Supreme Court New South Wales

• Medium Neutral Citation: Ivan Petch v Independent Commission Against Corruption [2014] NSWSC 1693
• Hearing dates: 22 October 2014 - 23 October 2014
• Decision date: 28 November 2014
• Before: Rothman J

Decision

(1)Judgment for the first defendant (ICAC);

(2)Save for the issues raised in the motion filed on 20 November 2014, and otherwise subject to leave granted herein, the summons is dismissed;

(3)The plaintiff shall pay the first defendant's costs of and incidental to the proceedings as agreed or assessed;

(4)Liberty to apply for special or different orders as to costs to both parties within 7 days of the publication of the reasons for judgment.

• Catchwords: ADMINISTRATIVE LAW - challenge to findings of ICAC - "insufficiency of evidence" - illogicality and irrationality - satisfaction of decision maker required, not objective existence of circumstances - summons dismissed
• Legislation Cited: Crimes Act 1900; Election Funding, Expenditure and Disclosures Act 1981; Independent Commission Against Corruption Act 1988; Local Government Act 1993
• Cases Cited: A v Hayden (1984) 156 CLR 532; AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464; Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; Australian Postal Commission v Hayes (1989) 23 FCR 320; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Carr v Baker (1936) 36 SR (NSW) 301; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438; Initial Services Ltd v Putterill [1968] 1 QB 396; FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754; Gedeon v Commissioner of the New South Wales Crime Commission; Dowe v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120; Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) [2010] HCA 1; (2010) 239 CLR 531; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; Minister for Immigration & Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577; MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; Swift v SAS Trustee Corporation [2010] NSWCA 182; SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97; (2010) 187 FCA 109; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 335; QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; QBE Insurance (Australia) Ltd v Motor Accidents Authority (NSW) & Ors [2013] NSWSC 549; R v Quach [2010] VSCA 106; (2010) 201 A Crim R 522; Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; Savita Singh v Motor Accidents Authority [2010] NSWSC 550; TA Miller Ltd v Minister for Housing and Local Government [1968] 1 WLR 992; Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 46 NSWLR 55; Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260
• Category: Principal judgment
• Parties: Ivan Petch (Plaintiff); Independent Commission Against Corruption (First Defendant); The Honourable Paul Toole, MP, Minister for Local Government (Second Defendant)
• Representation: Counsel: J. Hyde/with L.Chan (Plaintiff); A. Mitchelmore (First Defendant); Z. Heger (Second Defendant); Solicitors: Moray & Agnew Lawyers (Plaintiff); NSW Crown Solicitor's Office (First and Second Defendant)
• File Number(s): 2014/00219874
• Publication restriction: None

JudgmenT

1 HIS HONOUR: By summons dated 25 July 2014, Ivan Petch, the plaintiff, seeks orders, the effect of which is to challenge the findings of the Independent Commission Against Corruption (ICAC) relating to the conduct of the plaintiff. It is said the findings of ICAC (hereinafter "the findings") were made without or in excess of jurisdiction.

2 There are seven findings that the plaintiff seeks to impugn, which are summarised in the following way:

(1) A finding that the plaintiff intended improperly to influence the exercise of public official functions by Mr Neish by arranging, through another, to convey a threat to Mr Neish implying that his position as General Manager of the Council would not be safe unless he agreed to establish a Community Consultative Committee to consider (or reconsider) the Ryde Civic Precinct Redevelopment and, by engaging in that conduct, the plaintiff engaged in corrupt conduct for the purposes of ss 8(1) and/or 8(2) of the Independent Commission Against Corruption Act 1988 (the ICAC Act) (Finding 1);

(2) That the plaintiff released to various people confidential information concerning the discovery of adult material on the computer supplied by the Council to Mr Neish in an attempt to encourage its reporting in the media and thereby undermine the credibility of Mr Neish and his reputation and in order to cast doubt on his suitability to serve as the General Manager of Ryde Council (Finding 2);

(3) That the plaintiff deliberately released confidential advice from the Department of Planning & Infrastructure to Anthony Stavarinos on 26 November 2012 and an email from the Group Manager of Environment & Planning of Ryde Council sent to Norman Cerreto on 27 June 2012, in each case with the intention that the information would be provided to Mr Goubran and used by him for his benefit (Finding 3);

(4) That the plaintiff attempted improperly to influence Ms Dickson to resolve in favour of six defendant councillors an ongoing cost dispute in relation to a Supreme Court of NSW proceeding in which the Council was involved by making a threat implying that if she did not do so, he and his fellow defendant councillors would not support her application to be appointed as the General Manager of the Council (Finding 4);

(5) The finding that the plaintiff deliberately failed to disclose his pecuniary interest or conflict of interest arising from his financial dealings with Mr Booth (Owner and Managing Editor of the Weekly Times) (Finding 5);

(6) A challenge to the finding that the plaintiff deliberately released Council information that he knew to be confidential to Mr Cerreto in relation to Council waste collection and disposal contract (Finding 6);

(7) The finding that the plaintiff deliberately released to John Mahony Council information that he knew to be confidential being the same information to which Finding 6 refers (Finding 7).

3 In relation to each of the findings it is said that the jurisdictional pre-conditions for the making of the findings was not satisfied: in the case of Finding 1 that procedural fairness was denied; in the case of Finding 2 that the communication discussed was not confidential; in the case of Finding 3 that a relevant consideration was not taken into account; in the case of Finding 4 there was a failure to take into account a relevant consideration; in relation to Finding 5 that there was insufficient evidence to make the finding; and in relation to Finding 6 a failure to take into relevant consideration. In each case, there is an allegation that there were errors of law and/or jurisdiction and in most instances a reliance upon "insufficiency of evidence".

4 There was also a challenge to the finding that there was a basis in law for the defendant to be subject to criminal investigation for an offence under the Election Funding, Expenditure and Disclosures Act 1981. This challenge was not pressed at the hearing.

5 Generally the submissions of the plaintiff rely upon grounds of no evidence, insufficiency of evidence and, in relation to the latter aspect, unreasonableness and illogicality.

6 Before proceeding any further, although it may otherwise be obvious, it is necessary to state that the plaintiff was, at least during the time during which the conduct to which the ICAC report refers, an elected member of the City of Ryde Council (Ryde Council or the Council). And, as is obvious from the foregoing, ICAC conducted an inquiry into allegations made about the plaintiff's alleged conduct while an elected member of Ryde Council.

7 The investigation referred to in the immediately preceding paragraph concluded with a report (the report) which was presented to the President of the Legislative Council and the Speaker of the Legislative Assembly pursuant to the terms of s 74 of the ICAC Act and entitled "Investigation into the Conduct of certain City of Ryde Councillors and others".

8 It is necessary to deal with the terms of the ICAC Act and the powers conferred on ICAC (together with the conditions qualifying the exercise of such powers) and each of the findings. There is also an interaction between the conduct that was alleged and found to have occurred and the provisions of the Local Government Act 1993, at least as submitted by the plaintiff in these proceedings.

The ICAC Act

9 ICAC is established by the ICAC Act (s 4(1)) and is provided with a number of functions and powers which it may exercise in support of the objects of the Act. Those objects include:

"2A Principal objects of Act

The principal objects of this Act are:

(a) to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body:

(i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and

(ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and

(b) to confer on the Commission special powers to inquire into allegations of corruption."

10 Further, s 12 of the ICAC Act requires ICAC to have regard to the protection of the public interest and the prevention of breaches of public trust as its paramount concern. Together with s 12A of the ICAC Act, the legislation, unsurprisingly, focuses the attention of ICAC on serious corrupt conduct and systemic corrupt conduct, taking into account the role of public officials in the prevention of corrupt conduct.

