submission would seem to render irrelevant the identity of the government which appointed a particular judge and questions of association between members of the Court. Nevertheless, it may be inferred that the applicant seeks to adopt a secondary position, in respect of which those matters are significant.
7. The applicant has misconceived the relevance of the associations relied upon. First, there are many institutional litigants who have numerous cases in the Supreme Court. It is common for individual judges to have acted for such litigants whilst at the Bar. They may or may not recuse themselves in relation to litigation involving former clients, depending upon the nature of their relationship and other relevant factors. The suggestion that colleagues who have not acted for such litigants are disqualified because of their friendship or association with those who have so acted has never been raised in the past. It may confidently be stated that there is no possibility that a fair-minded observer might think that such an association might lead a judge to fail to deal impartially with litigation involving that party. Nor does it make a difference in general terms if the institutional litigant is the government, an arm of the government or a private individual or corporation. Indeed, there being, in the language of Ebner, no "serious possibility that [these facts] are potentially disqualifying" no criticism could be made of the primary judge for failing to disclose such of the matters as are alleged in the affidavit as may be true.
8. The second matter which was the subject of evidence involved allegations that each member of the Court hearing the leave application on 10 September 2015 had conducted themselves in the course of the hearing in a manner which was said to give rise to a reasonable apprehension of bias.
9. The applicant referred to the express disclosure at the commencement of the hearing on 10 September by the presiding judge on the earlier occasion (Basten JA), that he had held an appointment as an Assistant Commissioner of the Independent Commission Against Corruption in 2003-2004 for the specific purpose of investigating certain dealings with the Koompahtoo Local Aboriginal Land Council. He said, "I don't know whether that causes you any concern." [10]
10. Before the applicant responded, Sackville AJA noted that he had also held a position as an Acting Commissioner in about 1992 in relation to an inquiry into the State Rail Authority.
11. In response, the applicant had said: "Yes. And I understand you, Justice Emmett, are related by marriage to Sir Laurence Whistler Street."
12. In the course of the hearing on 10 September, the applicant did not return to the disclosures in relation to appointments as Acting Commissioners of the Commission. In his affidavit of 27 April 2016, the applicant noted that in 2003-2004 the Commissioner was Ms Irene Moss and that she and other senior staff "were allegedly corruptly covering up the [applicant's] complaint." It was said that, "Justice Basten would have to have had, at least, a professional working association with these people." It was also said that he "would have been very familiar with Messrs Cripps and Ipp" (former ICAC Commissioners) and would have sat with former Justice Ipp, former President Allsop and Chief Justice Spigelman "an untold number of times on appeals", stating that they would "have been close colleagues."
13. In the passage quoted above from Ebner, it is noted that one possible consequence of a failure to disclose is that the question of disqualification may only then be dealt with on appeal or review of the judgment given. In such circumstances, the question will be dealt with by a Court viewing the merit of the allegations afresh. That is not this case: the Court is presently engaged in a continuation, albeit with two members who were not part of the original Bench, of the same application for leave to appeal which was before the Court on 10 September 2015. The same issues with respect to apprehension of bias arise now as they did then, with respect to Basten JA. Those questions are dealt with by him in a separate judgment. [11]
14. The case with respect to Sackville AJA is clear. There was no suggestion that Justice Sackville had a professional working association with the Commissioner and staff who were present in 2003-2004. Nor was it alleged that he had sat on this Court with former Chief Justice Spigelman or President Allsop or Ipp JA, although there would have been occasions when he sat with the former President. These circumstances, nevertheless, are no stronger than those relating to the primary judge and do not give rise to a reasonable apprehension of bias, in accordance with the well-established test.
15. The applicant further relied upon conduct in the course of the hearing on 10 September as demonstrating a reasonable apprehension of bias on the part of each member of the Court. To understand the complaints, it is convenient to refer not only to the applicant's affidavit of 27 April, but also to three affidavits filed by persons who said they were in Court on that day and heard or observed particular conduct. Because, in relation to each member of the Court, the applicant alleges that things were said which do not appear in the transcript, it is also necessary to deal with his allegation that the sound recording of the events of that day has been tampered with, with the implication that each member of the Court is suspected of attempting to pervert the course of justice.
16. The allegations made were scurrilous and, as will appear, not supportable on the evidence. That they come from a person admitted and eligible to practice as a solicitor of the Court is disturbing, but is part of a litany of similar allegations based on inferences drawn from very limited primary material.
17. With respect to Acting Justice Sackville, the applicant's affidavit contained the following statement: [12] "During this hearing I raised the appeal ground that Justice Garling had perverted justice in his judgment and had demonstrated actual bias towards me and my case and had lied in his judgment. Justice Sackville pointed his finger at me at said 'You are warned.' I replied 'It is easy to prove. I only have to lay the ASOC [amended statement of claim] down beside the judgment ….' This exchange does not appear in the transcript."
18. The applicant's daughter, Rebecca Mary Askew, provided an affidavit dated 17 May 2016. In the course of the affidavit she stated: "Justice Sackville … said to my father, 'You are warned!'. I don't remember what it was in relation to."
19. David Bruce East, who states that he was in court for the hearing and had been working as a "paralegal assisting Mr Waterhouse on his case since late 2011" gave evidence in almost identical terms to the evidence of the applicant.
20. With respect to the presiding judge, each of the applicant, Mr East and Ms Askew recorded hearing the applicant ask for an adjournment and the presiding judge respond, "You're not going to get it". With respect to the affidavit of the applicant, the exchange is slightly longer and read as follows: [13] "I was not invited by the Court to apply for an adjournment to carefully consider these disclosed relevant facts. I did shortly after this exchange ask for an adjournment but Justice Basten just said 'You're not going to get it … put it (my case for disqualification) in a nutshell.' This exchange does not appear in the transcript. The words 'in a nutshell' do appear but the exchange is very different to my recollection."
21. With respect to Emmett JA, the applicant said that after he had raised the question of his relationship with the former Chief Justice Sir Laurence Street, who was said to be "a good friend of Bill Waterhouse and the late Neville Wran", Justice Emmett "unguardedly, said 'What's that go to do with me' but these words do not appear in the transcript."
22. In Ms Askew's affidavit, the remark is put slightly differently, namely that, "Justice Emmett said in reply, '… what does my father-in-law have to do with me? I don't answer to him and he doesn't answer to me." Because the latter sentence does appear in the transcript, it is clear where the statement is said to have come. In no other case is the context provided in the affidavits of any assistance in locating the alleged omission at a particular portion of the transcript, with the possible exception of the alleged application for an adjournment. The applicant said in the course of an exchange with Sackville AJA, "Well then, perhaps this matter should be adjourned", to which that judge replied, "No, perhaps you should put your propositions in a way that enables the Court to perform its job." [14]
