Waterhouse v The Independent Commission Against Corruption

Supreme Court of NSW|2014-04-01|Before: Garling J

Judgment

On 21 March 2013, Mr Martin Otto Waterhouse, as plaintiff, commenced proceedings by filing a Statement of Claim, naming the Independent Commission Against Corruption ("the Commission") as the defendant.
On 27 June 2013, pursuant to leave, the plaintiff filed an Amended Statement of Claim, and now proceeds upon that Amended Statement of Claim.
The Amended Statement of Claim seeks 19 declarations with respect to the conduct of the Commission and, as well, eight further orders.
It is convenient to set out two orders which in my assessment are the central orders upon which the plaintiff must succeed to obtain any relief. They are: "20. An order pursuant to s 65 of the Supreme Court Act 1970 requiring the Independent Commission Against Corruption (ICAC) to fulfil its duty and immediately take steps and do all things necessary to initiate a thorough investigation and public inquiry to gather evidence relevant to the allegations contained in 'The Complaint' and for the purpose of determining the matters referred to in s 13(2) of [The Independent Commission Against Corruption Act 1988] according to law; and/or, alternatively

Procedural History

After the Amended Statement of Claim was filed, the Commission filed a Motion on 18 July 2013, seeking summary dismissal of the proceedings, or alternatively, seeking that the Amended Statement of Claim be struck out.
This Motion was responded to by the plaintiff filing a Motion on 1 August 2013, seeking summary judgment upon his claim and other ancillary relief. On 24 February 2014, Mr Waterhouse filed a further Notice of Motion seeking, amongst other things, the disqualification of the judge appointed to hear the matter.
The proceedings were fixed to commence hearing on 1 April 2014. By the agreement of the parties, the disqualification Motion filed 24 February 2014, was heard first. Full argument was taken on the Motion and judgment was reserved until the following day.
On 2 April 2014, for the reasons delivered orally, I declined to uphold the plaintiff's Motion for disqualification, and determined that I would proceed to hear and dispose of the proceedings which were before the Court: see Waterhouse v Independent Commission Against Corruption [2014] NSWSC 424.
At the end of the disqualification argument on 1 April 2014, an issue arose as to whether, in light of the nature of the relief sought by both the plaintiff and the Commission, namely summary relief, in circumstances of little dispute as to relevant fact, the overriding purpose of the Civil Procedure Act 2005 was better served by proceeding to a full hearing of all of the issues rather than dealing with competing Motions, one for summary judgment by the plaintiff, and the other for summary dismissal by the Commission.
On 2 April 2014, having had the opportunity to reflect on the matter, both parties agreed that the Court should proceed to hear and determine the whole proceedings as on a final hearing. Accordingly, it became unnecessary to determine the two Notices of Motion.
In order to ensure that all parties had a complete opportunity to deal with the matter on the basis of a final hearing, the Court proceeded on 2 April 2014 to take oral submissions in addition to the written submissions which had previously been filed. At the conclusion of the argument on that day, the Court made directions which had the effect of ensuring that the defendant filed a Defence to the Amended Statement of Claim, and that each party then had an ample opportunity to supplement their existing submissions, which had been made both in writing and orally, in writing. That further opportunity was granted having regard to the fact that the Court was embarked upon a final hearing and to ensure that neither party was prejudiced.
It was necessary at a further interlocutory hearing, to give a ruling with respect to the verification of the Notice of Grounds of Defence by the Commission: Waterhouse v Independent Commission Against Corruption (No.2) [2014] NSWSC 1515.
Upon the receipt of the final set of written submissions, the Court reserved its decision.
This judgment thus deals with the final hearing of the plaintiff's claims for relief as articulated in the Amended Statement of Claim.
For the reasons which follow, the proceedings must be dismissed with costs.

