4. Based on those facts, the judge concluded that IBAC had expressly informed the applicant that it considered the statutory criteria were satisfied and that the applicant was at liberty to make any submissions about the directions which would apply to the conduct of those examinations. Accordingly, the judge held that the applicant had failed to show a prima facie case that he had been denied procedural fairness.[5]
5. The judge next considered the applicant's argument that it was not open to IBAC to be satisfied, as required by s 117(1)(c), that a public hearing would not cause unreasonable damage to a person's reputation, safety or wellbeing. Again the judge concluded that the applicant had failed to raise a prima facie case of error. The judge observed that the criteria in s 117(1)(c) were to be determined by IBAC on the basis of reasonable grounds and that the criteria required a subjective assessment on an evaluative question. The subjective and evaluative nature of the decision made it 'inherently difficult' to establish that IBAC could not reasonably have formed the state of mind required by the section.[6] The judge held that demonstrating that a public examination would damage the applicant's reputation, safety or wellbeing, did not properly engage with the criteria which requires an assessment by IBAC of whether any such damage would be unreasonable. He concluded that there was no indication in the evidence that IBAC misdirected itself in making an assessment under s 117(1) of the Act.[7]
6. In addressing Anshun, the judge considered that there were compelling reasons why it was unreasonable for Mr Woodman not to challenge IBAC's decision to examine him in public in the 2022 proceeding. He noted there was no legal or practical obstacle to raising the validity of the public examination in the 2022 proceeding, which the judge considered was clearly in the scope of the 2022 proceeding. The judge said that bringing in the present claims would not have materially affected the length or complexity of the 2022 proceeding.[8]
7. Having found that the applicant had failed to establish a prima facie case the judge said it was unnecessary to consider the balance of convenience. The judge did, however, say that he would have refused the injunction on the basis of delay, even if the applicant had established an arguable case. The judge observed that the decision to hold a public hearing was made in 2019, and the applicant had stood by for three and a half years and allowed IBAC's Operation Sandon investigation to proceed without raising any complaints about his public examination and had proffered no explanation for the delay.[9]
8. The injunction was accordingly refused.

1. There are six proposed grounds of appeal which are in the following terms:
   1. The learned judge erred in finding that the IBAC expressly informed Mr Woodman that it considered the statutory preconditions for him to be publicly examined were satisfied, and in (implicitly) relying on that finding.[10]
   2. The learned judge erred in holding that there was no tenable claim that the public examination was conducted in breach of s 117(1).[11]
   3. In holding that Anshun estoppel applied, the learned judge erred in that he failed to appreciate that the applicant did not act unreasonably in failing to raise before Ginnane J the issue of the validity of his public examination.[12]
   4. The learned judge erred in implicitly holding that the plaintiff was not acting reasonably in seeking to determine the content of the Report before challenging the validity of the proceeding, thus erroneously increasing the relevant delay from 7 months to three and a half years.[13]

(a) In the judicial review proceeding before Ginnane J the applicant:

(i) sought the intervention of the Supreme Court to exercise its supervisory function over a Tribunal;

(ii) sought relief by way of provision of documents in fulfilment of the requirements of natural justice;

(iii) was confined to the public law remedies;

(iv) was unable to seek damages; and

(v) had a time limit of 60 days from the date of the IBAC's decision to seek to impugn it.[14]

(b) In the present proceeding (brought by way of writ and summons) the applicant:

(ii) is not confined to the 60 days limit to commence legal proceedings; and

(iii) is obliged to minimise his losses. The applicant's application for an order restraining the publication of the IBAC report was and is consistent with that obligation.

(c) In the judicial review proceeding, the Supreme Court was called upon to assert its authority to require public authorities to perform their legal obligations according to law. On the other hand, in the writ and summons proceeding, the Court is called upon to adjudicate upon private rights.

(d) The learned judge should have given, but failed to give, consideration to the differences between the judicial review proceeding and the Writ proceeding.

1. The learned judge erred in holding that there was no indication in the evidence that the IBAC misdirected itself in making an assessment that a public hearing would not infringe s 117(1), and from this reached the erroneous conclusion that there was no merit in the claim against the IBAC.[15]

(a) there was clear evidence that the public hearing caused considerable damage to Mr Woodman's reputation;

(b) that damage was unreasonable;

(c) there was no evidence as to what, if any, consideration IBAC gave to the possibility or probability of such damage.

(d) It may readily be inferred the IBAC must have had some, probably significant knowledge of the evidence that was to be led, the questions to be asked and the answers likely to be given during the examinations in order to consider whether or not to hold the examinations publicly.