23. The applicant's affidavit of 4 May 2016 attached two letters, the one relevant for present purposes being that of 28 April 2016 to RSB Client Services, which was responsible for operating the sound recording equipment and preparing the transcript. The letter contained demands and threats. It was not the first letter sent to them. According to the affidavit of 27 April 2016, the applicant wrote to RSB Client Services on 11 April 2016, a copy of the letter being annexed. That letter referred to an email, apparently sent on 25 February 2016 and made the following statement: "In my email I gave 3 examples of dialogue, spoken by each of their Honours, which had not been transcribed. I wanted to check the recording against the transcript. I did not believe it likely that a transcriber would make so many serious errors especially errors that all went to the one issue, that is actual bias and prejudgment by each of the justices concerned and which were ironically spoken by their Honours when I was asking the Court to disqualify itself for bias. Words which would have greatly embarrassed their Honours if an accurate transcript was put before the High Court on an appeal for refusing to disqualify themselves and their Court for actual bias and being a party to the cause."
24. As appears from the transcript, apart from the generic assertion that the whole of the Supreme Court was disqualified, and despite the Court seeking clarification, the applicant in fact never made an express application that any one or more of the bench disqualify himself. However, having satisfied himself that the transcript accurately reflected the sound recording, the letter continued: "But that meant the CDs were obviously edited by a person or persons yet to be identified. Further that person or persons had only one purpose. That is to remove from the record only those words which embarrassed and exposed each of their Honours to the accusation of bias or prejudgment. There is no possibility that I am mistaken as to the missing words spoken by their Honours. Those words were of great significance to me. Moreover there were many witnesses. Three of them are known to me and have all confirmed the accuracy of my recollection."
25. The letter of 28 April 2016 was more explicit, stating: "I do appreciate the extraordinary nature of the matter but your duties under the law and to me as a client litigant are clear. I am entitled to be provided by you with a true transcript and not one edited by corrupt judges to remove material evidence for the purpose of perverting justice against me. You must not lend yourself to such criminal activity. There can be no doubting what has happened. You are in possession of evidence of a serious indictable offence and corruption by high ranking public officials."
26. The affidavit sworn by Eunice Walsham, Manager, Business Support within the Reporting Services Branch of the Department of Justice explained the system by which a sound file was transferred to a contractor for the preparation of the transcript. She further stated: "6. Sound recordings of all hearings are automatically transferred to our external server (Thumper) each evening and only RSB staff have access to this server. No external contractor has access. … 10. So far as I am aware, the RSB has only one version of the sound recording and transcript of the hearing of 10 September 2015 in its possession, being the versions exhibited to this affidavit. So far as I am aware, the RSB has never had in its possession any version of the sound recording containing more material than the version exhibited to this affidavit. Given my position at RSB, if any correspondence was sent to Client Services or any other person in RSB, it would have been forwarded to me for a response. 11. So far as I am aware, the RSB has not received any communication from the three Judges of Appeal who sat on this matter concerning the transcript or the sound recording. So far as I am aware, the RSB has not at any time been asked by any person to edit the sound recording. Given my position at RSB, if any communications were received from the three Judges of Appeal by Client Services or any other person in RSB, it would have been forwarded to me for a response. 12. So far as I am aware, the contractor who was booked to record the hearing on 10 September 2015 has not received any communication from the three Judges of Appeal who sat on this matter concerning the transcript or the sound recording, or been asked by any person to edit the sound recording. I make that statement on the basis of the enquires I have made of the contractor."
27. So far as the statement said to have been made by Emmett JA is concerned, that said not to have been recorded, was not materially different from statements which were recorded and appear on the transcript. Because the applicant had raised his association with the former Chief Justice, it was inferred that he had been invited to disqualify himself. Emmett JA provided a brief judgment, delivered on 30 September 2015, outlining his reasons for declining to take that step. Nothing has been said on the further hearing to cast doubt upon the decision taken by Emmett JA; there was nothing in the transcript which might have given rise to an apprehension in a reasonable bystander that Emmett JA might not have determined the application for leave otherwise than according to law and on the basis of the material presented to the Court. Accordingly, the suggestion that he might have wished to retract (or even delete from the record) something he had said is fanciful to the point of being bizarre.
28. With respect to the statement of the presiding judge, it is said to be a response to an application for an adjournment. Even assuming an application was made and refused, that would have provided no basis for a reasonable apprehension of bias.
29. The alleged conduct of Sackville AJA is even more puzzling. The context in which the words were said to have been uttered was not recalled by any witness. Nor were they consistent with anything that happened in the course of the hearing, as recorded in the transcript. It is therefore impossible to know whether and how, based on the mere words allegedly used, they could have given rise to a reasonable apprehension of bias.
30. As counsel for the respondent correctly noted, these allegations raised two issues, namely (a) whether the words allegedly used created a reasonable apprehension of bias and (b) whether the allegation of deleting words from the sound recording of the hearing to avoid embarrassment gave rise to a reasonable apprehension of bias.
31. The way in which the court should deal with a dispute as to the primary facts from which a reasonable apprehension of bias is said to arise was discussed in CUR24 v Director of Public Prosecutions. [15] Meagher JA (with whom Whealy JA agreed) stated: [16] "The relevant test does not require that a finding first be made as to whether something said reflected a view formed or whether such a view was in fact likely to influence the outcome of a particular matter. The circumstances to which the fair-minded observer must be taken to have regard include those possibilities or likelihoods which will reflect the plausibility of the material relied upon to establish the relevant circumstances."
32. My reasons addressed various circumstances, without seeking to lay down guidelines as to how the Court should deal with disputed evidence. However, relevantly for present purposes, I observed: [17] "There will also be cases where there is reason to believe that the basis of the complaint is insubstantial, perhaps because the witness or the facts asserted lack self-evident credibility, in which case it may be desirable that any evidential dispute be resolved."
33. The applicant submitted that the evidence given by him and three witnesses who provided affidavits read by him, should be accepted as to what was said, but was not recorded in the transcript. Not only were they not cross-examined, but the respondent did not seek to contradict them by evidence from its counsel or its solicitor, who were present in court at the time.
34. While it is true that separate issues are raised in the terms identified by counsel for the respondent, the answer to the first provides a substantial basis for answering the second. Thus, assuming the words allegedly spoken but not recorded were spoken, they did not satisfy the test that a fair-minded observer might think that they judge uttering the words might not deal with the application before the court fairly and impartially, for reasons already given. It follows that no judge would have had any reason to be embarrassed about such words appearing in the transcript and, as already noted, some of the statements were to similar effect as statements in fact recorded.
35. Given that no judge would have had any reason to seek to have material deleted, the possibility that that occurred is entirely fanciful. That conclusion is consistent with the evidence of Ms Walsham that no request to delete anything from the transcript was made and that, had it been made, she would have been advised of it. Allegations of actual bias and of a reasonable apprehension of bias arising from the conduct of members of the Court at the hearing on 10 September 2015 must be rejected, as must the allegations of interference with the sound recording of the hearing.
36. The passages in the evidence referred to above should be admitted for the limited purpose of demonstrating a factual basis for establishing a reasonable apprehension of bias. Otherwise they are not relevant to the proceedings before this Court. Other evidence, not before the trial judge, is rejected.