Legislative Background

The Commission is a statutory body constituted by s 4 of the Independent Commission Against Corruption Act 1988 ("the Act"). Section 4(2) of the Act notes that the Commission has the functions conferred or imposed upon it under the Act, or any other act.
The Commissioner for the Commission is appointed pursuant to s 5 of the Act, and has, and may exercise, the functions conferred or imposed on him or her by or under the Act or any other act.
The principal functions of the Commission are set out in s 13. Relevantly for the purpose of these proceedings, they are as follows: "13 Principal functions (1) The principal functions of the Commission are as follows: (a) to investigate any allegation or complaint that, or any circumstances which in the Commission's opinion imply that: (i) corrupt conduct, or (ii) conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or (iii) conduct connected with corrupt conduct, may have occurred, may be occurring or may be about to occur, (b) to investigate any matter referred to the Commission by both Houses of Parliament, (c) to communicate to appropriate authorities the results of its investigations, (d) to examine the laws governing, and the practices and procedures of, public authorities and public officials, in order to facilitate the discovery of corrupt conduct and to secure the revision of methods of work or procedures which, in the opinion of the Commission, may be conducive to corrupt conduct, (e) to instruct, advise and assist any public authority, public official or other person (on the request of the authority, official or person) on ways in which corrupt conduct may be eliminated, … (h) to educate and advise public authorities, public officials and the community on strategies to combat corrupt conduct, (i) to educate and disseminate information to the public on the detrimental effects of corrupt conduct and on the importance of maintaining the integrity of public administration, (j) to enlist and foster public support in combating corrupt conduct, … (1A) Subsection (1) (d) and (f)-(h) do not extend to the conduct of police officers, Crime Commission officers or administrative officers within the meaning of the Police Integrity Commission Act 1996 . (2) The Commission is to conduct its investigations with a view to determining: (a) whether any corrupt conduct, or any other conduct referred to in subsection (1) (a), has occurred, is occurring or is about to occur, and (b) whether any laws governing any public authority or public official need to be changed for the purpose of reducing the likelihood of the occurrence of corrupt conduct, and (c) whether any methods of work, practices or procedures of any public authority or public official did or could allow, encourage or cause the occurrence of corrupt conduct. (2A) Subsection (2) (a) does not require the Commission to make a finding, on the basis of any investigation, that corrupt conduct, or other conduct, has occurred, is occurring or is about to occur. (3) The principal functions of the Commission also include: (a) the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and (b) the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations. (3A) ..."
In exercising its functions, sections 12 and 12A of the Act are relevant. They are as follows: "12 Public interest to be paramount In exercising its functions, the Commission shall regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns. 12A Serious corrupt conduct and systemic corrupt conduct In exercising its functions, the Commission is, as far as practicable, to direct its attention to serious corrupt conduct and systemic corrupt conduct and is to take into account the responsibility and role other public authorities and public officials have in the prevention of corrupt conduct."
As can be observed, the central feature of the Commission's function is the investigation of, dealing with and the deterrence of, corrupt conduct.
Corrupt conduct is defined in Part 3.7 of the Act as being any conduct which falls with the description of corrupt conduct in s 8 of the Act, and which is not excluded by s 9. Section 7 provides that conduct comprising conspiracy or attempt to commit or engage in conduct that would be corrupt conduct, is to be regarded as corrupt conduct.
Section 8 is in the following form: "8 General nature of corrupt conduct (1) Corrupt conduct is: (a) any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority, or (b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or (c) any conduct of a public official or former public official that constitutes or involves a breach of public trust, or (d) any conduct of a public official or former public official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person. (2) Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which could involve any of the following matters: (a) official misconduct (including breach of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition), (b) …, (g) perverting the course of justice, (h) …, (x) matters of the same or a similar nature to any listed above, (y) any conspiracy or attempt in relation to any of the above. (3) Conduct may amount to corrupt conduct under this section even though it occurred before the commencement of this subsection, and it does not matter that some or all of the effects or other ingredients necessary to establish such corrupt conduct occurred before that commencement and that any person or persons involved are no longer public officials. (4) Conduct committed by or in relation to a person who was not or is not a public official may amount to corrupt conduct under this section with respect to the exercise of his or her official functions after becoming a public official. (5) ..."
The limitations on the nature of corrupt conduct are set out in s 9 in the following form: "9 Limitation on nature of corrupt conduct (1) Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve: (a) a criminal offence, or (b) a disciplinary offence, or (c) reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official, or (d) in the case of conduct of a Minister of the Crown or a member of a House of Parliament-a substantial breach of an applicable code of conduct. (2) It does not matter that proceedings or action for such an offence can no longer be brought or continued, or that action for such dismissal, dispensing or other termination can no longer be taken. (3 ... (4) Subject to subsection (5), conduct of a Minister of the Crown or a member of a House of Parliament which falls within the description of corrupt conduct in section 8 is not excluded by this section if it is conduct that would cause a reasonable person to believe that it would bring the integrity of the office concerned or of Parliament into serious disrepute. (5) ..."
Also of relevance to these proceedings, is the manner in which complaints may be made to the Commission about possible corrupt conduct. This is dealt with in s 10, which is in the following terms: "10 Complaints about possible corrupt conduct (1) Any person may make a complaint to the Commission about a matter that concerns or may concern corrupt conduct. (2) The Commission may investigate a complaint or decide that a complaint need not be investigated. (3) The Commission may discontinue an investigation of a complaint. (4) ..."
Whether or not the Commission decides to undertake an investigation is also dealt with in s 20 of the Act which is in the following form: "20 Investigations generally (1) The Commission may conduct an investigation on its own initiative, on a complaint made to it, on a report made to it or on a reference made to it. (2) The Commission may conduct an investigation even though no particular public official or other person has been implicated. (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. (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."
The Commission also has the power to conduct a preliminary investigation. That power is given by s 20A and is in the following form: "20A Preliminary investigations (1) An investigation may be in the nature of a preliminary investigation. (2) A preliminary examination can be conducted, for example, for the purpose of assisting the Commission: (a) to discover or identify conduct that might be made the subject of a more complete investigation under this Act, or (b) to decide whether to make particular conduct the subject of a more complete investigation under this Act. (3) Nothing in this section affects any other provision of this Act."
It will be necessary in due course to consider the effect of these sections when considering the particular facts of these proceedings and the claims which are made.