11 The principal functions of ICAC are prescribed by s 13 of the ICAC Act and include the investigation of any allegation of corrupt conduct or conduct that would allow, encourage or cause the occurrence of corrupt conduct or conduct connected with corrupt conduct.

12 Further, there need not be a complaint in order for ICAC to exercise its powers or functions. ICAC may conduct an investigation on its own initiative (s 20 of the ICAC Act). There is a discretion as to whether or not to investigate except in the case of a referral by both Houses of Parliament, in which case ICAC is required to investigate the matter referred.

13 Formally, ICAC is not bound by the rules of evidence and may inform itself on any matter in such manner as it considers appropriate (s 17 of the ICAC Act). Nevertheless, in relation to the findings of corrupt conduct, it is relevant to note the terms of ss 7 and 8 of the ICAC Act, which define "corrupt conduct" to include matters affecting, directly or indirectly, the honest or impartial exercise of official functions, the dishonest or partial exercise of any official functions, breaches of public trust, the misuse of information acquired in the course of official functions, whether or not for the benefit of the public official, and a number of criminal offences (whether by a public official or otherwise) that adversely affect or could adversely affect the exercise of official functions outlined in s 8(2) of the ICAC Act.

14 Notwithstanding the foregoing, conduct is not corrupt unless it could constitute or involve a criminal offence, a disciplinary offence, reasonable grounds for dispensing with the services of a public official or a breach of the applicable Code of Conduct for a Minister of the Crown.

15 The Court draws specific attention to the use of the word "could" in the foregoing analysis or explanation of that which amounts to corrupt conduct.

The Jurisdiction of the Court

16 As earlier summarised, the effect of the orders sought in the summons is judicial review of the findings of ICAC. Little attention is paid in the summons to delineating precisely the jurisdictional error (if there be any) or the error of law, if that be suggested. It is important to acknowledge that the Court does not sit, in these proceedings, on an appeal from ICAC. Nor does it evaluate afresh findings that are open to ICAC.

17 The plaintiff seeks declaration of invalidity and that the findings were made without or in excess of jurisdiction or were wrong in law.

18 Ultimately, it will not be relevant, but the plaintiff seeks one declaration relating to the finding that the plaintiff "had engaged in corrupt conduct" within the relevant meaning and seeks a declaration that the aforesaid finding is a nullity. Technically, each of the findings would amount to corrupt conduct, or certainly could be said to amount to corrupt conduct, as a consequence of which the plaintiff would seem to need to satisfy the Court that none of the findings were made within jurisdiction, or otherwise than in excess of jurisdiction, or were otherwise than a nullity or wrong in law.

19 The distinction between the original jurisdiction of the Court on judicial review and the jurisdiction of ICAC to make the findings (or even the jurisdiction of a court on appeal) is important. Historically, the New South Wales Supreme Court has inherent and essential jurisdiction to grant what formerly were called prerogative writs and now orders in the nature of those writs and/or declarations for the same effect.

20 It is unnecessary for the Court, as presently constituted, to discuss the distinction between inherent jurisdiction and essential jurisdiction of the New South Wales Supreme Court. If all inherent judicial review jurisdiction had become constitutionally entrenched, as may be suggested by the High Court in Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) [2010] HCA 1; (2010) 239 CLR 531 at 580-581, [98]-[99], unqualifiedly, then the distinction drawn by the High Court at [100] between jurisdictional error and non-jurisdictional error of law would not exist.

21 Thus, the entrenched supervisory jurisdiction of the Court is an entrenched jurisdiction supervisory only for the purpose of enforcing the limits of the exercise of executive and judicial power at a jurisdictional level and not simply because of an error of law that is non-jurisdictional.

22 Nevertheless, there is no privative or ouster clause in the ICAC Act or any other legislative prescription. As a consequence, ss 69 and 75 of the Supreme Court Act 1970 operate without qualification.

23 There is a fundamental distinction between correcting administrative injustice or error by a review of the merits of administrative action and adjudicating the extent of power and legality of the exercise of administrative functions: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1. In Quin, Brennan J (as he then was) said, at 35-36:

"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.

The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

There is one limitation, "Wednesbury unreasonableness" (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for Environment [1986] AC 240 at 249. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined."

24 Jurisdictional error will be disclosed when a decision maker has not taken into account a criterion required by law to be taken into account; or has taken into account an irrelevant criterion (a class significantly narrower than criteria not expressly required to be taken into account); utilised the wrong test or asked itself the wrong question; or misapprehended the nature or limits of its power as a consequence of which it performed an act or made a decision that authority does not sanction: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

25 Jurisdictional error also occurs where there is a denial of procedural fairness. One of the submissions, albeit only faintly put, suggested denial of procedural fairness.

26 Nevertheless, it is extremely important for the Court to distinguish between a merit review and a judicial review, otherwise we are "apt to encourage a slide into impermissible merit review": Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], per Basten JA.

27 The High Court has, since the judgment in Quin, had occasion to deal with that which was described by Brennan J as Wednesbury unreasonableness. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, the Court, by majority, determined that no jurisdictional error had occurred in the determination of the Refugee Review Tribunal. In the course of the reason for judgment, Crennan and Bell JJ said:

"[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion."

28 The effect of the foregoing is to make the test of illogicality and irrationality almost indistinguishable from that which is Wednesbury unreasonableness. In SZMDS, Heydon J, at [85] and [86], deals with illogicality in a similar way to that of Crennan and Bell JJ. A Full Court of the Federal Court (SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1), by majority, determined that the comments of Heydon J are consistent with (or not inconsistent with) those of Crennan and Bell JJ.

29 Since that time the Federal Court seems to have adopted that approach universally: see Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260; Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577; SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97; (2010) 187 FCA 109; MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26.

30 The joint judgment of Gummow ACJ and Kiefel J in SZMDS treated illogicality differently, but on the authority of the Full Court of the Federal Court, and by virtue of the orders proposed, the joint judgment of Gummow ACJ and Kiefel J in SZMDS was a minority judgment.

31 The issues arose again in the High Court, albeit indirectly, in discussing whether matters considered by the Administrative Appeals Tribunal under the Migration Act 1958 were "logically probative" to the issue required to be determined by the Tribunal: FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754.

32 Before dealing in a more detailed way with the judgment of the High Court in FTZK, it is necessary to deal with what has been described by the plaintiff in these proceedings as "jurisdictional fact". I have, in previous judgments, described jurisdictional fact as a misnomer. In QBE Insurance (Australia) Ltd v Motor Accidents Authority (NSW) & Ors [2013] NSWSC 549, the issue was analysed by reference to earlier judgment in Savita Singh v Motor Accidents Authority [2010] NSWSC 550 and the analysis therein of the High Court judgments in Gedeon v Commissioner of the New South Wales Crime Commission; Dowe v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at 139; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. I also refer to the judgment of the New South Wales Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 46 NSWLR 55 at [37]-[49] and I adhere to the analysis at [34]-[35] and [49], [54]-[55], [65], [70]. In the Court of Appeal in QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442, the Court (Basten JA with whom Ward JA and Young AJA agreed) discussed the matter and stated:

"[17] If it is the state of satisfaction of the officer which is the precondition to referral, that satisfaction can be reviewed for relevant legal error. On the other hand, if the precondition is the proper characterisation of the material relied on, then the aggrieved party can invite a judge to determine, in judicial review proceedings, whether or not that precondition is satisfied. It is sometimes said that each of these approaches involves a "jurisdictional fact", a categorisation adopted by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130]. However, where the precondition is the state of satisfaction of an officer, the appellation "jurisdictional fact" is misleading. To point up the difference, where the precondition depends on the existence of primary facts, the descriptor of "objective facts" is used, although this merely means that the facts must be established to the satisfaction of the reviewing court, on the evidence before it, regardless of the opinion of the decision-maker: see Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [41] (Timbarra Protection Coalition) per Spigelman CJ; D'Amore v Independent Commission Against Corruption (2013) 303 ALR 242; [2013] NSWCA 187 at [241] (D'Amore).