(d) conclusions - motion

1. As none of the orders sought in the motion should be made, the notice of motion should be dismissed. Costs of the motion should follow the event.

Determination of primary judge

1. The primary judge dealt first with a submission that the Commission was obliged to investigate the applicant's complaint. For reasons which conform to those addressed at [90]-[91] below, he rejected the submission. [18] The primary judge concluded that, the Commission being under no obligation to investigate, an order requiring the Commission to investigate could not properly be made.
2. The judge inferred that there was an alternative claim for relief on the basis that the decision had been "unreasonable, in the legally relevant sense." [19] The assumption that such an argument was relied on was favourable to the applicant and may be accepted. (For reasons discussed below, it may not be the only analysis which was implicit in the applicant's submissions.)
3. The primary judge then considered the concept of unreasonableness as a ground of review, with particular reference to the reasoning of Gageler J in Minister for Immigration and Citizenship v Li. [20] The judge derived from that discussion three conclusions, namely that (a) the test of unreasonableness is a stringent one and the Court "must be vigilant to guard against undertaking a merits review", [21] (b) the test may be applied by looking at the reasons given by the Commission for its decision [22] and (c) the Court may consider whether the decision was within the range of decisions reasonably open to the Commission. [23]
4. The judge's reasons on this point were succinctly stated: "104. One way in which the reasonableness of the conduct of the Commission in declining to investigate the 2012 Complaint can be understood, is to look at the letter which sets out the basis upon which the Commission refused to investigate further. 105. I have earlier referred to, and summarised parts of, that letter. Shortly put, the letter indicated that the 2012 Complaint and the 99 Complaint were similar, that it had previously, in a considered way, declined to investigate the 99 Complaint and that there was nothing of substance in the 2012 Complaint, which was sufficient to cause it to change its mind. 106. Such an analysis is not on its face illogical or irrational. Nor is it on its face unreasonable in the legal sense of that word."

Issues on appeal

1. The orders made by this Court on 30 October 2015 confined the application for leave to appeal to the following grounds: 3 (ii) His Honour erred in holding that the central foundation event on which the Plaintiff's case was based was about a former politician who had not been in office for 20 years, a judge who was now dead and a case the outcome of which litigation had concluded many years before. His Honour should have found that the Plaintiff's case involved serious and systemic corruption that had continued unabated for decades and which was still current, continuing and expanding. (iii) His Honour was in error when he held the ICAC's letter of 16 October 2012 was a considered logical, rational and reasonable response. 4 (v) His Honour erred in holding to the effect that there was an onus on the Plaintiff to prove that the Commission, at the relevant time, had adequate funds to enable it to undertake an investigation of the kind that he submits ought to be required. His Honour should have held that in the light of the fact the Respondent ICAC had not raised it as a defence nor put on any evidence in support and had been able to fund the Obeid inquiries and the Campaign Funds inquiries that such a consideration was irrelevant. (vii) His Honour was in error in that he misapplied the rule that mandamus will only be granted against investigative bodies in exceptional circumstances. He should have held that the uncontested alleged facts which included allegation of bad faith and illegal purposes and all the other circumstances of the case were exceptional and obliged the court to grant the compulsory orders sought by the Plaintiff.
2. The two paragraphs of ground 3, read together, involved a number of propositions including the following: 1. the decision of the Commission recorded in the Commission's letter of 16 October 2012, declining to investigate the applicant's complaint, in circumstances where the complaint alleged serious and systemic corruption which had continued for decades and was continuing, was not logical, rational and reasonable; and 2. the reasons given for the decision in the letter of 16 October 2012 were false or were not logical, rational and reasonable.