The Nature of the Plaintiff's Case

The Amended Statement of Claim sets out the plaintiff's claim extensively over 387 paragraphs, which occupy about 95 pages.
In addition, the Amended Statement of Claim calls up further particulars which are contained in a two volume, 900 page "Brief", which the Amended Statement of Claim pleads is in the possession of the Commission. The Commission accepts that it has been provided with the Brief.
It is not unfair to say that the Amended Statement of Claim is discursive and prolix. In many paragraphs it contains pleadings in the nature of submissions which do not comply with the rules for pleading in the Uniform Civil Procedure Rules 2005 ("UCPR") or with the authorities of this and other Courts on proper pleading.
In its essence, the plaintiff claims that on 24 January 2012, he made a complaint to the Commission of serious corrupt conduct. He says that the complaint was extensively particularised and supported. It was contained in two volumes which totalled about 900 pages in length. I will refer to this as "the 2012 Complaint". It is the same as the "Brief" to which reference has just been made.
The Commission has declined to investigate the 2012 Complaint. The proceedings brought by the plaintiff here are intended to compel the Commission to investigate the 2012 Complaint. As well, the plaintiff seeks to have any such investigation conducted in a particular way.
It will be convenient to give a summary of the subject matter of the Amended Statement of Claim. Necessarily, such a summary does not include every allegation, but is intended to provide a context against which the question of whether the Court should or should not grant the relief claimed, can be considered.
It also needs to be understood that it is wholly unnecessary so as to be able to determine the plaintiff's claims for relief in these proceedings, for this Court to make any findings at all about whether the allegations made by the plaintiff in the Amended Statement of Claim as to the substance and content of the 2012 Complaint, are true, are supported by any of the evidence or other material, or whether they are anything more than mere allegations.
Shortly put, it is not for this Court to investigate the factual truth and correctness of the allegations of corrupt conduct in the Amended Statement of Claim which replicate those made in the 2012 Complaint.
A suitable commencement point for this summary is to set out the plaintiff's own description of what the substance of the 2012 Complaint is about. He said: "This case is about politicians from time to time abusing their self-given powers of patronage to place in high positions in the Public Service including the Judiciary, their friends and sympathisers, and indeed cronies, in such institutions as the NSW Supreme Court, the NSW Police Service, the Independent Commission Against Corruption, the Attorney General's Department, the Police Integrity Commission and the NSW Crime Commission. These placed officials, being subjected to the politicians influences and persuasions being brought together to, in effect, form a confederacy (alliance) for the purposes as alleged in paragraph 2 of the Statement of Claim. That is, to cover up and to prevent any investigation or public inquiry into, or exposure of an alleged Supreme Court judge fixing and perversion of justice by the former Premier of NSW and Labour Party icon, Neville Wran, and his bookmaker friend, Bill Waterhouse, and Robby and Louise Waterhouse, and also necessarily their own institutions and personnel's and many and diverse alleged criminal and corrupt acts in doing so." (sic)
At the centre of the 2012 Complaint are litigation proceedings in the Supreme Court of NSW, which were heard and determined by the late Justice John Kearney.
The main proceedings before Kearney J, which were instituted by the plaintiff, his siblings and his mother, related to the administration of the Estate of his late father, Charles Otto Hercules Waterhouse, who died in 1954. Probate of the Will of the late Mr Charles Waterhouse was granted to his two brothers, Mr John Knight Waterhouse and Mr William Stanley Waterhouse. They were two of the defendants in the main proceedings. As the proceedings covered a large number of transactions across a long period, ultimately, three other individual defendants, and seventeen corporate defendants were also joined.
The claims made by the plaintiffs in the Estate proceedings included that the two trustees and executors had fraudulently mismanaged the Estate; that they had profited for themselves in their capacities as fiduciaries from various trust assets; that they had appropriated money and real estate for their own benefit and had done so by concealing the transactions. In short, the plaintiffs in those proceedings claimed that they had been significantly financially disadvantaged by the conduct of the two principal defendants, Mr Jack Waterhouse and Mr William Waterhouse, who had enriched themselves at the expense of the plaintiffs, being their late brother's wife and children.
The proceedings were heard on various dates in 1989 through to 1991. They were heard by Kearney J sitting in the Equity Division of the NSW Supreme Court. Kearney J published a number of judgments commencing with Hagan v Waterhouse (1991) 34 NSWLR 308. This was followed by a decision dealing with the question of costs which is reported as Hagan v Waterhouse [No.2] (1992) 34 NSWLR 400. The plaintiffs in those proceedings lodged an appeal to the NSW Court of Appeal against the two judgments. Prior to the hearing of the appeal, the proceedings were compromised, and thus finalised.
In the Amended Statement of Claim, the plaintiff says this of the first judgment of Kearney J: "The plaintiff contends it was perverse and defied the law and the evidence. It awarded the 'beneficiaries' between a quarter and one third of what should have been awarded. Kearney had saved them [the defendants] between 35-40 million in 1990 dollars. Kearney also went so far as to recommend that no criminal charges be laid against the trustees (Bill and Jack) despite strong evidence of fraudulent breaches of trust by them. Further, between November 1991 and February 1992, Kearney allowed the defendants to cavil with his judgment. He made changes to suit them that reduced the judgment's value by hundreds of thousands of dollars. He awarded the beneficiaries only half their costs. The judgment was largely unenforceable as refused to make orders as to quantum of damages. This necessitated a further lengthy trial on quantum. He refused to order the trustees to hand over what little was left of the estate. He found completely against the widow on the Seaforth land claim and ordered her to pay the trustee's costs of that claim. …" (sic) Clearly, the plaintiff was unhappy with the outcome of the litigation.