...

[29] QBE did not dispute that the question was ultimately one of statutory construction, nor that inconvenience (or disfunctionality in the language of Aronson and Groves, Judicial Review of Administrative Action, 5th ed, Law Book Co, 2013, p [4.560]) was a powerful consideration: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 442 at [63] per Spigelman CJ; Timbarra Protection Coalitionat [91]; Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376; [2005] NSWCA 269 at [134]-[135]. On the other hand, QBE noted that there were seminal cases in which, despite inconvenience and the need to make evaluative judgments, the courts had found a statutory intention to create jurisdictional facts, including the decision in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400; [2000] HCA 5.

...

[31] It has long been accepted that matters requiring evaluative judgment are likely to be intended by parliament to be determined, subject to ensuring compliance with legal parameters, by the repository of the power: Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; 142 ALR 622. If the statutory preconditions involved questions of law, which is not the present case, a different presumption might arise: Plaintiff M70/2011 v Minister for Immigration and Citizenship (Malaysian declaration case) (2011) 244 CLR 144;[2011] HCA 32 at [116] per Gummow, Hayne, Crennan and Bell JJ. A further consideration in the present case is that control of the medical assessment process has been largely, though not entirely, removed from the trial court. If it were thought appropriate to review the findings of the proper officer under s 62, on the merits of the application, one might have expected that function to be conferred on the prospective trial court. The complaint of failing to refer the application for further medical assessment is not far from a complaint of procedural unfairness which, if made good, would entitle the trial court to reject a certificate, if that course were necessary to prevent substantial injustice: s 61(4).

...

[36] Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone (1976) 135 CLR 110 at 118-19; per Gibbs J; D'Amoreat [220]. The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; 78 ALJR 992; [2004] HCA 32 at [38]; per Gummow and Hayne JJ. Further, as explained by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407 at 432:

If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.

[37] Such standards set the jurisdictional parameters of the power conferred on the officer. QBE also relied upon error of law on the face of the record as a basis for setting aside the determination of the proper officer. That approach involved a number of propositions which were not adequately explored. For example, it assumed that the "record" to be reviewed for legal error included all of the material before the proper officer, together with proper officer's reasons. So far as the reasons were concerned, counsel called in aid s 69(4) of the Supreme Court Act which provides that "the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination". However, the proper officer was clearly not a "court" for the purposes of the section and there was no discussion as to whether she was properly to be characterised as a "tribunal": compare Masters v McCubbery [1996] 1 VR 635, dealing with the equivalent provision in the Administrative Law Act 1978 (Vic), which has a definition of "tribunal". Nor was attention paid to the scope of the phrase "ultimate determination". When pressed, counsel for QBE submitted that it might not be necessary to rely on s 69(4) and that the common law would recognise the application by QBE, together with the attached documentation and the reasons of the proper officer, into which the decision was incorporated, as constituting the "record". The cases relied upon, however, included Craig v South Australia (1995) 184 CLR 163; (dealing with an inferior court, but discussing tribunals) and R v Northumberland Compensation Tribunal; Ex parte Shaw [1952 1 All ER 122; [1952] 1 KB 338 (dealing with a statutory tribunal). Further consideration is required in order to determine how these principles apply to the officer of an authority performing a gateway function in filtering applications for further assessment. If the requirement that there be a "record" is to be ignored or deprived of content, all administrative decisions will be reviewable for any kind of error of law. Whether or not that approach should be adopted as a matter of policy, it is not the current basis for judicial review under s 69."

33 I return then to judgment of the High Court in FTZK. FTZK was an unusual judgment in that it involved the Tribunal stating a number of conclusions, none of which expressly dealt with the criterion by which the Tribunal was required to measure the status of the appellant. There are comments of the High Court that, without full analysis, seem to apply the criminal standard of proof, namely whether an inference arises inconsistent with the conclusion reached by the Tribunal. However the key to the understanding of those aspects, in my view, is derived from the comments of Hayne J at [39] in which his Honour describes the factors, normally referred to as consciousness of guilt issues, in the following terms:

"[39] As already indicated, none of the three other factors relied on by the Tribunal could, in the circumstances of this case, logically support the conclusion which the Tribunal reached. Each of those factors was as consistent with the appellant's innocence of the crimes alleged as it was with his guilt. Each could support the conclusion which the Tribunal reached only if, considered separately or in conjunction with other matters, the appellant, by that conduct, impliedly admitted guilt of the crimes alleged. But once it is recognised that the appellant was found to have a well-founded fear of persecution for a Convention reason, his departure from China, his telling lies to obtain the first visa he obtained and his telling lies or giving evasive testimony in connection with his application for a protection visa are as readily explained by his desire to escape from China for innocent reasons as they would be by a desire to run away from the scene of a crime..."

34 The issue of criminal conduct was relevant to the determination of the test to be applied by the Tribunal, as Hayne J makes clear. The question answered by the High Court was not whether a reasonable inference inconsistent with guilt was available, but, rather, whether the inference inconsistent with guilt was as available as the inference consistent with guilt. This is, to use the term of Sir Frederick Jordan CJ, two inferences that are "equipoised": Carr v Baker (1936) 36 SR (NSW) 301 at 306-307. Therefore, the judgment in FTZK does not apply a different test or standard of proof than its predecessors.

35 As a consequence of the foregoing, for the plaintiff to succeed in these proceedings, the plaintiff must show a jurisdictional error (including denial of procedural fairness) or an error of law on the face of the record, which includes the reasons for the ultimate determination (assuming for present purposes that ICAC is a court or tribunal).

36 Thus, insufficiency of evidence, which was relied upon at great length by the plaintiff, does not give rise to a successful judicial review in this Court, unless the evidence is so insufficient as to amount to no evidence of a fact or unless a conclusion of fact is because of the insufficiency, illogical or irrational. It is insufficient for this Court to come to a conclusion, if it were so minded, that it would be different to the conclusion of ICAC, except in the circumstances just mentioned. The evaluation of evidence is a matter for ICAC.

37 One other matter should be the subject of comment. Much attention was paid to the evidence before ICAC. To the extent that this attempted to go beyond the reasons given by ICAC for its conclusions, it would seem, prima facie, to be an inappropriate attempt at merits review and to seek to have the Court slide into material that is inappropriate to consider in determining whether error of law has been disclosed.

38 Given that the parties have paid little attention to this aspect, it is inappropriate that I decide the matter on that basis and I will deal with the matter as it has been argued.

Procedural Fairness

39 The submission that the plaintiff was denied procedural fairness is untenable and unarguable. It is based upon the proposition that counsel for the plaintiff was not permitted to ask a witness (Mr Abboud) certain questions. The immediate relevance of the questions is not apparent. Nevertheless the exchange is in the following terms:

"Counsel for Mr Petch: When did you last have a conversation with him?

Witness Answer: A couple of weeks ago.

Counsel for Mr Petch: Alright. And what was that concerning?

Assistant Commissioner: I'm sorry, relevance?

Counsel for Mr Petch: Alright. Perhaps I'll approach it this way. On or about 4 April 2012 did you have a conversation with the Mayor, that is the former Mayor?

Witness Answer: On 4 April, that's the Tuesday?

Counsel for Mr Petch: Correct?

Witness Answer: Yeah, I saw him that night, Tuesday night at a Rotary meeting.

Counsel for Mr Petch: And did you have a conversation with him that evening?

Witness Answer: It was a Rotary meeting..."

