Atkinson v Independent Commission Against Corruption - [2016] NSWCA 194

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Atkinson v Independent Commission Against Corruption [2016] NSWCA 194
Hearing dates: On the papers
Decision date: 08 August 2016
Before: Bathurst CJ, Beazley P, Basten JA
Decision:
(1) Dismiss the applicant’s notice of motion dated 5 July 2016.
(2) Order that the applicant pay the Commission’s costs of the motion.
Catchwords:
JUDGMENTS AND ORDERS – amending, varying and setting aside orders – motion to vary orders after judgment delivered – declarations sought as to determinations by Independent Commission Against Corruption – relief not sought at trial or in notice of appeal – variation sought of order as to costs of appeal – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A)
COSTS – notice of motion to vary costs order – reduction sought on basis of success on one issue – no justification for awarding costs on issue basis
Legislation Cited: Corporations Act 2001 (Cth), s 184
Crimes Act 1900 (NSW), s 192E
Independent Commission Against Corruption Act 1988 (NSW), ss 8, 9, 74A
Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited: Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300
Castle Constructions Pty Limited v Sahab Holdings Pty Ltd [No 2] [2013] HCA 44; 89 ALJR 1159
Duncan v Independent Commission Against Corruption [2016] NSWCA 143
Texts Cited: Independent Commission Against Corruption, Report – Investigation into the Conduct of Ian Macdonald, Edward Obeid Snr, Moses Obeid and Others (July 2013)
Category: Procedural and other rulings
Parties: John Charles Atkinson (Appellant)
Independent Commission Against Corruption (Respondent)
Representation:
Counsel:
Mr D P Robinson SC (Appellant)
Mr B Walker SC/Mr S Free/Ms Z Heger (Respondent)
Solicitors:
Hall & Wilcox (Appellant)
Crown Solicitor for New South Wales (Respondent)

File Number(s): 2014/319803
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2014] NSWSC 1018

Date of Decision:

29 July 2014

Before:

McDougall J

File Number(s):

2013/325031

Judgment

THE COURT: In February 2016, the Court heard four separate appeals from a judgment of McDougall J in the Common Law Division on 29 July 2014. [1] (The proceedings in the Division involved an application for judicial review of certain findings made by the Independent Commission Against Corruption in July 2013. [2] ) Each appeal was dismissed.
1. Duncan v Independent Commission Against Corruption [2014] NSWSC 1018.
2. Independent Commission Against Corruption, Report – Investigation into the Conduct of Ian Macdonald, Edward Obeid Snr, Moses Obeid and Others (July 2013) (ICAC Report).
One of the appellants, John Charles Atkinson, now seeks a variation of the order made on 22 June 2016 dismissing his appeal. [3] He also seeks a variation of the order that he pay the Commission’s costs in this Court. The orders sought included a declaration in the following terms:

“Declare that the determination by the respondent that the appellant had engaged in corrupt conduct by authorising Mr Poole to arrange for the Obeids to be extracted from the Mount Penny joint venture…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWCA 194
Decision Date: 08 August 2016

CaseChat Overview and Summary

The applicant, Atkinson, sought to vary orders made by the New South Wales Court of Appeal in a proceeding against the Independent Commission Against Corruption (ICAC). The dispute concerned declarations sought by Atkinson regarding determinations made by the ICAC, and the costs of the appeal. The application to vary the orders was heard by Bathurst CJ, Beazley P, and Basten JA.

The primary legal issue before the Court of Appeal was whether it had the power to vary its previous orders, specifically concerning the costs of the appeal, under rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW). This rule permits a court to vary or set aside its own orders in certain circumstances, including where the variation is sought on the basis of success on a particular issue. Atkinson contended that the costs order should be varied to reflect his partial success in the appeal.

The Court of Appeal dismissed Atkinson's motion. It reasoned that the relief sought by way of variation, particularly regarding the costs of the appeal, was not sought at the trial or in the notice of appeal. The Court found no justification for awarding costs on an issue basis, as is permitted under rule 36.16(3A), in the circumstances of this case. The Court concluded that the conditions for varying the costs order under the rule were not met.

Consequently, the Court ordered that the applicant's notice of motion dated 5 July 2016 be dismissed, and that the applicant pay the Commission's costs of the motion.

Orders

Orders of the court

(1) Dismiss the applicant’s notice of motion dated 5 July 2016.

(2) Order that the applicant pay the Commission’s costs of the motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Atkinson v Independent Commission Against Corruption [2016] NSWCA 194
Hearing dates:	On the papers
Decision date:	08 August 2016
Before:	Bathurst CJ, Beazley P, Basten JA
Decision:	(1) Dismiss the applicant’s notice of motion dated 5 July 2016. (2) Order that the applicant pay the Commission’s costs of the motion.
Catchwords:	JUDGMENTS AND ORDERS – amending, varying and setting aside orders – motion to vary orders after judgment delivered – declarations sought as to determinations by Independent Commission Against Corruption – relief not sought at trial or in notice of appeal – variation sought of order as to costs of appeal – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) COSTS – notice of motion to vary costs order – reduction sought on basis of success on one issue – no justification for awarding costs on issue basis
Legislation Cited:	Corporations Act 2001 (Cth), s 184 Crimes Act 1900 (NSW), s 192E Independent Commission Against Corruption Act 1988 (NSW), ss 8, 9, 74A Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited:	Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 Castle Constructions Pty Limited v Sahab Holdings Pty Ltd [No 2] [2013] HCA 44; 89 ALJR 1159 Duncan v Independent Commission Against Corruption [2016] NSWCA 143
Texts Cited:	Independent Commission Against Corruption, Report – Investigation into the Conduct of Ian Macdonald, Edward Obeid Snr, Moses Obeid and Others (July 2013)
Category:	Procedural and other rulings
Parties:	John Charles Atkinson (Appellant) Independent Commission Against Corruption (Respondent)
Representation:	Counsel: Mr D P Robinson SC (Appellant) Mr B Walker SC/Mr S Free/Ms Z Heger (Respondent) Solicitors: Hall & Wilcox (Appellant) Crown Solicitor for New South Wales (Respondent)
File Number(s):	2014/319803
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2014] NSWSC 1018 Date of Decision: 29 July 2014 Before: McDougall J File Number(s): 2013/325031