Shortly after those judgments were delivered, the plaintiff lodged a letter of complaint with the Attorney-General requesting an investigation into Kearney J and the manner of the conduct of the case by the Supreme Court of NSW. The plaintiff alleges, after further information came to hand, that he prepared about 250 pages of analysis of the judgment of Kearney J, which together with annexures, demonstrated "… patent perversions of justice".
The plaintiff pleads that on 6 October 1999, he delivered this analysis together with additional supporting material totalling about 450 pages, to the Commission. It is convenient to adopt the plaintiff's description of this document as the "99 Complaint". Although the 99 Complaint was nominally made by the plaintiff's mother, the late Mrs Patricia Hagan, it is clear that the plaintiff was the author of it, and that it contained his views and assertions. In substance, it was a complaint made in the name of his mother, but on behalf of both his mother and himself. The plaintiff himself described it as a "joint complaint" in later correspondence with the Commission.
The plaintiff then alleges that the 99 Complaint was the subject of deliberate concealment, unlawful conduct by the Commission and the Commissioner. The plaintiff also provided a copy of the 99 Complaint to the NSW Crime Commission which did not investigate the matter. The plaintiff alleges that this failure to investigate was accompanied by sinister conduct and motives.
By 2001, no response had been received from the Commission to the 99 Complaint. As a consequence, the plaintiff, acting as a solicitor, brought proceedings in the Supreme Court, in which his mother was named as plaintiff, against the Commission seeking judicial review of its conduct, with respect to the 99 Complaint.
It is apparent from other material before the Court that the plaintiff's mother, Mrs Hagan, died in 2004. By consent on 10 June 2004, the judicial review proceedings were dismissed. Other orders were made.
The Amended Statement of Claim goes on to allege that, notwithstanding that the plaintiff persisted with a variety of complaints, none were dealt with appropriately, or in accordance with the law. Included in these further complaints, according to the pleadings, was one to the Inspector of the Commission, who declined to deal with the matter.
In October 2006, the plaintiff pleaded that he had delivered a brief of a further complaint to the then Commissioner of Police, particularising alleged misconduct in public office by the Inspector of the Commission, and also alleging misconduct in public office by the Commission and others, involving what the Amended Statement of Claim alleges was a cover up.
In August 2007, the Commissioner of Police declined to take any further action with respect to the complaint made to him, and according to the Amended Statement of Claim, informed the plaintiff that he was closing the file.
The plaintiff shortly thereafter contacted the Police Integrity Commission to see if the Police Commissioner, as the plaintiff asserts he was obliged to, had referred the matter of the complaint to the Police Integrity Commission. When that was not done, the plaintiff complained to the Police Integrity Commission about misconduct by the Police Commissioner.
The pleading in the Amended Statement of Claim continues with a lengthy description by way of a chronology of events which the plaintiff alleges were linked, and which the plaintiff alleges demonstrates corrupt conduct on the part of the many public servants with whom he was corresponding and having dealings. The plaintiff alleges, and there is no dispute, that on 24 January 2012, under cover of a letter to the Commission, he lodged a further brief consisting of the Complaint, in two lever arch folders of approximately 900 pages, which I have called the 2012 Complaint.
The plaintiff alleges, and there is no dispute, that on 11 November 2012, he received a letter from the Commissioner of the Commission, dated 16 October 2012, which declined to investigate the allegations which he made in the 2012 Complaint.
It will be necessary to return to the terms of that response later, but the response leads to the plaintiff asserting that the Commissioner, and the Commission had refused to do his, and its, public duty. The substance of that allegation is contained in paragraph 385 of the Amended Statement of Claim in the following terms: "Mr Ipp (the Commissioner) refused to do his public duty. It is clearly apparent from his letter that he had hardly read any of the complaint and refused to come to terms with it or the gravity of the matter. He pretended there was no evidence to substantiate any part of it. He did not comply with any of the laws, rules and procedures that governed his dealing with the complaint. He deliberately carried out no investigation at all. He ignored the vast majority of the evidence particularised to him and misrepresented the rest. He engaged in misleading and deceptive conduct. He ignored and refused his legal duty to initiate 'special arrangements'. He ignored his and his Commission's self-evident conflicts of interest. He refused to recuse himself and purported to make a decision not only in his own interest but also in the interest of his friends, colleagues, benefactors and institutions of which he was a member or was a former member and demonstrated for reasons of such self-interest that he had no intention in relation to the matter of performing the duties entrusted to him as ICAC Commissioner. He purported to reject 'the complaint'. "
Finally, attached to the Amended Statement of Claim are a series of documents, each of which demonstrates that the individuals and bodies to whom the plaintiff had made complaint had declined to investigate the complaint.
As I have earlier noted, the form of the Amended Statement of Claim does not comply with the requirements of a proper pleading. Annexing evidence, as the plaintiff has done, is yet another example of the way in which the pleading simply ignores the UCPR and the authorities. But for the ultimate decision in this matter which addresses the substantial question of whether relief should be granted against the Commission, the Amended Statement if Claim should be struck out.