40 On no basis could it be suggested that the question by the Assistant Commissioner asking for the relevance of a particular question (without ruling on it) could be a denial of procedural fairness. In those circumstances, it is unnecessary for the Court to determine how, even if a ruling were to have been made and even if the ruling were incorrect, an incorrect ruling on the relevance of evidence in a line of questioning could have occasioned a denial of procedural fairness. A denial of the right to cross-examine may, but will not always, be a denial of natural justice: see TA Miller Ltd v Minister for Housing and Local Government [1968] 1 WLR 992 at 995 and the discussion contra in Australian Postal Commission v Hayes (1989) 23 FCR 320 at 324-327.

41 On no account could it be said that ICAC denied Mr Petch, or his representatives, a right to cross-examine or to controvert material put against him. The allegation of denial of procedural fairness seems to relate only to Finding 1. The allegation is rejected and the ground must fail.

Other challenges to Finding 1: Approach and Offer to Mr Neish

42 Essentially, the submission on behalf of the plaintiff depends upon two propositions: that there was no direct threat to Mr Neish, only an implied one; and that there is no direct evidence that Mr Petch asked Mr Goubran to instigate the conversation which was held to be an implied threat.

43 While I have serious doubts as to whether the evidence before ICAC is a matter on which the plaintiff can rely to show "illogicality" or "irrationality" or "error of law", the evidence is sufficiently summarised in the ICAC report. Because the submission by the plaintiff, or on his behalf, challenges the findings, and only for that reason, I have traced back the summary of evidence by ICAC. It is fair to say that the summary is, in relation to its effect on the plaintiff, conservative, but accurate.

44 At the same time, it may be said that other persons may not have made the same findings, because such persons may have accepted different witnesses or evidence. Nevertheless, the evidence is as summarised by ICAC.

45 On 18 October 2011, the Council resolved to delegate powers to the then General Manager, Mr Neish, for the expression of interest, tendering and selection process for a redevelopment project. Much has been made as to whether that delegation was lawful. I will deal with that later in these reasons.

46 Discussions and negotiations were held with developers. An evaluation panel had been established and on 21 May 2012 the evaluation panel met and finalised the marking of a tender by Lend Lease, which contained two alternative proposals. The evaluation panel resolved to reject both proposals.

47 After that decision, the Council resolved, at a meeting on 12 June 2012, to enter into negotiations with Lend Lease in relation to a significantly different development plan. The Council delegated to Mr Neish the task of negotiating the plan with a view "to entering into a project delivery agreement". The plaintiff, with the support of a number of local residents, was opposed to the development program.

48 On 30 March 2012, Mr Abboud, a local real estate agent known to a number of Ryde councillors received a message to call Mr Goubran, a property developer and an associate of the plaintiff for more than 30 years. The message said that Mr Abboud would know what the call was regarding (ICAC report at 13).

49 On the evidence accepted by ICAC, Mr Abboud did not know what the call was about. Nevertheless, he telephoned Mr Goubran, they agreed to meet and at that meeting, including a telephone conversation later in the day, words were spoken. Those words were the subject of conflicting evidence.

50 Mr Abboud's version was accepted by ICAC. Mr Goubran explained a proposal that he wanted Mr Abboud to convey to Mr Neish. The proposal related to the establishment of a consultative committee, the effect of which would have been to delay the proposed redevelopment at least until after the next election when, on other ICAC findings and/or evidence, it was likely the plaintiff would have political control of Council. Mr Goubran told Mr Abboud that he should tell Mr Neish that if he agreed to the proposal being put then his (Mr Neish's) position as General Manager would be secure after the 2012 Local Government elections.

51 Mr Abboud conceded that there was no "direct threat" but made it clear that his understanding of the conversation was "that there was an implied threat to Mr Neish's employment".

52 Mr Goubran's evidence was to an almost directly opposite effect.

53 There was a meeting between Mr Abboud and Mr Neish, during which the implied threat was conveyed. Other evidence was adduced as to the changing nature of the Community Consultative Committee and in particular that the plaintiff was to be on the Committee about which, according to Mr Abboud, Mr Goubran had said that the plaintiff had changed his mind as to the composition of the Committee.

54 Notwithstanding the denials of Mr Goubran, he did admit that he discussed with the plaintiff the formation of the Community Consultative Committee on or about 13 April 2012.

55 ICAC found Mr Abboud to be a reliable witness and accepted his recollections. ICAC dealt with whether Mr Goubran was acting on his own initiative in conveying the threat through Mr Abboud to Mr Neish or whether he was acting on behalf of another. ICAC took into account the false or inaccurate evidence of Mr Goubran that he had discussed the proposal with the then Mayor, who, in turn, denied any such discussion and any such meeting. ICAC rejected, on that basis, that Mr Goubran took the proposal to Mr Abboud at the request of the then Mayor.

56 ICAC also took into account the evidence of the plaintiff, his initial denial and ultimate acceptance of certain motions put before the Council on 8 May 2012, and his stated evidence that his sole objective was to stall the approval of the redevelopment project which would have been the effect of the establishment of the Consultative Committee.

57 Another councillor gave evidence that the plaintiff had come up with the idea of creating the Consultative Committee, as did others. The abundance of circumstantial evidence, the motivation and the fact that the plaintiff was the only person amongst the possible instigators of the idea who would have been capable of carrying through such threat, satisfied ICAC that it was the plaintiff who suggested the creation of the Committee and who was responsible for the wording of the motion. Further, it also satisfied ICAC that the motion was intended to delay the redevelopment project.

58 ICAC then spent a significant part of Chapter 2 of the Report (page 16 and following) on whether the plaintiff was the person responsible for instigating or suggesting an implied threat to Mr Neish as to his employment post the 2012 election. In so doing, it took into account all of the foregoing as well as a number of significant inconsistencies in the evidence of the plaintiff. The ICAC report also refers to telephone records and telephone conversations between the plaintiff and Mr Goubran at or about the time that these matters would have had to have been planned.

59 Short of repeating all that is in the report, it is sufficient to state that ICAC dealt with the question that it was required to deal with. It determined, on the basis of the material before it (bearing in mind it was not bound by the rules of evidence) and the determination by it of the credit of various witnesses: that conversations occurred between the plaintiff and Mr Goubran just before and at the time that Mr Goubran asked Mr Abboud to convey the threat to Mr Neish; the motive of the plaintiff as a staunch opponent of the redevelopment, the content of the threat as being illegitimate and inappropriate threatening Mr Neish's employment as a consequence of failure to abide by the request; and the proposition that the only way in which Mr Neish would likely agree to such a proposal would be to threaten him in a way that Mr Neish would be aware the plaintiff could carry through.

60 Moreover, ICAC took into account the conduct of the plaintiff in raising allegations of illegality about Mr Neish to him and threats that he may be personally liable for any breach of the Local Government Act in relation to his conduct. In other words, ICAC took into account what might be called tendency evidence, being evidence that threats, or similar conduct, was occasioned by the plaintiff against Mr Neish in an attempt to stop the redevelopment from proceeding.

61 As a consequence of its analysis of the evidence, ICAC formed the view that the plaintiff asked Mr Goubran to have conveyed to Mr Neish that his job would be secure beyond the 2012 Local Government elections but only if he agreed to the proposal for the establishment of the Consultative Committee, the effect of which would have been to delay the redevelopment. Such a conclusion was available on the basis of the material that was before it, bearing in mind that the rules of evidence did not directly apply to ICAC.

62 At page 18 of the report, ICAC referred to the application of the civil standard of proof, taking into account the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362. It recited the definition, or referred to the definition, of corrupt conduct and its approach, set out in Appendix 2 to the report.

63 The approach of ICAC, referred to at pages 18-19 of the report and at Appendix 2, discloses no error of law. The findings disclose no irrationality or illogicality and there is sufficient material upon which the findings could have been made.