(e) It is obvious from:

(i) the remarks of the Commissioner and of Counsel Assisting, on the first day of the public examinations,

(ii) the questions Counsel Assisting asked of Mr Woodman, and

(iii) the answers Mr Woodman gave to the questions;

that conducting the public examinations would cause damage to Mr Woodman's reputation.

(f) Mr Woodman's examination in public caused damage to Mr Woodman's reputation from 18 November 2019. That reputational damage continues.

(g) Whether the damage caused to Mr Woodman's reputation was unreasonable is a question of mixed fact and law.

(h) Had the IBAC not conducted public examinations, the damage to Mr Woodman's reputation would not have occurred

1. The learned judge erred in refusing to exercise his discretion to grant the interlocutory injunctive relief, where:

(a) there was clear evidence of likely additional damage to Mr Woodman if such relief were refused, and

(b) there was no evidence of damage to the respondents if it were granted.[16]

Principles on application for leave to appeal

1. It is only necessary to refer to two principles which are well understood and were not in issue.
2. First, as the decision of the judge involved the exercise of a discretion, a House v The King[17] error must be established, as explained by this Court in Tymbook Pty Ltd v Victoria[18] and more recently in AE Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd.[19]
3. Second, this Court must exercise particular caution in reviewing the decision of the primary judge to make or decline to make an interlocutory order. Before the Court will intervene there must be error in principle, and the decision appealed from must work a substantial injustice to one of the parties.[20] The question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.

1. This ground appears to relate to the applicant's contention that in conducting the public hearing the applicant was denied procedural fairness. The specific error attributed to the judge is one of fact; that it was an error for the judge to find that IBAC had informed the applicant that it was satisfied the statutory preconditions in s 117 for the issue of the summons were satisfied.
2. As mentioned, the evidence before the judge included an affidavit of Amelia Jane Macknay, the Director of Legal Operations at IBAC who deposed that on 17 October 2019 a witness summons was served on the applicant together with a statement that complied with s 121(3) of the Act and a document entitled 'Preliminary Information and Directions for Public Examinations in Operation Sandon November 2019'. That document contained the statement, 'The Commission is satisfied for the purpose of this investigation of the relevant matters prescribed by section 117 of the [Act] which relate to it conducting public examinations'.
3. It follows that the finding of fact, made on the interlocutory basis, was well open to the judge.
4. In any event, it is not arguable that the Act required IBAC to expressly state that the statutory criteria in s 117 were satisfied. The Act addresses the content of the summons and the information that must be supplied with it and it requires a statement of the kind contended for.
5. Further, the failure to expressly state that it was so satisfied did not entail any want of procedural fairness. It did not prevent or impede the applicant from understanding his rights or his ability to challenge the lawfulness of the summons or the proposed form of hearing, particularly given that he was represented by two counsel and at least three solicitors who had corresponded with IBAC as to the form of the public hearing prior to its commencement (8, 11 and 12 November 2019).
6. The IBAC preliminary information document set out the scope and purpose of the public examination of Mr Woodman, and included the following:
   1. The transparency and integrity of planning and property development decision making within Victoria, including but not limited to, the provision of donations and in kind assistance to candidates at State and local government elections that may give rise to actual or perceived corruption;
   2. Whether public officers involved in planning and property development decision making have been improperly influenced through donations, gifts, pro bono services or other hospitality;
   3. The circumstances surrounding any actual or potential financial benefits obtained by any public officer, their families or their associates, resulting from, or otherwise in connection with, planning and property development decision making within Victoria;
   4. Whether the use of professional lobbyists or planning consultants to lobby State and local government has resulted in undue influence over planning and property development decision making within Victoria.
7. Not only were the applicant and his lawyers given the documents setting out the examination process and the issues to be traversed in his public examination, they were specifically requested to notify IBAC of any submissions they wished to make as to that process. Of note is the response, contained in an email from lead counsel representing the applicant to that request:

We have no objection to the proposed standard directions. We have one query, concerning the first proposed direction. We assume that once Mr Woodman has given his evidence, he will be permitted to remain in the hearing room so as to provide us with instructions concerning the evidence given by other examinees. Please confirm that that is also your understanding.

1. Although, as we mentioned earlier, it was open to the applicant, no application was made either prior to or during the public examination for it to be conducted privately.
2. Ground 1 is without merit.