Correspondence between the Plaintiff and the Commission

Since the conduct of the Commission is called into question by reason of this reply, and the orders which the plaintiff seeks, in large part, arise from the contents of this letter, it is appropriate to refer to it somewhat fully, although it is not necessary to set the whole of it out verbatim.
The letter is set out with a reference on the first page which, according to the Amended Statement of Claim, is the same reference number given to the 99 Complaint lodged by the plaintiff on behalf of his late mother, namely EOO/0122. The first paragraph of the letter notes that the Commission wrote to the plaintiff "… on 18 December 2000 and 11 April 2001". It is clear from this introduction, combined with the reference number, that the Commission, internally, treated the 2012 Complaint as being related to, if not a continuation of, the 99 Complaint.
The letter then identifies seven particular allegations and provides a response to each of those allegations. Three of the discretely identified complaints are answered with similar phrases and reasons after they have been shortly summarised. These answers are to the effect that while the particular allegation may amount to corrupt conduct, the information before the Commission is insufficient to substantiate it or else the lack of specific information in support of the allegation means that it is not possible to properly investigate the allegation. These answers bespeak an attention to, and a consideration of, the 2012 Complaint by reference to the content of it, and the nature of any investigation which may be needed.
In respect of other allegations, the complaint is dismissed on the basis that the allegations are hearsay, or that only limited lines of enquiry are open to the Commission because of inadequate information.
In respect of two allegations, the Commission responded that its earlier answers, either in its letter of 18 December 2000 (it indicated that it did not propose to further pursue the matter), and its letter of 11 April 2001 (which informed the plaintiff that the allegation had been investigated and no action would be taken) were such as not to require further response.
The letter goes on to conclude in the following terms: "The allegations you raise have been determined not to involve conduct warranting any investigative action on the part of this Commission. Your most recent material does not cause me to reconsider this determination. Therefore, the Commission's decision not to investigate your allegations stands. We will consider any further information you provide. However, unless it differs substantially from that already provided, we will not contact you again."
By letter dated 17 December 2012, the plaintiff responded to the letter of 16 October 2012. This reply letter pointed out that the response was inadequate and insufficient. In particular, the reply letter draws attention to the fact that the letter of the Commissioner did not deal with the most important single complaint which had been contained within the 2012 Complaint. The reply letter says: "That complaint was to the effect that certain named public institutions had been, and had allowed themselves to be, so corrupted by political influences that they had formed a confederacy with the extended common criminal purpose of, inter alia, covering up and keeping covered up, an alleged Supreme Court judge fixing and perversion of justice by the former labour party Premier, Neville Kenneth Wran, and the former bookmakers William Stanley Waterhouse and his son Robbie Waterhouse and his daughter Louise Waterhouse, and also necessarily their own institutions and personnel many and diverse alleged criminal and corrupt acts in doing so."
Later in the reply letter, the plaintiff refers to the 99 Complaint, and describes it as, together with his mother, a joint complaint to the Commission.
Towards the end of his letter of 17 December 2012, the plaintiff says this: "On the face of these extremely grave allegations of serious corruption and misconduct in public office by your Commission and its staff, and your former Court and colleagues, there is only one thing you could lawfully do with my complaint. You could not investigate it or make any assessment of it. You of course had to read it, but only to ascertain the fact that it contained allegations of serious corruption by your ICAC and its personnel. Once you realised that fact you then had to do what the law required you to do. That is to make the necessary 'special arrangements' under Pt 5 of the Act. Indeed the ICAC's website advises the public exactly that. That is that serious complaints against ICAC personnel (and this means the ICAC itself) will be investigated by persons external to the Commission. You knew you had to make 'special arrangements' and because of the very serious political issues the complaint raised, the greater the circumspection was required by you. The matter involves allegations of political interference at the highest level. International jurists are clearly required not only to prevent further interferences and influences but allay any suspicions or apprehensions of political interference. Remember just must not only be done, it must be seen to be done. I made this very clear to you. …"
The reply letter concludes with a statement that the plaintiff accepts the Commissioner's letter of October 2012 as: "… a repudiation of not only my legal and constitutional rights, but also your refusal to defend the public interest under the charter of the ICAC Act." Plaintiff's Submissions
The plaintiff submits that such is the nature of the allegations made in the 2012 Complaint, and the inferences to be drawn from the events set out in the Amended Statement of Claim with respect to the wide range of individuals, or bodies declining to investigate the 2012 Complaint, and also the Commissioner's conduct or the conduct of the Commission, that the Court ought infer that the conduct of the Commission in refusing to investigate the 2012 Complaint is conduct which does not comply with its obligations under the Act.
The plaintiff submits that the nature of the allegations which are made in the 2012 Complaint, and the events which are described in the Amended Statement of Claim, are such that the public interest in the proper discharge by the Commission of its statutory function - to investigate and report on corrupt conduct - is of absolute importance.
Based upon these conclusions, the plaintiff submits that the Commission has a duty or an obligation created by the Act, which compels it, in this case, to undertake an investigation in the manner claimed in the Amended Statement of Claim, which duty and obligations ought be enforced by this Court granting the relief sought.
As the plaintiff succinctly puts it in his written submissions, speaking of these proceedings: "It should never have come to this, but it is here out of absolute necessity because all of the public officials and public institutions who are charged with a duty to do something about it, all corruptly refused their duty."
The plaintiff's submissions centred upon what he described as a five pronged pitchfork, namely: "(a) administrative law review; (b) mandamus for failure to perform a public duty; (c) it is in the public interest, and just and convenient, that a public inquiry be held ASAP; (d) that the conduct of the defendant has been so unfair and dishonest, and so gross an abuse of its powers, and a refusal of its duty under its Act, as to be a detriment to the administration of justice and the standing and purpose of ICAC itself, that the orders sought should be made forthwith; and (e) that the plaintiff has not only a private right, but also a public duty, to bring this action in defence of the public interest."
It is clear that a central feature of the plaintiff's submissions is that the Commission has an enforceable obligation or duty, to investigate allegations of serious corruption, which the plaintiff contends are or are likely to be substantiated.
Accordingly, it is appropriate in considering the plaintiff's submissions, to commence with an analysis of the obligations of the Commission.

