Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: A v Independent Commission Against Corruption [2014] NSWCA 414 Hearing dates: 4 November 2014 Decision date: 05 December 2014 Before: Bathurst CJ at [1];
Basten JA at [8];
Ward JA at [77]Decision: 1. Grant leave to appeal.
2. Appeal dismissed with costs.
3. Prohibit the disclosure of the name of, and any material capable of enabling identification of, (a) the applicant or (b) the person whose electronic records are sought to be produced to the ICAC until public release of any ICAC report of the investigation to which the summons to produce relates, or until further order of this Court.
4. Revoke, with effect from the making of order 3, the non-publication order made by the Court on 1 September 2014.
5. Liberty to apply to vary order 3.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ADMINISTRATIVE LAW - judicial review - summons to produce documents issued by ICAC - ICAC Act s 35(1) - whether primary judge erred in finding summons authorised by s 35 - whether decision to issue summons was for a purpose other than an investigation - whether decision to issue summons illogical, irrational or unreasonable - whether ICAC failed to accord procedural fairness to appellant
ADMINISTRATIVE LAW - judicial review - notice to produce served on ICAC by appellant - whether primary judge erred in setting aside notice to produce - whether primary judge erred in finding ICAC Act, s 111(3) applies to ICAC as a separate legal personality - whether primary judge erred in concluding s 111(3) applies to documents created internally by ICAC
CONSTITUTIONAL LAW - implied freedom of communication on governmental and political matters - whether primary judge erred in finding s 35 reasonably appropriate and adapted or proportionate to an identified legitimate statutory purpose and therefore consistent with the implied freedom
CONSTITUTIONAL LAW - judicial review - whether primary judge erred in finding s 111(3) consistent with power of Supreme Court to grant relief in relation to jurisdictional errorLegislation Cited: Constitution (Cth), s 73
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 8, 16
Crimes Act 1914 (Cth), s 15X
Evidence Act 1995 (NSW), s 55
Independent Commission Against Corruption Act 1988 (NSW), ss 4, 13, 20, 21, 22, 30, 31, 35, 37, 86, 98, 99, 100, 111
Legal Practitioners Act 1981 (SA)
National Crime Authority Act 1984 (Cth), s 28
Retirement Villages Act 1999 (NSW), s 193
Trade Practices Act 1974 (Cth), s 155
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Associated Provincial Picture Houses v Wednesbury Corporation…
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- Case
- [2014] NSWCA 414
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the primary judge erred in finding that the summons issued by the ICAC was authorised by section 35(1) of the *ICAC Act*, and whether the decision to issue the summons was for a purpose other than an investigation, or was otherwise illogical, irrational, or unreasonable. Further, the court considered whether the ICAC had failed to accord procedural fairness to the appellant. The court also had to determine whether the primary judge erred in setting aside the appellant's notice to produce, specifically concerning the application of section 111(3) of the *ICAC Act* to the ICAC as a separate legal personality and to documents created internally by the ICAC. Finally, the court examined whether the primary judge erred in finding that section 35 of the *ICAC Act* was consistent with the implied freedom of communication on governmental and political matters, and whether section 111(3) was consistent with the Supreme Court's power to grant relief in relation to jurisdictional error.
The Court of Appeal, comprising Bathurst CJ, Basten and Ward JJA, dismissed the appeal. The court reasoned that the primary judge had correctly found that the summons issued by the ICAC was authorised by section 35(1) of the *ICAC Act* and that the decision to issue it was for a legitimate investigative purpose, not being illogical, irrational, or unreasonable, nor a breach of procedural fairness. Regarding the notice to produce, the court upheld the primary judge's finding that section 111(3) of the *ICAC Act* applied to the ICAC as a separate legal personality and to documents created internally by it, thus justifying the setting aside of the appellant's notice. The court also found that the primary judge had correctly concluded that both section 35 and section 111(3) were consistent with the implied freedom of communication and the Supreme Court's supervisory jurisdiction.
Leave to appeal was granted, but the appeal was dismissed with costs. The court also made orders prohibiting the disclosure of the appellant's name and any identifying material until the public release of any ICAC report related to the investigation, or further order, and revoked a previous non-publication order.
Orders
Orders of the court
1. Grant leave to appeal.
2. Appeal dismissed with costs.
3. Prohibit the disclosure of the name of, and any material capable of enabling identification of, (a) the applicant or (b) the person whose electronic records are sought to be produced to the ICAC until public release of any ICAC report of the investigation to which the summons to produce relates, or until further order of this Court.
4. Revoke, with effect from the making of order 3, the non-publication order made by the Court on 1 September 2014.
5. Liberty to apply to vary order 3.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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