1. By these grounds, the applicant contends that the judge erred in his conclusion that there was no indication in the evidence that IBAC misdirected itself or made an error of law in making an assessment under s 117(1) of the Act in relation to the issue of the summons and the conduct of the public hearing.
2. The applicant contends that because damage to his reputation, safety or wellbeing were inevitable and obvious, the statutory criteria in s 117(1)(c) could not lawfully be satisfied. The applicant points to the opening address by Counsel assisting and the nature of the questions asked during the examination to submit that it was plain that the applicant would be questioned in a way that suggested or raised the possibility that he was guilty of some wrongdoing.
3. The judge held that it was not enough for the applicant to show that his reputation would be damaged by a public examination or that this outcome was known or understood by IBAC. The mere existence of such harm does not preclude the issue of a summons. The issue to which s 117(1)(c) is directed is the existence of 'unreasonable' damage and the assessment of that question is reposed in IBAC and s 117(4) permitted IBAC to take into account the benefit if exposing corrupt conduct, including by means of a public examination. Subject to there being reasonable grounds the assessment is inherently an evaluative judgement. Moreover, given that the scope and nature of the examination had been explained to him, if there was at the time a perceived specific unreasonable harm to the applicant's reputation, safety or wellbeing by reason of conducting a public examination, this undoubtedly could and would have been raised by the applicant or his lawyers prior to the hearing; or at least, during the hearing.
4. In effect, the applicant submits that once damage is foreseeable or likely, the question of whether the damage is unreasonable can only be determined at trial. We cannot accept that submission. In order to justify an injunction the applicant was required to show an arguable or prima facie case or at least some colour of right. It was not enough to merely point to one aspect of the legal test, that is the existence of damage, and then say the matter was one for trial.
5. There was no error, let alone a House error, in the judge's conclusion that there was no evidentiary basis on which to conclude that IBAC had not directed itself to the statutory question. Nor can it be said that his conclusion as to whether s 117(1)(c) had been satisfied was not open to him. On the state of the evidence as it existed his conclusion was, with respect, plainly correct.

1. In addition to an absence of any merit in the applicant's grounds for seeking an injunction, the judge considered that Anshun estoppel would likely stand in the way of relief because the validity of the public examination could have been raised in the 2022 proceeding. Although the judge did not finally determine the question, he noted that there were compelling reasons why it was unreasonable for the applicant not to challenge IBAC's decision to examine him in public in the 2022 proceeding.
2. Anshun estoppel will preclude the assertion of a claim or of an issue of law or fact if the claim or issue was so connected to the subject matter of the first proceeding as to make it unreasonable, in the context of the first proceeding, for the claim or issue not to have been made or raised in it.[21]
3. The judge's conclusion on this point was correct for the following reasons:

(a) both the 2022 and 2023 proceedings are concerned with substantially the same subject matter: the lawfulness of the investigation as it applied to the applicant; > > (b) the two proceedings are directed to the same relief: preventing IBAC from publishing a report in the Operation Sandon investigation; > > (c) the facts relevant to the 2023 proceeding were known to the applicant at the time of the 2022 proceeding; > > (d) at least insofar as the claim for an injunction was concerned, both the 2022 and 2023 proceedings involved judicial review of the exercise of power. The powers in question, namely the power to conduct a public hearing and the power to investigate and report, are intertwined. The fact that the 2023 proceeding alleges negligence does not assist the applicant. The negligence claim was not the basis of and provided no foundation for the injunction; and > > (e) the fact that the State of Victoria was a party to the 2022 proceeding is irrelevant. No interlocutory relief is sought against the State.

4. In the context of the 2023 proceeding, to establish an Anshun estoppel it must be shown that it was unreasonable, having regard to the circumstances, for the applicant to have refrained from asserting that right (that is, the claim concerning the public examination) in the 2022 proceeding.[22] In substance, in the 2022 proceeding the applicant challenged the form of the draft report emanating from his public examination held in 2019 when, as it now appears, he claims that the IBAC was not lawfully authorised to conduct that public examination at all. Whilst there may be circumstances which justify a party refraining, reasonably, from litigating an issue in an earlier proceeding, none are apparent here. The 2022 proceeding complained about the product or outcome of the public examination on the basis that the draft report or the associated process were unlawful. The present ground of attack, which is focused on the anterior step of holding the public hearing, was plainly apt to be determined in the 2022 proceeding and the failure to bring the proceeding at that time was very likely unreasonable.
5. There was no error in the judge's conclusion that Anshun estoppel presented a formidable obstacle to the 2023 proceeding. Read fairly, the judge was not persuaded that, independently of Anshun considerations, the applicant had raised a prima facie case. We agree with him. The availability of Anshun provided a further, very powerful reason why the proceedings, insofar as they seek judicial review, are very likely to fail.