64 The challenge to Finding 1 cannot succeed.

65 Before leaving this area, I should note some of the matters raised by the plaintiff that are not otherwise included in the foregoing. In particular, the plaintiff relied upon the last paragraph of Chapter 2 (report at page 21). The report there states that ICAC was not of the opinion that consideration should be given to obtaining the advice of the DPP with respect to prosecution. The plaintiff submits that this shows the lack of sufficient evidence to warrant the findings.

66 The aforementioned paragraph and statement by ICAC says and discloses nothing of the kind. It discloses an appreciation by ICAC of the difference between admissible evidence to establish proof of a criminal offence at the criminal standard and the obtaining of material by ICAC that would allow it to determine a matter on the balance of probabilities. The material obtained by ICAC may not, in a criminal proceeding, be admissible evidence.

67 Further, the plaintiff submits that no express findings were made, that the demands were "unwarranted" within s 249L or that they were "menaces" within s 249M, each of the Crimes Act 1900, in circumstances where the offence to which ICAC was referring was an offence under s 249K of the Crimes Act.

68 The submission misses the point. The necessary finding for the purposes of making the finding of corrupt conduct under s 13(3A) of the ICAC Act was set out at page 19 in the following terms:

"The Commission [namely ICAC] is satisfied for the purpose of s 9(1)(a) of the ICAC Act that, if the facts it has found concerning [the plaintiff's] involvement in the approach to Mr Neish, as outlined above were to be proved on admissible evidence to the criminal standard of beyond reasonable doubt and accepted by an appropriate tribunal, there would be grounds on which such a tribunal would find that [the plaintiff] had committed the offence of being an accessory before the fact to the making of an unwarranted demand with menaces with the intention of influencing the exercise of a public duty contrary to s 249K of the Crimes Act."

69 The foregoing statement by ICAC was an express statement of the findings necessary for the making of a finding of corrupt conduct. The jurisdictional precondition prescribed by s 13 of the ICAC Act has been satisfied.

70 There are some evaluations that do not need to be expressed. First, in making the finding it did, ICAC expressly made a finding that the threat was "an unwarranted demand" and expressly made a finding that the unwarranted demand was made "with menaces". The fact, and it is a fact, that ICAC did not set out the definitions in s 249L and s 249M of the Crimes Act does not qualify the finding made, which finding satisfies the jurisdictional requirement.

71 There are some conclusions that need not be set out. Sections 249L and 249M of the Crimes Act are definition sections. In making the finding it did, ICAC used the words "otherwise defined" in the sections about which complaint is made. Further, such findings go without saying. Is it seriously suggested that, ICAC having found that the plaintiff was the instigator of a threat to a person's employment, that the plaintiff "believed that the use of the [threat to employment] is a proper means of reinforcing the demand"? Further, can it seriously be suggested that such a threat is not "an express or implied threat of any action detrimental or unpleasant to another person", made because Mr Neish "holds a public office"?

72 The threat to the security of employment of a person is, on any analysis, a threat that is governed by s 249M and not one which could, on any analysis, be a proper means of reinforcing the demand for the creation of the Committee.

73 Unlike the situation in FTZK, this is not a situation where there is any other reasonable hypothesis consistent with innocence of an offence under s 249K (assuming the findings made by ICAC were correct) as a result of the definitions in s 249L or s 249M of the Crimes Act. This Court's jurisdiction does not go so far as to determine the "correctness" of the findings of fact, once there is evidence upon which those findings can be made. There is such evidence and the challenge to Finding 1 must fail.

Finding 2: Attempts to Remove Mr Neish

74 Finding 2 relates to the release of allegedly confidential information. The primary facts are uncontroversial. A member of the IT staff of the Council, while working on Mr Neish's laptop on 31 January 2013, discovered adult material, being pornography, on the computer's hard drive. The IT officer, appropriately, reported the matter to the Mayor (being the plaintiff) and handed the plaintiff a compact disc. No formal notification or complaint was made until 5 February 2013.

75 On the afternoon of 5 February 2013, the plaintiff met with the Council's human resources manager, informed her of the complaint and stressed the confidentially of the material and the enquiry. A further conversation occurred with the Council's group manager of corporate services, also stressing the confidential nature of the information and reminding the plaintiff that he, as the Mayor, was required to deal with a complaint against Mr Neish, the general manager.

76 Those facts are recited by ICAC in its report at page 23. ICAC also recited Council's Code of Conduct and a series of conversations, some of which were lawfully intercepted telephone calls between the plaintiff and a number of others, in which the plaintiff informed those others of the discovery of the adult material on Mr Neish's computer (ICAC report page 24). One of those calls, to Mr Salvestro-Martin on 31 January 2013, discussed means for distribution of the material including sending it to ICAC, giving it to local media and to a publicist/freelance journalist with whom they were each familiar. Mr Salvestro-Martin suggested the publicist/freelance journalist as the most appropriate way.

77 It seems that everyone concerned considered the approach of Mr Petch, the plaintiff, as improper. That was the view of Mr Salvestro-Martin; it was the view of Mr Neish; it was, at least implicitly, the view of Mr Cerreto, another person to whom the material was given; and it was the view of the plaintiff.

78 In his evidence in the proceedings (Court book Vol 3 page 1094-1095) the following exchange occurs:

"Did you also understand in accordance with 5.9 that you had to maintain the integrity and security of confidential documents or information in your possession or for which you were responsible?

Answer: Right.

You acted in a manner completely contrary to that, didn't you?

Answer: I accept that now, yes.

You knew it at the time, didn't you?

Answer: No.

Alright. In respect of 5.10(e) do you see that in addition to your general obligations under the Code of Conduct you had an obligation or it says you must not use confidential information with the intention to cause harm or detriment to your Council or any other person or body?

Answer: Correct.

Do you accept that your actions in respect of this material were completely contrary to that?

Answer: Obviously from what's printed there, yes, I do, and I'd also say with the benefit of hindsight now that maybe I should have acted in a, a different manner."

79 This acceptance by the plaintiff of the conduct being a breach of the Code of Conduct is sufficient to form the basis for the finding, by ICAC, referred to as Finding 2.

80 Of course, I do not suggest that, were the plaintiff to be incorrect in his understanding of the Code of Conduct, such an admission would amount to impropriety or a breach of the Code not otherwise available. Nevertheless, the evidence is overwhelming.

81 The plaintiff received information as the Mayor that was available to him only as the Mayor and which he received in that capacity. He knowingly sought, surreptitiously, to release that information into the media for comment and for the purpose of damaging Mr Neish. Those findings and those inferences are unassailable. They are set out at pages 24-27 of the ICAC report.

82 The challenge to Finding 2 must fail, to the extent that it relies upon an insufficiency or absence of evidence.

83 It is unnecessary for me to repeat the comments made as to the disclosure by the plaintiff of material relating to the ICAC investigation. At one level it may have been a breach of the ICAC Act. At another level, it may have amounted to perjury.

84 The challenge to Finding 2 also related to whether ICAC had demonstrated that the information was confidential or was disclosed in circumstances where the plaintiff had imposed upon him an obligation in relation to confidentiality or had breached the obligation of confidence.

85 The difficulty with such a challenge is that it seeks to raise the evaluation of ICAC to jurisdictional fact. The findings of fact by ICAC are not jurisdictional. The conclusion that the common law offence of misconduct in public office was, if there were admissible evidence, proved to the criminal standard, committed, was jurisdictional to the finding of corrupt conduct. But that conclusion, relating to misconduct in public office, involves the satisfaction of ICAC. The reference, above, to the statements of Basten JA in QBE Insurance (Australia) Ltd v Miller is apposite. Those statements as to satisfaction are consistent with the approach continually adopted since the judgment of the High Court in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369.