Statutory Interpretation

In particular, here the Court is being asked in the context of the entire Act, to interpret specifically the power set out in both s 10 and s 20 of the Act. The expressions are relevantly identical. It is convenient to analyse s 20 of the Act, because the same result will follow respect to s 10 of the Act.
Initially, one needs to concentrate on subsections (1) and (3) of s 20, which are those parts of s 20 dealing with whether the Commission may conduct an investigation.
The commencement point in undertaking an exercise of statutory construction with respect to the subsections to which I have referred above, must, "…begin with a consideration of the text itself, taking into account the context, including the general purposes and policy of the provision … context is important as statutory construction requires deciding what is the legal meaning of a provision by reference to the language of the instrument viewed as a whole … " (citations omitted) See Cunneen v Independent Commission Against Corruption [2014] NSWCA 421 at [13] per Bathurst CJ.
French CJ and Hayne J, in considering the principles applicable to statutory construction, said in Certain Lloyd's Underwriters v Cross [2012] HCA 56: "23. It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue: 'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.'
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' . That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed' .
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative 'intention' is to use a metaphor. Use of that metaphor must not mislead. '[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have' . And as the plurality went on to say in Project Blue Sky: 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction[38] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.' To similar effect, the majority in Lacey v Attorney-General (Qld) said: 'Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.'(footnote omitted) The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said: 'Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case. And as the plurality said in Australian Education Union v Department of Education and Children's Services: 'In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.' (footnotes omitted) "
Kiefel J in Certain Lloyd's Underwriters , said at [88]-[89] this: "88. The fundamental object of statutory construction is to ascertain legislative intention, understood as the intention that the courts will impute to the legislature by a process of construction, by reference to the language of the statute viewed as a whole. The starting point for this process of construction is the words of the provision in question read in the context of the statute. Context is also spoken of in a broader sense as including the general purpose and policy of the legislation, in particular the mischief to which the statute is directed and which the legislature intended to remedy.
It is legitimate to resort to materials outside the statute, but it is necessary to bear in mind the purpose of doing so and the process of construction to which it is directed. That purpose is, generally speaking, to identify the policy of the statute in order to better understand the language and intended operation of the statute. An understanding of legislative policy by these means does not provide a warrant for departing from the process of statutory construction and attributing a wider operation to a statute than its language and evident operation permit." (footnotes omitted)
I will keep these principles in mind in considering the provision in question.
The essence of the two subsections in s 20 of the Act is the conferral on the Commission itself of a discretion. The statutes uses the word "may" with respect to the Commission conducting an investigation.
Clearly, these subsections provide the Commission with a power to conduct an investigation. The question is whether, as the plaintiff contends, that power is coupled with a duty on the Commission to exercise the power when called upon so to do by the lodging of a complaint.
In Julius v Bishop of Oxford (1880) 5 App Cas. 214 at 222, the Lord Chancellor, Earl Cairns said: "But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. … "
In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, Callinan J said at [310], with respect to the decision of Earl Cairns LC in Bishop of Oxford, this: "It may, with respect, be doubted whether it is possible to make a more accurate or better statement in relation to the powers and obligations of a statutory authority. Another way of expressing his Lordship's view is to say that there has to be something either unique … or special about the role, or involvement of the authority, or the relationship between it and the affected person, or special about the non‑exercise of the power such as marked irrationality in abstention from employing it, before liability may be sheeted home to the former."
To consider the plaintiff's contention, it is appropriate to commence with a consideration of the nature and role of the Commission as the repository of the power and, given its status as a statutory body, what objects it is required to fulfil. Such an examination will depend upon the statute interpreted in accordance with the principles and authorities articulated above.
According to s 2A of the Act, the Commission is constituted as an independent body to investigate, expose and prevent corruption involving or affecting public authorities and public officials. It also has an educational purpose. The explicit mischief to which the Act is directed is corruption involving or affecting public authorities and public officials: Cunneen at [67] per Basten JA.
The Commission is given some statutory direction as to its priorities by s 12 - namely, it is to regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns. It may investigate allegations of corrupt conduct either of its own motion, or else on the basis of a complaint made to it, a report or reference made to it. This is the widest possible basis for the receipt of material which may trigger an investigation. The Commission may also refer a matter for investigation to any person or body which the Commission regards as appropriate: s 53 of the Act.
The Act provides for a duty upon the Commission to investigate in only one identified circumstance. By s 73 of the Act, a matter of the kind described in s 13 of the Act, may be referred by resolution of both Houses of Parliament. In that circumstance, s 73 provides: "(2) It is the duty of the Commission to fully investigate the matter so referred to it for investigation."
The terms in which this provision is expressed, i.e. a mandatory duty as opposed to a permissive power, suggest the use of language within the Act which conveys the differential meaning of a permissive power and a mandatory obligation. To have regard to s 73, accords with principle to interpret the Act coherently, by reading it as a whole.
As well, s 20A of the Act gives the power to the Commission to undertake a preliminary investigation. One use of that preliminary investigation is to decide whether to make conduct the subject of a "… more complete investigation …". The existence of the whole concept of a preliminary investigation tells against interpreting this power in s 20 of the Act in terms of any obligation to investigate every complaint received.
The commencement point for consideration of the issue is the principal object of the Act. As I have earlier indicated, the Act creates the Commission as an independent and accountable body, with powers to investigate, expose and prevent corruption, and to educate public authorities, in order to promote the integrity and accountability of public administration. It also confers on the Commission special powers to inquire into allegations of corruption.
The Act contemplates that any person may make a complaint to the Commission about a matter "… that concerns, or may concern, corrupt conduct": see s 10(1) of the Act. The Commission may investigate a complaint, or decide that a complaint need not be investigated: see s 10(2) of the Act. It is empowered to discontinue an investigation of a complaint.
The terms of s 11 of the Act are framed with an eye to public duty. It requires nominated bodies or persons to report matters to the Commission. It expresses that obligation by use of the words "… is under a duty to report". Again, the use of language differentiates between a power and a duty.
It is given a broad range of principal functions in s 13 and other functions in s 14. It is to attend to each of these as appropriate.
The words in s 20(1) of the Act are clearly empowering and not mandatory. It is of significance that the words used in s 20(3) of the Act entitle the Commission to "have regard to such matters as it thinks fit". Some matters are then listed as being matters to which regard may be had. But even those matters are dependent upon the opinion which the Commission forms.
In short, the Commission is given a very broad discretion as to what it should investigate, providing of course that any investigation deals with appropriate conduct, i.e. corrupt conduct as that phrase is defined.
I am unable to accept that the terms of this legislation either s 10 of s 20 of the Act, impose a duty or obligation on the Commission to investigate any complaint made to it. The Act did not oblige it to investigate the 2012 Complaint.