(a) complaint based on assumed facts

1. When the matter was before this Court in September 2015 the Court was hampered by the failure of the applicant to place before it material which was relevant and arguably necessary to address his challenge to the judgment below. The material upon which the applicant relied included the extensive (900 page) factual complaint lodged with the Commission and the history of his dealings with the Commission. His primary criticism of the way in which the case was dealt with in the Common Law Division was that the primary judge failed adequately to address the lengthy pleading in the amended statement of claim in his judgment. That approach was also reflected in the orders sought, both from the primary judge and from this Court, which included orders requiring the Commission to investigate the subject matter of the complaint.
2. According to the applicant, his case for judicial review had two limbs. That is, it sought final orders in relation to what the Commission was required to do with his complaint, and did not merely seek, in a conventional sense, judicial review of the decision of the Commissioner not to investigate. In respect of the first limb, he propounded two propositions. One was that, because no defence had been filed by the respondent, the matter should have proceeded before the primary judge on the basis that all the allegations in the amended statement of claim were accepted as true. The second proposition was that, because they were true, the Commission could not deny them, either because it enjoyed no privilege against self-incrimination, pursuant to s 187 of the Evidence Act 1995 (NSW), or because it was bound to admit them pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 14.23, requiring that a defence be verified.
3. Ground 3(iii) as originally drafted, included a sentence asserting that the allegations should be taken to be true and that, accordingly, the reason for declining to investigate was "false". That allegation was excluded as a result of the judgment of 30 September 2015. However, in part at least by reference to the substantive relief sought in the notice of motion, the applicant presented arguments based on this allegation. Without repeating what has already been said, it is desirable to address the further arguments presented without demur from the respondent or the Court.
4. In this Court's decision of 30 September 2015, the point was made at [27] that the allegations in the statement of claim had been treated as true in the sense that they recorded a complaint that had been made and not properly investigated. The reasons continued: "There was, perhaps, a reason why the allegations themselves should have been set out in the pleading, but that was not because their truth was in issue, but rather to establish that they differed in some material respect from the allegations in the 1999 complaint."
5. This approach was conventional in relation to proceedings by way of judicial review; further, it was the way in which the primary judge had understood the case presented before him. On the first day of the hearing, the primary judge summarised his understanding of the nature of the applicant's pleading in the following terms: [24] "… He seeks to prove in his statement of claim that he has made such a complaint including all of these allegations of serious corrupt conduct about the people and bodies and so on that he's named and he then seeks to say that in light of the content of his complaint, which he refers to throughout as 'the complaint', the ICAC had a duty of the kind which he seeks … [n]amely to investigate and hold a public inquiry and he says in light of the fact that the ICAC has on more than one occasion declined to do that, … that the Court should made the orders which he seeks. Now, I do not understand that Mr Waterhouse is going to adduce any evidence that proves to the satisfaction of any presiding judge the assertions in his 900-page complaint, on the contrary as I understand Mr Waterhouse's claim in this Court [is that] this Court shouldn't go into that but rather that's the basis for an order that the ICAC undertake its investigation."
6. The applicant then said that the judge had understood the matter "perfectly". [25]
7. That understanding was reiterated on the following day [26] and was an entirely uncontroversial understanding of how a judicial review would proceed. Thus, the only issue before the Court was whether the Commission had acted lawfully in declining to investigate the complaint.
8. Both at the previous hearing in this Court and at the further hearing, the applicant sought to press what has been outlined above as the first limb of his claim, which concededly went beyond conventional judicial review. To that end, he asserted that the failure of the Commission to file a verified defence, coupled with his belief that it could not properly take that step, meant that it had admitted the truth of the allegations contained in the complaint, as articulated in the amended statement of claim. The next step in the argument was that if the factual basis of the complaints was accepted, there could be no basis for refusing to investigate them. On that approach, the primary judge (and now this Court) should grant substantive relief, that is, not merely that the Commission reconsider its decision, but that it be ordered to investigate his complaints.
9. The reasoning in support of this submission was encapsulated in a paragraph which in part quoted and in part paraphrased a passage from the opinion of Lord Bingham of Cornhill in Regina (Mullen) v Secretary of State for the Home Department [27] which, in the original, read as follows: "The jurisdiction exercised by the Court of Appeal (Criminal Division) when quashing the conviction of Mr Mullen was based on the reasoning of the House in R v Horseferry Road Magistrates' Court, Ex p Bennett. [28] That case concerned a stay of proceedings. There had been no trial. But there had been unlawful conduct by the authorities which resulted in the applicant's return to this country where he was arrested and charged. The ground upon which the House held it right to intervene was explained by Lord Griffiths, who gave the leading opinion, at pp 61-62: 'In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the Court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.' He concluded, at p 64: 'The High Court in the exercise of its supervisory jurisdiction has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if satisfied that it was in disregard of extradition procedures it may stay the prosecution and order the release of the accused.' Lord Hoffmann correctly characterised this salutary jurisdiction, in my respectful opinion, when he said in R v Looseley [29] : 'The stay is sometimes said to be on the ground that the proceedings are an abuse of process, but Lord Griffiths described the jurisdiction more broadly and, I respectfully think, more accurately, as a jurisdiction to prevent abuse of executive power.'"
10. The applicant sought to extrapolate from that statement of principle, applied to protect the criminal processes of the courts from executive abuse, a more general power (and obligation) to control alleged abuses by the executive including, in this case, through failing to take action which, on the applicant's case, should have been taken.
11. It is not necessary for present purposes to explore the inter-relationship between the exercise of the Court's supervisory jurisdiction in relation to criminal proceedings and its jurisdiction with respect to administrative action. It is sufficient to say that it was the former which was in issue in Mullen's case; it is the latter which is called on in the present case. The function of the court in this circumstance is subject to the allocation of power according to statute. In the canonical statement of Brennan J in Attorney-General (NSW) v Quin: [30] "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
12. For those reasons, in addition to those given in the earlier judgment of the Court, there is no power in a court exercising the supervisory jurisdiction over the Commission, pursuant to s 69 of the Supreme Court Act 1970, to order the Commission to investigate, nor to make declarations to similar effect.