1. In his written case, the applicant contends that the judge's approach to delay was wrong. He asserts that he first time he was on notice of adverse findings was when he received a draft report which he actively challenged in the 2022 proceeding. He also asserts that he commenced his proceeding within seven months of the decision of Ginnane J and that therefore the judge had overstated the relevant period of delay, which the judge said was three and a half years. The applicant says that there was no evidence of prejudice by the delay and it could not justify the refusal.
2. Given we have found no error in the reasons for refusing the injunction, it is strictly speaking not necessary to consider whether, as the judge found, delay provided an additional reason for refusing the injunction. However it may assist if we briefly address this issue.
3. To an extent there is an overlap with the Anshun ground because, as the judge correctly found, there was no reason why the attack on the public hearing could not have been joined to the 2022 proceeding. As the High Court explained in Tomlinson,[23] the doctrine of abuse of process is informed in part by similar considerations of finality and fairness as those which underpin the principle of Anshun estoppel:

Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, [the doctrine of abuse of process] overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.

Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.[24]

1. The primary complaint of the applicant relates to the s 117 public examination process. He, and his lawyers, were aware of this procedure from 8 November 2019. This proceeding was issued on 18 May 2023, about a year after he issued the 2022 proceeding.
2. There is no explanation for the applicant's failure to raise the public examination point now sought to be ventilated prior to or at the time of the examination in 2019, nor for a proceeding to be initiated at an earlier point of time if not as part of the 2022 proceeding. It is distinctly arguable that this delay falls squarely within the Tomlinson statements of principle: the administration of justice is brought into disrepute, and it is unduly oppressive on IBAC to continue with this proceeding.
3. Even if this delay was not a sufficient basis for a conclusion that the proceeding constituted an abuse of process, in our view the judge was correct in treating delay as being significant - certainly to the point of refusing the interlocutory relief sought by the applicant.
4. Although not brought by originating motion and not seeking writs, to the extent that the proceeding is one of judicial review, it is akin to a proceeding under O 56 of the Rules. Such a proceeding has a time limit of 60 days that can only be extended where there are special circumstances.[25] Whether or not that time limit applies, it informs the general principle that challenges to the exercise of public power should be brought in a timely way. That has not occurred. We do not accept that IBAC will not be prejudiced. It is important and in the public interest that its reports to Parliament, especially those that concern allegations of corruption in a public setting, should not be unduly delayed. There is a broad public interest in the timely finalisation of such matters.
5. Even if there were some arguable ground of error on the part of IBAC (and we have found none), it was well open to the judge to regard the delay as precluding interlocutory relief of the kind sought.

1. It was open to the judge to refuse the injunction on the basis that no prima facie case had been established. In those circumstances, the balance of convenience could not in itself have justified an injunction. Ground 6 must fail.

1. None of the proposed grounds have any merit. The application for leave to appeal is refused. The application for an interlocutory injunction pending the determination of the application for leave to appeal falls away and must be dismissed.

[1] [2022] VSC 684 (Ginnane J).

[2] Woodman v Victoria [2023] VSC 285, [24] ('Reasons').

[3] (1981) 147 CLR 589; [1981] HCA 45 ('Anshun').

[4] Reasons, [17]. In the main these facts emanated from the contents of an unchallenged affidavit of Amelia Jane Macknay, the Director of Legal Operations of IBAC.

[14] Supreme Court (General Civil Procedure) Rules 2015, r 56.02 ('Rules').

[17] (1936) 55 CLR 499; [1936] HCA 40 ('House').

[18] [2006] VSCA 89; (2006) 15 VR 65, [4] (Maxwell P and Charles JA); [2006] VSCA 89.

[19] [2020] VSCA 236.

[20] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ); [1981] HCA 39; Warburton Environment Inc v VicForests [2021] VSCA 194, [112] (Niall, Emerton and Kennedy JJA); Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 442 (Murphy J); Drummond v Canberra Institute of Technology [2020] FCAFC 131, [5]-[6] (Flick, Katzmann and Charlesworth JJ).

[21] Timbercorp Finance Pty Ltd (in liq) v Collins [2016] FCA 44; (2016) 259 CLR 212, 229 [27] (French CJ, Kiefel, Keane and Nettle JJ); [2016] HCA 44; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, 517-8 [22] (French CJ, Bell, Gageler and Keane JJ); [2015] HCA 28 ('Tomlinson').

[22] Clayton v Bant (2020) 272 CLR 1, 12 [29] (Kiefel CJ, Bell and Gageler JJ); [2020] HCA 44.

[23] [2015] HCA 28; (2015) 256 CLR 507, 518 [24] (French CJ, Bell, Gageler and Keane JJ); [2015] HCA 28.

[24] Ibid 518-9 [24]-[26] (French CJ, Bell, Gageler and Keane JJ) (citations omitted).