Unreasonable Decision

However, even if there was no such obligation, the plaintiff seems to suggest that an alternative basis for the relief which he claims, namely that the decision to decline to investigate, was an unreasonable one. The question which is then necessary to be examined, is whether the failure of the Commission to investigate the 2012 Complaint can be regarded as unreasonable, in the legally relevant sense.
The argument advanced by the plaintiff was that it was unreasonable. The plaintiff submitted that conduct was so serious that it would be unreasonable in a legal sense if the Commission failed to investigate it. In fact, the pleading asserts, in substance, that so unreasonable was the failure to investigate the 2012 Complaint, that the Court ought conclude that such conduct was itself corrupt. The plaintiff went so far as to submit that the failure to investigate, demonstrated complicity in the original alleged corrupt conduct.
In considering the exercise of a discretionary power, it is appropriate to keep in mind what Gageler J said in Minister for Immigration and Citizenship v Li [2013] HCA 18 at 90-91. His Honour said: "90. Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.
The implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made: 'Just as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.' "
In being asked to exercise the ground of unreasonableness, a Court must be vigilant to guard against undertaking a merits review. If a decision is so unreasonable that no reasonable body could have made it, then what is required is "… something overwhelming …": Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [44].
It is not enough for a Court in considering this ground to come to a decision different from the decision made. There is a close analogy between this ground of manifest unreasonableness and appellate review of judicial discretion of the kind articulated in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505‑506 per Dixon, Evatt and McTiernan JJ.
As Gageler J went on to say in Li at [106] and following, omitting footnotes: "106. The label 'Wednesbury unreasonableness' indicates 'the special standard of unreasonableness which has become the criterion for judicial review of administrative discretion'. Expression of the Wednesbury unreasonableness standard in terms of an action or decision that no reasonable repository of power could have taken 'attempts, albeit imperfectly, to convey the point that judges should not lightly interfere with official decisions on this ground'. 1.07 Potential for legitimate disagreement in the judicial application of the standard of Wednesbury unreasonableness is inevitable, as it would be in the judicial application of any other standard: 'A formula for judicial review of administrative action may afford grounds for certitude but cannot assure certainty of application. Some scope for judicial discretion in applying the formula can be avoided only by falsifying the actual process of judging or by using the formula as an instrument of futile casuistry. It cannot be too often repeated that judges are not automata. The ultimate reliance for the fair operation of any standard is a judiciary of high competence and character and the constant play of an informed professional critique upon its work.' 108. 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. … 110. The same observation lends force to the suggestion that, for the purpose of applying the test, 'guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion'. There is, in particular, a close analogy with the settled principle that an appellate court will review the exercise of a judicial discretion 'if upon the facts it is unreasonable or plainly unjust', or if 'failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court'. It is therefore fair to say that '[i]f a discretionary power is exercised in a way in which a reasonable repository of the power might exercise it, the exercise of the power is supported by the statute which confers it, whether the discretion is judicial or administrative in nature'.111. "
The High Court of Australia, in a unanimous judgment in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 sounded a note of caution. At [57] the Court said: "Maintenance of the capacity to enforce limits on power does not entail the consideration that the exercise of a power must always be amenable to enforcement, whether by mandamus or otherwise. Nor does it entail that every discretion to exercise a power must be read as if satisfaction of identified criteria would require its exercise."
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.
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.
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.
But there are other factors to which the Court would be entitled to have regard in considering whether declining to investigate was unreasonable. One is the age of the foundational events which were the subject of the 2012 Complaint. The substance of the 2012 Complaint concerned a former politician who had not been in office for over 20 years, a judge who had retired from the Supreme Court and had died before the 2012 Complaint was lodged, and the outcome of litigation which had concluded many years before - ultimately by a settlement, being an agreement between the parties which none of the parties had sought to have set aside.
These facts alone, and without more, would be sufficient to rationally justify the Commission declining to undertake an investigation.
As well, the Court can take judicial notice of the fact that the Commission, like all agencies of government whether independent or not, has a limited budget. Publically funded institutions such as the Commission can only operate within that limited budget. One of the factors which a Commissioner or the Commission itself must take into account in considering whether to investigate a complaint or not, is the impact of the cost of that investigation upon its budget. There is no evidence before the Court as to whether a budgetary constraint was relevant to the decision of the Commission in this case. However, the Court can have regard to the fact that such a reason may be an entirely rational one. The plaintiff certainly has not proved that the Commission, at the relevant time, had adequate funds available to enable it to undertake an investigation of the kind that he submits ought be required.
In all of the circumstances, I am not satisfied that the plaintiff has demonstrated that the conduct of the Commission in declining to investigate the complaint is in any way unreasonable, let alone unreasonable to the extent required by the law before the decision is liable to be overturned on judicial review.