(b) unreasonable decision/reasons

1. The ground, which the trial judge addressed in passages set out at [57] above, relate to the alleged unreasonableness of the Commission's decision to decline to investigate and the alleged inadequacy of the reasons given for that decision in the letter of 16 October 2012.
2. It is necessary to commence the inquiry on this application by noting the statutory context in which the supervisory jurisdiction of the Supreme Court was invoked. The Independent Commission Against Corruption Act 1988 ("the ICAC Act") commenced on 13 March 1989. It has been amended in numerous ways over the years, but only in one respect which is relevant to the present proceedings. The principal functions of the Commission include the investigation of any circumstances implying, or any allegations that, corrupt conduct may have occurred, may be occurring or may be about to occur. [31] The Commission is to regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns. [32] It is entitled to conduct an investigation on its own initiative or on a complaint made to it. [33] The definition of "corrupt conduct" is not limited to, but includes, the conduct of a "public official". [34] A public official includes numerous persons having public official functions or acting in a public official capacity, and includes a judge.
3. Until 6 June 2005 the Act made provision for investigations in the following terms relevant to the present case: 20 Investigations generally … (3) The Commission may, in considering whether or not to conduct, continue or discontinue an investigation (other than in relation to a matter referred by both Houses of Parliament), have regard to such matters as it thinks fit, including whether or not (in the Commission's opinion): (a) the subject-matter of the investigation is trivial, or (b) the conduct concerned occurred at too remote a time to justify investigation, or (c) if the investigation was initiated as a result of a complaint - the complaint was frivolous, vexatious or not in good faith. (4) Before deciding whether to discontinue or not to commence an investigation of a complaint, the Commission must consult the Operations Review Committee in relation to the matter.
4. From 6 June 2005, a further provision was added in s 20 requiring reasons: [35] (5) If the Commission decides to discontinue or not to commence an investigation of a complaint or report made to it, the Commission must inform the complainant or officer who made the report in writing of its decision and the reasons for it.
5. The Operations Review Committee referred to in s 20(4) was established under Pt 6 of the Act. Its functions included advising the Commissioner as to whether the Commission should investigate a complaint. [36] The Committee comprised the Commissioner, an Assistant Commissioner, the Commissioner of Police, a person appointed by the Governor on the recommendation of the Attorney General and four community representatives, also appointed by the Governor. [37] Part 6 was repealed and s 20(4) removed from 26 May 2006. [38] The Committee thus had a role to play in relation to the first complaint (lodged in 1999) and the second (lodged in 2000), but not the 2012 complaint.
6. Because s 20(5) only commenced on 6 June 2005, there was no statutory obligation to give reasons for declining to investigate the first complaint, nor the second complaint. The requirement for reasons did, however, apply with respect to the refusal to investigate the complaint the subject of these proceedings, which was lodged in 2012.
7. What will be required of the Commission in giving such reasons will depend upon the nature of the discretion vested in it and the circumstances of the particular case. It is clear from the terms of s 20(3) that a matter which is, in the Commission's opinion, trivial, too remote in time or frivolous, vexatious or not made in good faith, need not be investigated. It is clear, however, that the power of the Commission to determine what matters to investigate and what not to investigate is not limited to such considerations; the discretion is not expressly subject to any constraints.
8. It is trite to say that the discretion is not entirely unconstrained. The power conferred on the Commission must be exercised in accordance with the subject matter, scope and purpose of the statute. [39] The Commission must not decide to investigate, nor decline to investigate, for reasons which are extraneous to its statutory functions. Those are identified, in broad terms, in the statement of the principal objects of the Act (s 2A) and by inference from the definitions, including that of "corrupt conduct" in Pt 3.
9. The legal principles applied by the primary judge, derived from Li, were identified at [56] above. They were not directly challenged, nor were they challengeable in their terms. Nevertheless, it is helpful to identify three points of elaboration. The first is that the provision of reasons can affect the exercise of judicial review in a number of ways. Twenty-six years ago, in Australian Broadcasting Tribunal v Bond, [40] Mason CJ, having noted that there was no error of law simply in making a wrong finding of fact, continued: "Similarly, Menzies J observed in Reg v The District Court; Ex parte White: [41] 'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law.' Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."
10. The process of drawing an inference will be revealed by the reasons given by the decision-maker; whether the inference was reasonably open requires the reviewing court to undertake its own analysis of the material before the decision-maker. Although the distinction can readily be seen as involving separate exercises, as a practical matter the line may be blurred. Further, the current emphasis on the test of "reasonableness" itself tends to blur the distinction. The point is of some significance in the present case because, having found that the reasons themselves were not on their face illogical or irrational, [42] the judge then had regard to matters not identified by the Commission in its reasons to determine whether the outcome was "unreasonable".
11. This consideration raises a further matter, namely that the exercise of testing for unreasonableness may depend upon whether the decision fixes a point within a range of available results (as in sentencing an offender) or whether, as in the present case, it involves a binary choice.