86 The provisions of s 13(A) of the ICAC Act do not render engagement in conduct that constitutes or involves an offence a jurisdictional fact, the objective non-existence of which would deny ICAC the ability to make findings. That which is required by the sub-section is the satisfaction of ICAC that the person has engaged in such conduct.

87 The primary facts are indisputable. Also indisputable is that ICAC was satisfied that it involved the common law offence of misconduct in public office. ICAC (at report page 28) set out the elements of the offence, following the judgment of the Victorian Court of Appeal in R v Quach [2010] VSCA 106; (2010) 201 A Crim R 522, and then expressed its conclusion in the following passage:

"To constitute the common law offence of misconduct in public office, the relevant conduct must be serious and meriting criminal punishment having regard to the responsibilities of the office holder and the extent of the departure from those standards. As Mayor, [the plaintiff] was in a considerable position of power within the Council, especially when it came to complaints relating to the conduct of the General Manager. The 2011 Code of Conduct dictated that the Mayor was an appropriate person to deal with such complaint. The Code of Conduct, however, was also clear about the confidential manner in which such complaints should be handled, a point that [the plaintiff], himself, emphasised when discussing the complaint with other Council staff.

[ICAC] is satisfied for the purpose of s 9(1)(a) of the ICAC Act that, if the facts it has found concerning [the plaintiff's] release of confidential information were to be proved on admissible evidence to the criminal standard of beyond reasonable and accepted by an appropriate Tribunal, they would be grounds on which such a Tribunal would find [the plaintiff] had committed the common law offence of misconduct in public office."

88 ICAC went on to express the view that it was also satisfied that an appropriate Tribunal, would, to the requisite standard and expressing the requisite tests, be satisfied that the plaintiff had committed disciplinary offences.

89 Again, the challenge to this finding must fail. The fact, if it were the fact, that the Court may take a view that the offence was not as serious, as ICAC had found, is not a ground upon which a person may challenge, on judicial review, the findings of ICAC. The foregoing does not suggest, and should not be taken to suggest, that the Court has a different view from that expressed by ICAC.

Finding 3: Release of Confidential Information to assist Mr Goubran

90 The primary facts involved in this finding are uncontroversial. ICAC found that the plaintiff released Department of Planning & Infrastructure advice in relation to zoning changes to a person outside the Council who had a financial interest or who obtained an advantage in receiving the information. It is not suggested that Council had authorised the release of the information.

91 The plaintiff sought to challenge this finding on the basis that there was a lawful excuse pursuant to s 664 of the Local Government Act. Before ICAC, the plaintiff submitted that the disclosure of the information was to overcome an iniquity that disadvantaged the person to whom the information was released.

92 There is no suggestion that the information, but for the submissions put before, would have been otherwise than confidential. There is no dispute that the information in the hands of the people to whom it was disclosed was a matter of significant advantage. There is also no dispute that the information was information obtained by the plaintiff on a confidential basis in his capacity as Mayor and/or councillor, i.e. in public office.

93 The submissions that were put to the Court were to the same effect as to those put to ICAC. In other words, the plaintiff sought to have the Court reassess the issues assessed by ICAC.

94 The submission seeks to import into the duty of confidentiality of a public official the defences that may be available to restrain a breach of confidence in equity. The issues were dealt with, in a slightly different context, by Campbell J (as his honour then was) in AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464. In that judgment, Campbell J dealt with the different provisions relating to a breach of Corporations Law 2001 (Cth) as against the restraining of and defence to a breach of confidence in employment or under equity.

95 Campbell J referred to a passage in A v Hayden (1984) 156 CLR 532 at 546 where Gibbs CJ said:

"It is clear that a person who owes a duty to maintain confidentiality will not be allowed to escape from his obligation simply because he alleges that crimes have been committed and that it is in the public interest that he should disclose information relating to them. He bears the burden of establishing the facts on which he relies to relieve him of the obligation."

96 Campbell J also referred to a passage at 547 at A v Hayden in the following terms:

"Similarly, where an obligation of confidentiality has arisen, whether as a result of express contract or because the relationship between the parties gives rise to a duty of confidence, the party who alleges facts which show that the obligation does not extend to the circumstances of the case must prove his allegations. That means that in the present case the defendants must establish, at least prima facie that the failure to disclose the information would tend to obstruct the course of justice and would be contrary to the public interest. It would not be enough to justify the disclosure of the confidential information in the present case that the police have requested it. It would be necessary to show, at the very least, that there is reasonable ground to believe that any plaintiff whose identity it is sought to disclose is implicated in the commission of an offence. Put in another way, at least what has to be shown prima facie is that there is "a bona fide and reasonably tenable charge of crime" against any plaintiff whose identity is sought to be disclosed. The bona fides of the police in the present case is not in doubt, but it is a question whether any charge against each plaintiff is reasonably tenable."

97 His Honour went on to note that the mere allegation that conduct which counts as iniquity has been committed is not enough and cited authority to that effect. Ultimately, Campbell J concluded, at [208] of AG Australia Holdings Ltd v Burton, the following:

"[208] It would, in my view, be extending the law to decide that, even in the exclusive jurisdiction of equity, the protection of confidence did not extend to information which was relevant to an allegation of iniquity, though not itself disclosing that iniquity.

[209] This provides an additional reason, in my view, why, even if the principle that there is no confidence to protect an iniquity had application in the present case, where an express obligation of confidence is sought to be enforced, that principle is not shown to apply to the facts of the present case."

98 In the current situation the DPI advice disclosed by the plaintiff could, when compared to other documents, be evidence that a fraud or some misconduct by an officer of the Council had occurred. But while the document disclosed by the plaintiff does not, itself, disclose the iniquity, it is relevant to establishing that iniquity.

99 Ultimately, in the case of public officials and material received in confidence by them, where it is thought that the material discloses a fraud or corrupt conduct, the public officer, in receipt of the information, would be free to disclose it to a person capable of investigating and determining the improper conduct. I would respectfully adopt the passage and the observations of Lord Denning MR in Initial Services Ltd v Putterill [1968] 1 QB 396 at 405-406, in which his Honour said:

"The disclosure must, I should think, be to one who has a proper interest to receive the information. Thus it would be proper to disclose a crime to the police; or a breach of the Restrictive Trade Practices Act to the registrar. There may be cases where the misdeed is of such a character that the public interest may demand, or at least excuse, publication on a broader field, even to the press."

100 If an iniquity were to have occurred, and I make no finding to that effect, then it would need to be disclosed to a person who could investigate and punish the misdeed or, at least, correct it. In this case, the disclosure of the information was not for the purpose of correcting the misdeed, but rather of advantaging a person or entity consequentially affected by the misdeed.

101 In order words, the plaintiff was not seeking to undo the fraud or corrupt conduct (if it were such) but to arm an associate with material from which it could argue unequal treatment and thereby obtain an advantage.

102 In my view, with the exception of persons who are "whistle-blowers" to appropriate investigative bodies, the defence of redressing an iniquity does not ameliorate a breach of proper conduct by the disclosure of confidential information to persons other than such investigative or prosecuting bodies.

103 Even if I were persuaded otherwise as to the defence of "iniquity", the defence does not arise on the facts as found. First, there is no factual finding, nor a basis for a factual finding, that the plaintiff's intention was to correct the fraud in the document. It is not clear on the evidence which of the two documents has been altered.

104 Secondly, the parties to whom the document was released had no interest in redressing the fraud or correcting the document; their interest was the obtaining of a consent to their development application for which purpose the document in the form first used gave greater support.

105 Thirdly, the fraud in the document, assuming that the fraud occurred in the second iteration of the document and not the first, would have altered the development advice upon which Council would have based any decision to grant, or not grant, development consent. Thus, the fraud in the document was not, itself, the iniquity sought to be redressed by the release of the document to parties with a pecuniary interest in its possession.