Inappropriate Relief

The essential relief sought was an order in the nature of mandamus requiring the Commission to undertake an investigation of the complaint.
In order for the Court to grant relief of the kind sought, namely, an order in the nature of mandamus, the Court has to first be persuaded of the existence of a legal right or obligation which historically has been the foundation of every writ of mandamus: see Ex Parte Napier (1852) 18 QB 692 at 695.
As Rich, Dixon and McTiernan JJ said in R v War Pensions Entitlement Appeal Tribunal [1933] HCA 30; (1933) 50 CLR 228: "A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty, or in the case of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him." Later their Honours said: "The prosecutor who undertakes to establish that a Tribunal has so acted, ought not be permitted under cover of doing so, to enter upon an examination of the correctness of the Tribunal's decision, or the sufficiency of the evidence supporting it, or the weight of the evidence against it, or the regularity or irregularity of the manner in which the Tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the Tribunal is entirely beside the question whether a writ of mandamus lies."
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.
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 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.
But there is another good reason why a Court would not, in its discretion, grant the relief sought.
In an analogous, but not entirely identical area of discourse, courts have been reluctant to order police officers to undertake investigations.
Lord Denning MR in Reg v Commissioner of Police of the Metropolis; Ex Parte Blackburn [1968] 2 QB 118 at 136 dealt with the notion of any enforceable duty falling upon a police officer. He said: "Although the Chief Officers of police are answerable to law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the Chief Constable, as the case may be, to decide in any particular case whether enquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter. He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide. There are some policy decisions with which I think the Courts in a case can, if necessary, interfere."
This field is not identical with that covered by this suit, but, as I have said, is analogous. I do not see why a Court would order the Commission, an investigative body, to investigate a complaint where the Commission in its discretion has decided not to do so, unless a clear duty in the law existed requiring it so to do. It is for the Commission to assess investigation priorities as a matter of its policy, and as a matter of deployment of its human and financial resources. It is inappropriate for a Court to direct, in the absence of knowledge of all complaints which the Commission has, that a particular investigation be undertaken.

Should an Order be Made?

I have concluded earlier that there is no obligation falling upon the Commission to investigate a complaint. The Commission has not filed any evidence in these proceedings, other than the letter setting out the reasons for declining to investigate the complaint, which deals with internal policy, budgetary constraints, scarcity of resources or the like. The Commission defends the proceedings on the basis that there is no enforceable duty of the kind alleged, and, if there was, it is not a matter which the Court would regard as appropriate to be enforced.
As I have earlier said, I am persuaded that the decision of the Commission was a rational one. It was lawful. It was not under an obligation to do what Mr Waterhouse submits it should do.
Having regard to the age of the matter, the nature of the business of the Commission, the caution which a Court should engage in before ordering any investigative body to investigate a complaint, I cannot be satisfied that this is a matter in which I would be persuaded to exercise a discretion to make the orders sought.
For the same reasons, the declarations sought are also inappropriate.
It follows that the proceedings should be dismissed.

Orders

I make the following orders: 1. Proceedings brought by Amended Statement of Claim dated 27 June 2013 are dismissed. 2. Plaintiff to pay the defendant's costs.

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: 02 April 2015

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Cases Cited (16)