12. Finally, the nature of the decision may be critical to this analysis. Most of the cases discussing unreasonableness as a ground of review deal with the determination of a matter before a tribunal or other decision-maker. This case involved a refusal to investigate. Thus, the Commission had not made findings of fact, nor drawn inferences from its findings, in order to reach the decision that it would not investigate. (An earlier decision, with respect to the second allegation referred to above, had followed a preliminary investigation.) In this situation, there was particular force in the second of two propositions articulated by Gageler J in Li in the following passage: [43] "Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.
13. In the present context, one may understand "policy" to encompass the broad questions of public interest which must attend every decision by the Commission as to whether or not to investigate a complaint.
14. It was relevant to the last consideration that the primary judge took judicial notice of the fact that the Commission "has a limited budget" and that budgetary constraints were relevant to any such decision. The primary judge then noted that there was no evidence before the Court as to whether budgetary constraint was a relevant factor in respect of the particular decision under review, further noting that the applicant had not "proved" that the Commission had adequate funds to enable it to undertake an investigation of the kind he sought. [44] It may be objected that such matters were neither required to be proved by the applicant, nor were they a matter for evidence or judicial notice. On the other hand, there was no doubt that limited resources would affect every decision of the Commission, as one aspect of its assessment of varying public interests favouring and disfavouring investigation in particular cases. It was but one of the factors which rendered any assessment of unreasonableness speculative and a powerful constraint on the availability of judicial review.
15. The Commission dealt with the material supplied by the applicant in January 2012 in its letter to him of 16 October 2012. The letter dealt with the material as involving seven separate allegations. The first was the allegation of "judge fixing", involving the appointment of the late Justice Kearney to hear the Supreme Court litigation involving the estate of the applicant's father. The Commission noted that that had been the subject of a preliminary investigation, resulting in a decision conveyed in December 2000 that the allegation would not be pursued further.
16. The second allegation asserted that the complaint in respect of the first matter had been leaked by former Commissioner Irene Moss, via the late Neville Wran, to the then Premier Bob Carr, as a consequence of which it was said that the Commission itself participated in a "cover up". The letter of 2012 noted that the allegation had been investigated but no other action taken and that the applicant had been notified to that effect in April 2001. The third matter involved an allegation that, prior to August 2000, the Labor Government had filled "key positions" in the Commission with "their cronies".
17. It, and other matters, were not raised in the earlier complaint; a reason was given for not investigating those matters, including lack of jurisdiction, and a failure to provide particulars or information to substantiate the allegations which did potentially amount to corrupt conduct. The other allegations post-dated the earlier complaints.
18. The applicant was not satisfied with the brief responses provided as reasons for not investigating his 900 page complaint. Correspondence with the Commission ensued. The principal basis for challenging the decision of the primary judge was his complaint that the Commissioners who had considered his complaints and declined to investigate them were all appointed by a Labor government and had connections with some of the persons involved in the earlier judge-fixing allegation, with the result that the Commission itself became part of the cover up. Because his complaint involved alleged misconduct by the former Commissioner and her staff, there was, he submitted, an obligation on the Commission to refer the matter to an independent investigator to investigate the complaint.
19. As the primary judge correctly noted, the ICAC Act does not, in its terms, impose an obligation on the Commission to conduct an investigation in any circumstances. Rather, the engagement of that function requires the exercise by the Commission of a discretionary power. As noted above, there are circumstances in which such a power may be coupled with a duty to act. As explained by Mason CJ in Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd, [45] referring to the principle that mandamus requires the exercise of a power in a particular way: "But that principle means no more than that the administrator to whom mandamus is directed will be required to perform the legal duty to the public which is imposed by the statute and ordinarily that duty is limited to exercising the statutory discretion according to law, there being no obligation to exercise the discretion in a particular way. However, if the administrator is required by the statute to act in a particular way and in certain circumstances, or if the exercise of a statutory discretion according to law in fact requires the administer to decide in a particular way, so that in neither case does the administrator in fact have any discretion to exercise, then mandamus will also issue to command the administrator to act accordingly."
20. Brennan J expressed the principle in similar terms: [46] "The Commissioner is a public officer vested with a power to be exercised for the purpose, inter alia, of discharging her liabilities. When the power exists and the circumstances call for the fulfilment of a purpose for which the power is conferred, but the repository of the power declines to exercise the power, mandamus is the appropriate remedy even though the repository has an unfettered discretion in other circumstances to exercise or to refrain from exercising the power."
21. The strength of the challenge therefore turns on his allegations of apprehended (or actual) bias on the part of the Commissioners, which will be addressed below.