106 Lastly, the defence of "iniquity", if it be properly called a defence, is an aspect of the equitable principles that the courts will not lend themselves to a fraud. Thus, where a party seeks to restrain the provision of use of information that otherwise would be confidential, the courts will not enjoin parties in relation to the release of that information if to do so would perpetrate or continue a fraud or iniquity. Fundamentally different issues arise when the courts are concerned with a breach of a Code of Conduct amongst public officials in circumstances where there are significant avenues available for persons to report and correct fraud or misconduct in public office.

107 Ultimately, the plaintiff has not persuaded the Court that the document was released for the purpose of curing an iniquity. Nor has the plaintiff satisfied the Court that the document was not confidential. Each of these matters may be matters upon which reasonable people would differ. Each of the matters was the subject of consideration by ICAC as part of satisfying itself of the jurisdictional preconditions for the making of a finding of corrupt conduct.

108 If there were error by ICAC in the evaluation of the material and the consideration of this argument, it is error going to whether or not ICAC should be satisfied in accordance with the ICAC Act and not error with which, in the exercise of judicial review and/or the exercise of discretion as to whether a remedy would issue, this Court should intervene.

109 The challenge to Finding 3 is rejected.

Finding 4: Attempt to influence Acting General Manager

110 Again, the primary facts in issue in this regard are uncontroversial. ICAC made findings of fact, each of which were open to it and most of which were uncontroverted. Briefly, Council had appointed an acting General Manager, Ms Dickson, after Mr Neish had departed the Council. At the time, Council and a number of councillors, including the plaintiff, were defendants in proceedings taken by Mr Neish. An issue arose as to costs.

111 This Court (Schmidt J) issued orders, by consent, which together with certain undertakings given by the Council and other defendants, resulted in the proceedings being stood over in an attempt to resolve the matter of which of the parties should pay the legal costs. Council delegated to Ms Dickson the ongoing management of the proceedings in the Supreme Court, which, at that stage, involved almost entirely the legal cost question. The plaintiff, who was a defendant in the proceedings individually, had separate representation and/or advice. Representation was by one solicitor on behalf of all of the six defendant councillors and certain advice was obtained by the plaintiff from another solicitor.

112 The solicitor, retained to advise the plaintiff, advised the Council, on the basis of certain experience, that Council could and should pay the legal costs of each of the six defendant councillors. This advice was unsolicited.

113 The plaintiff sought to speak with Ms Dickson in relation to this costs issue. The response to which, from Ms Dickson, was that she told him she considered it inappropriate for them to discuss the matter. Apparently, according to Ms Dickson, the plaintiff was upset and angry from that conversation and her advice that she was awaiting material from Council's insurers.

114 The plaintiff then positioned himself so that he was about 30 centimetres from Ms Dickson; he spoke more loudly; and his face was red. He repeated to Ms Dickson that "he thought that she should come to a position that was consistent with the advice of [the solicitor for the plaintiff] and that such a decision would be looked on favourably by the majority of councillors". Further, Ms Dickson recalled the plaintiff saying that "she would need his support to get his fellow councillors across the line when it came to their decision on the appointment of a General Manager", for which Ms Dickson was an applicant and was currently the acting General Manager.

115 ICAC found that the plaintiff intended to influence improperly Ms Dickson's exercise of her public official functions by making a threat implying that, unless she resolved the costs issue in a way favourable to the plaintiff and his fellow defendant councillors, they would not support her application to be appointed as Council's General Manager.

116 Frankly, on the basis of the findings of fact made by ICAC, such a finding is inescapable. Further, ICAC found such conduct was corrupt conduct within the meaning of the ICAC Act.

117 In this Court, the plaintiff seeks to impugn the findings on the basis that ICAC did not making findings under s 249L of the Crimes Act, that the plaintiff did not believe he had reasonable grounds for making the demand or that he did not believe that the use of menaces is a proper means of reinforcing the demand.

118 In my view, such a submission is untenable. At page 40 of the ICAC report, ICAC sets out the provisions of s 249K of the Crimes Act, in its entirety. ICAC sets out the definition of "menaces" and finds that "if the facts found concerning [the plaintiff's] attempt to influence Ms Dickson, as outlined above, were to be proved on admissible evidence to the criminal standard of beyond reasonable doubt and accepted by an appropriate Tribunal, they would be grounds on which such a Tribunal would find that [the plaintiff] had committed the offence of blackmail contrary to s 249K of the Crimes Act or, alternately, the common law offence of misconduct in public office (the elements of which have been outlined earlier in this report)".

119 The plaintiff seeks, in this Court, to have the Court go behind the assessment of ICAC as to the operation of s 249K.

120 In my view, as I made clear during the course of argument, the demand for the payment of the six councillors' costs by Council was not a demand for which it could be said the plaintiff did not believe that he had reasonable grounds for making the demand. I here refer to the content of the demand, not the manner of its publication.

121 However, the provisions of s 249L of the Crimes Act provide that a demand is unwarranted other than in circumstances where two conditions are satisfied. Those two conditions are that the person believes he has reasonable ground for making the demand and the demand is "reinforced" by proper means.

122 As just indicated, in my view, if it were appropriate for the Court to take a view, the demand for the payment of costs was not unreasonable and otherwise there is no evidence to suggest that a demand for the payment of costs was believed to be other than reasonable by the plaintiff.

123 However, to make a demand for what is otherwise reasonable by threatening that unless the demand is satisfied the person will not be, or may not be, appointed to a position to which the person is otherwise qualified and would otherwise be appointed, cannot, on any stretch of the imagination, be a proper means of reinforcing the demand. If it were seriously suggested that the plaintiff believed that such a threat in such a manner was "a proper means of reinforcing the demand" there may be quite independent bases for the finding of corrupt conduct.

124 I do not intend the foregoing to be taken as flippant. There are some findings that are so obvious as not to warrant a reasoning process. ICAC has found that the demand was unwarranted. Plainly, and unarguably, the demand was implemented in a manner which amounted to coercion, on the facts ICAC has found. In those circumstances, the attempt to impugn Finding 4 must fail.

Finding 5: Plaintiff's Failure to Disclose Interest

125 Again the primary findings of fact by ICAC are matters open to ICAC on the evidence and material before it. The issue in this finding relates to the plaintiff's failure to disclose a financial or pecuniary interest.

126 Section 442 of the Local Government Act defines a pecuniary interest in the following terms:

"s 442 What is a "pecuniary interest"?

(1) For the purposes of this Chapter, a "pecuniary interest" is an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person.

(2) A person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to the matter or if the interest is of a kind specified in section 448."

127 As can be seen, the foregoing definition, or the application of it, is qualified by the provisions of s 442(1), which makes clear that a pecuniary interest does not include a remote or insignificant interest that would be unlikely to influence any decision the person might be called upon to make.

128 ICAC made findings of fact and concluded that the plaintiff had a reasonable likelihood of gain in any transaction involving Mr Booth or the Weekly Times.

129 The findings are sought to be impugned on the basis of an application of the principles relating to bias or apprehended bias amongst judicial officers, relying on Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438.

130 The plaintiff relies upon the resolution moved at the meeting in question, being a resolution the effect of which was that the current advertising contract for which there was an option to extend, not being extended and the Council's advertising budget by split between the current supplier or newspaper and the Weekly Times, with which the plaintiff had an indirect pecuniary relationship.

131 The resolution that was passed was not that which was moved. The resolution passed simply called for tenders.

132 It is not absolutely clear how it is said the fact that the motion as moved was not passed affects whether there is a pecuniary interest in the subject matter of the motion of the kind defined in the Local Government Act.

133 Taking the analogy utilised by the plaintiff in these proceedings, it is an argument that suggests that apprehended bias cannot be maintained when the judge's orders are not wholly consistent with that which is agitated by the party with whom the judge is said to have had a pecuniary relationship.