(c) actual and apprehended bias

1. The challenge was better understood as one involving a reasonable apprehension of bias in the sense that aspects of the material alleged misconduct on the part of a former Commissioner and unidentified officers of the Commission. The applicant said that he had invited the Commission to obtain an independent assessment, but it had declined to do so, without giving reasons.
2. To the extent that the complaint of December 2000 alleged corrupt conduct on the part of the Commissioner, it would have been inappropriate and insufficient to have the Commissioner investigate the allegation. However, the letter of 11 April 2011 stated that the Commissioner "had no contact with the investigation", a factual proposition which could not readily be (and was not) challenged in this Court.
3. So far as a similar allegation of bias might be made with respect to the Commissioner who determined not to investigate the 2012 complaint, the Hon David Ipp AO QC, the only basis for such an allegation depended upon the institutional associations referred to above. Those allegations have not been made good.
4. It follows that this articulation of the complaints against the Commission must be rejected.

(d) failure to consider material

1. There is another way in which the applicant's case might have been presented. On occasions the submissions suggested an attempt to invoke the principle that a failure to address the subject matter of his complaint involved a constructive failure of the Commission to consider whether or not to exercise its power of investigation. Such a ground was not clearly articulated and would have been hard to justify in circumstances where the reasons for the decision demonstrated that the broad scope of the complaints made had been identified and addressed.

(e) refusal of order requiring investigation

1. The submission that there was power to order the Commission to carry out an investigation into the complaint has been addressed in relation to the notice of motion. Such relief is not available. There was, however, a further issue raised on the earlier occasion when the matter was before the Court concerning the following statement in the reasons of the primary judge: "[114] As I have explained earlier, the Commission is not under a mandatory obligation to investigate any complaint which it receives. Thus, there is no public duty or obligation which is unperformed to which an order in the nature of mandamus could be directed. [115] As well, the Commission has considered whether or not to undertake an investigation, and has declined so to do. I have not been persuaded that such a decision is unreasonable in the relevant legal sense. Any order in the nature of mandamus could only reflect the expression of the Court's opinion as to whether it agrees with the decision made, or whether it thinks that it was wrong. That is an inadequate basis for the granting of the orders sought."
2. The statements in [114] and the first two sentences in [115] are unexceptionable. In the earlier judgment of this Court the possibility of error was identified, referring to the third sentence in [115]. On further consideration, that concern appears to be misguided. Although the language used is by no means clear, the preferred reading of that sentence and the final sentence in [115] is a rejection of the proposition that it would be appropriate to grant relief in the nature of mandamus where the only purpose to be served was to express disagreement with the decision, which was not a legally available purpose. In other words, the primary judge should be understood as saying that mandamus was not available in those circumstances; not that it could be available for that purpose.
3. So understood, the passage in question was correct as a matter of law. Even if some other reading were open, it was clearly not a material consideration in the decision of the primary judge to refuse relief. That conclusion had been reached on grounds which have not been shown to be erroneous.

Orders

1. The Court should make the following orders: 1. Dismiss the applicant's motion of 23 February 2016 and order the applicant to pay the respondents' costs of the motion. 2. Grant the applicant leave to appeal from the judgment of Garling J delivered in the Common Law Division on 4 April 2015 on the grounds identified in the draft notice of appeal filed on 7 December 2015. 3. Deem the draft notice of appeal filed on 7 December 2015 to be the notice of appeal and otherwise dispense with the requirements of the rules with respect to service of a notice of appeal. 4. Dismiss the appeal. 5. Order the applicant to pay the respondent's costs of the application for leave to appeal and the appeal.

Endnotes

1. Waterhouse v The Independent Commission Against Corruption (No 2) [2014] NSWSC 1515.
2. Waterhouse v The Independent Commission Against Corruption (No 3) [2015] NSWSC 261.
3. Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300.
4. Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362.
5. Waterhouse, [2015] NSWCA 300, at [2] and [9]-[21].
6. Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 81 (Mason CJ) and 88 (Brennan J, Toohey and McHugh JJ agreeing), referred to below at [88]-[89].
7. Hagan v Waterhouse (1991) 34 NSWLR 308.
8. (2001) 205 CLR 337; [2000] HCA 63 at [69].
9. Ebner at [71].
10. Tcpt, 10/09/15, p 1(34).
11. Waterhouse v Independent Commission Against Corruption (No 3) [2016] NSWCA 134.
12. Affidavit, 27 April 2016, par 55.
13. Affidavit at par 56.
14. Tcpt 10/09/2015, p 11(23).
15. (2012) 83 NSWLR 385; [2012] NSWCA 65.
16. CUR24 at [44].
17. CUR24 at [19].
18. Waterhouse (No 3) at [96].
19. Waterhouse (No 3) at [97].
20. (2013) 249 CLR 332; [2013] HCA 18.
21. Waterhouse (No 3) at [100], [101].
22. Waterhouse (No 3) at [104].
23. Waterhouse (No 3) at [107].
24. Tcpt, 01/04/14, p 48(33)-(50).
25. Tcpt, p 49(5).
26. Tcpt, 02/04/14, pp 50(40)-51(5).
27. [2005] 1 AC 1 at [8].
28. [1994] 1 AC 42.
29. [2001] 1 WLR 2060, 2073 [40].
30. (1990) 170 CLR 1 at 35-36.
31. ICAC Act, s 13(1)(a).
32. IACA Act, s 12.
33. ICAC Act, s 20(1).
34. ICAC Act, s 8.
35. Independent Commission Against Corruption Amendment Act 2005 (NSW), Sch 1[15].
36. ICAC Act, s 59(1)(a).
37. ICAC Act, s 60(1).
38. Independent Commission Against Corruption (Operations Review Committee) Act 2006 (NSW), Sch 1[1] and [2].
39. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J).
40. (1990) 170 CLR 321 at 356.
41. (1966) 116 CLR 644 at 654.
42. Waterhouse (No 3) at [106].
43. Li at [108].
44. Waterhouse (No 3) at [109].
45. (1994) 182 CLR 51 at 81 (references omitted).
46. Commissioner of State Revenue (Vic) at 88 (reference omitted).

Amendments 15 June 2016 - Amending date of decision on coversheet 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: 15 June 2016