134 Apprehended bias upon which the plaintiff relies does not depend upon the result of the proceedings (except if the point is not taken before proceedings are concluded). The very notion of apprehended bias depends upon an apprehension of the future conduct of the person alleged to be biased and an apprehension of the appearance of bias.

135 Time and again the courts have made it clear that, in most instances, judges will deal with the matter on the basis of the evidence before them. The apprehension of bias is a recognition of human frailty and relates to the appearance of justice more than the delivery of it.

136 Those principles also inform the provisions of s 442 of the Local Government Act. Those provisions create a specific statutory test for the existence of a pecuniary interest relating to the reasonable likelihood or expectation of gain that is not so remote or insignificant that it could not reasonably be regarded as likely to influence any decision.

137 Once the motion was put forward in which the Weekly Times, with which the plaintiff had a pecuniary association of the requisite kind, was to benefit, the plaintiff was required to disclose that pecuniary interest and disclose the conflict of interest arising from his dealings with Mr Booth and the Weekly Times.

138 It matters not that the result of the motion was no more than the calling for tenders. The failure to disclose occurred at the point in time that the motion was put forward and the matter discussed: s 451 of the Local Government Act. The disclosure may have been required to have been made in the return lodged with the General Manager under s 449 of the Local Government Act, but no issue arises in these proceedings as to that aspect.

139 The plaintiff's reliance upon Ebner and Hot Holdings requires acceptance of the proposition that, because the resolution ultimately passed sought tenders, no pecuniary interest or conflict could reasonably be apprehended. However, as stated above, the reasonable apprehension of bias occurs prior to or at the time that the motion is proposed and the subject matter comes before Council.

140 At that time, pursuant to the terms of s 451(2) of the Local Government Act, the plaintiff could not be present at the meeting or in the sight of the meeting when the proposal was being considered or discussed or being voted on. As a consequence, the plaintiff could not be present at the meeting when the ultimate resolution, being an amendment to the proposal before Council, was moved.

141 The plaintiff's conduct was a breach of Clause 4.2 of the 2013 Code of Conduct and a disciplinary offence as a consequence of the contravention of s 451 as to non-disclosure of the pecuniary interest and presence at the meeting when the proposal was the subject of discussion.

142 The ground of attack on Finding 5 must fail.

Finding 6 and Finding 7: Release of Commercial Documents to Messrs Cerrato and Mahony

143 It is convenient to deal with the challenge to Findings 6 and 7 together.

144 Again, ICAC made findings of fact which are relatively uncontroversial, at least for the purposes of proceedings in this Court. Those findings of fact lead inexorably to the conclusion that the plaintiff forwarded to Mr Cerrato internal Council communications and reports that were both commercially sensitive and confidential. This was done at the request of Mr Cerrato (page 48, ICAC report). ICAC concluded that there was insufficient evidence to allow it to conclude what the motive for the forwarding of the information was.

145 Before ICAC, the plaintiff submitted that the documents were not commercially sensitive or confidential. The documents were marked "COMMERCIAL IN CONFIDENCE" when received by the plaintiff. They were internal Council documents and related to a current, lucrative Council contract. A challenge to the findings of confidentiality and commercial sensitivity is untenable.

146 The fact that the contract was some years old does not detract from the foregoing. It was a current contract, the terms of which were relevant to a tender for which the Council had called or were about to call. Mr Cerrato (or one of his associates) wanted the information because he was interested in tendering for the Waste Collection and Disposal Contract that was to be let a short time in the future.

147 The release of the information to Mr Mahony is said by the plaintiff, in these proceedings, to be justified on the basis that the plaintiff had a lawful excuse for releasing the information to Mr Mahony, being an excuse under s 664(1)(e) of the Local Government Act. It is necessary to recite, briefly, the alleged factual support for that alleged excuse.

148 Section 664(1)(e) of the Local Government Act allows the disclosure of information for a "lawful excuse". The plaintiff submits that the lawful excuse was that the conduct of Council (and its then General Manager) was illegal and/or involved an illegality, because it involved a resolution by which the Council delegated to the then General Manager a function prohibited by s 377 of the Local Government Act.

149 The essence of the plaintiff's submission is that the resolution of Council, relating to the redevelopment to which reference has been made earlier in these reasons, involved a delegation to the General Manager to borrow $35,000,000 contrary to s 377(1)(f), and the sale, exchange or surrender of land contrary to the provisions of s 377(1)(h) of the Local Government Act.

150 The "lawful excuse" does not withstand scrutiny. Council resolved to borrow $35,000,000 in accordance with a development plan submitted by Lend Lease. The monies were a loan and re-loan and consisted of a book entry in which Lend Lease provided the finance for the redevelopment and obtained the profit on the sale of residential premises that were to be constructed as part of the civil redevelopment project.

151 The fundamental flaw in the plaintiff's submission is that Council resolved to borrow the money and delegated to the General Manager the negotiation of the terms, subject to approval by the Council. In fact, the loan never occurred.

152 As a consequence, the Council decided itself to borrow the money. It did not delegate to the General Manger the borrowing of money and there could be no arguable proposition that the Council, in resolving as it did, contravened s 377(1)(f) of the Local Government Act.

153 Similarly, the negotiation of the development arrangements with Lend Lease did not involve the sale, exchange of surrender of any land by the General Manager. First, any decision was made by Council, not the General Manger. Secondly, any sale, exchange or surrender was to occur only after the development would have been completed. Even if there were to be arrangements, whereby the General Manager would be delegated the sale of land, that delegation not occur and did not occur prior to the development of the residential premises that formed part of the total civil redevelopment arrangement with Lend Lease.

154 Primarily, there was no delegation of a "sale, exchange or surrender" because it was the Council that resolved to deal with the land and/or premises in a way that it did and delegated to the General Manager, subject to ultimate approval of the Council, the negotiation of the best terms for that sale, exchange or surrender to occur (and for the borrowing of money to occur).

155 There is no and was no arguable illegality under s 377(1) of the Local Government Act and no "lawful excuse" for the release of material that was confidential and commercially sensitive.

156 The challenge to Findings 6 and 7 must fail.

Conclusion

157 For the foregoing reasons, the plaintiff's challenge to the findings of ICAC all fail. Earlier in these reasons I expressed the view that if one finding withstood challenge then the orders sought could not be made. That may arguably require some qualification in that some of the findings involve recommendations for suspension and dismissal which are at the heart of the motive for the challenge to the findings, while other findings did not. Nevertheless, the issue is ultimately irrelevant. None of the challenges to any of the findings succeed.

158 After the drafting of these reasons, but before their publication, the plaintiff filed a Notice of Motion seeking the joinder of the relevant Minister, Mr Toole, in order to enjoin the Minister from a provision of an advice under s 440B(1)(c) of the Local Government Act. In the circumstances, it was in the interest of justice and each of the parties for them to understand the nature of the orders proposed by the Court, even though reasons were still to be finalised. In those circumstances orders issued on 20 November 2014 and these reasons for judgment were further reserved.

159 For the foregoing reasons, I made the orders issued on 20 November 2014 and further orders were made making the Minister a party to the proceedings for the purpose of the further relief sought by the plaintiff.

160 On 20 November 2014, as a result of the reasons herein, the Court made the following orders:

i. Judgment for the first defendant (ICAC);

ii. Save for the issues raised in the motion filed on 20 November 2014, and otherwise subject to leave granted herein, the summons is dismissed;

iii. The plaintiff shall pay the first defendant's costs of and incidental to the proceedings as agreed or assessed;

iv. Liberty to apply for special or different orders as to costs to both parties within 7 days of the publication of the reasons for judgment.

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Decision last updated: 28 November 2014