SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
C v THE INDEPENDENT COMMISSIONER AGAINST CORRUPTION
[2020] SASCFC 57
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, the Honourable Justice Stanley and the Honourable Justice Bleby)
26 June 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT - TIME FOR APPLICATION
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - EXISTENCE OF OBLIGATION - PARTICULAR CASES
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - GENERALLY
An application brought by the defendant, the Independent Commissioner Against Corruption (the Commissioner), seeking the summary dismissal of an application for judicial review brought by the plaintiff, or, in the alternative, an order that the plaintiff’s statement of grounds be struck out in whole or in part.
On 22 March 2017, the plaintiff attended the Commissioner’s offices in response to a summons, and underwent an examination. He made a claim of privilege against self-incrimination with respect to the whole of his evidence. The Commissioner subsequently made a non-communication direction to the effect that any evidence given by the plaintiff that would enable him to be identified must not be communicated to any person (with certain exceptions) in the course of the examination. On 22 June 2017, the Commissioner varied that direction without reference to the plaintiff, which meant that the fact the plaintiff had given evidence was communicated to the relevant staff of the Office of the Director of Public Prosecutions.
On 9 August 2018, the plaintiff was told by the Commissioner that the corruption investigation had concluded. However, on 6 November 2019, the Commissioner said that on 6 July 2018, he had modified the assessment of the investigation so that it was assessed as a matter raising issues of serious and systemic misconduct and maladministration in public administration.
On 19 December 2019, the Commissioner further varied the non-communication direction to enable any evidence given by the plaintiff, or information that might enable him to be identified as a person who gave evidence before the Commissioner, to be communicated to certain people, who included his superiors.
The plaintiff applied for judicial review of seven decisions, acts or omissions which he claimed occurred in the course of action taken, or purported to be taken by the Commissioner under s 24 of the Independent Commissioner Against Corruption Act 2012 (SA) (the ICAC Act). Broadly, the three grounds of appeal were:
1. The defendant, in making the decisions to vary the directions, denied the plaintiff procedural fairness and/or failed to consider a relevant consideration, which was a jurisdictional error;
2. The defendant, in making the decision to modify his assessment of the corruption matter and/or…
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- Case
- [2020] SASCFC 57
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether the Commissioner had afforded the applicant procedural fairness when varying the non-communication directions, and whether the Commissioner had failed to take into account relevant considerations. Specifically, the applicant argued that the Commissioner should have provided notice and an opportunity to comment before varying the directions, particularly concerning potential prejudice to the applicant's safety or reputation. Further issues concerned the Commissioner's discretion to make multiple or modified assessments during an investigation and the permissible use of evidence obtained in one investigation for the purposes of another under section 56A of the ICAC Act.
A majority of the Court, comprising Bleby and Stanley JJ, summarily dismissed the application for judicial review. They reasoned that the ordinary meaning of "reputation" within the statutory context did not extend to prejudice in the eyes of those to whom disclosures were legally required for the purposes of the investigation itself. Furthermore, the Court held that "safety" in this context referred to physical safety, not psychological harm. Regarding the Commissioner's discretion, the Court found it was open to the Commissioner to make multiple assessments, and that section 56A of the ICAC Act permitted the use of evidence obtained in one investigation for any other investigation. Kourakis CJ dissented in part, finding that Ground 1 was reasonably arguable and that there was a statutory indication to afford witnesses an opportunity to disclose risks to their safety or reputation.
The majority ordered the summary dismissal of the plaintiff's application for judicial review, with costs to be heard.
Orders
Orders of the court
Held, per Bleby J (Stanley J agreeing), summarily dismissing the plaintiff’s application for judicial review:
1. Ground 1 does not disclose a reasonable basis for the claim.
2. Prior to making the variation of 19 December 2019, the Commissioner did not have an obligation to accord procedural fairness to the plaintiff in respect of the putative risk to the plaintiff’s reputation. The ordinary meaning of ‘reputation’ can easily enough be seen to extend to a person’s general reputation in the community or with respect to those who know of the person. Within a particular statutory context, a specific reference to reputation and, indeed, the obligation to accord natural justice in respect of the potential for adverse effects on a person’s ‘reputation’, may well require the concept of reputation to be understood as also encompassing a narrower field.
3. The concept of ‘prejudic[ing] the … reputation’ of a person within the meaning of subclauses 3(10) and (12) does not extend to prejudicing the person’s reputation in the eyes of those to whom disclosures are required, as a matter of law, to be made for the purposes of discharging natural justice obligations in the course of the investigation itself.
4. The concept of ‘prejudic[ing] the safety’ of a person in subclauses 3(10) and (12) does not extend, in this context, to causing psychological harm or mental stress in the sense claimed by the plaintiff, but is concerned with physical safety.
Held, per Bleby J (Kourakis CJ and Stanley J agreeing), summarily dismissing the plaintiff’s application for judicial review:
As to Ground 2:
1. Ground 2 does not disclose a reasonable basis for the claim.
2. It was open to the Commissioner to make more than one assessment and to do so consecutively. That is at his absolute discretion and such a course may, but need not, take the form of modifying an assessment in the course of dealing with the matter. Even if the action taken by the Commissioner could not properly be characterised as a modification of the assessment, the Commissioner had a discretion to make a fresh assessment after concluding, as a matter of fact, the investigation pursuant to s 24(1) of the ICAC Act.
3. Section 24(7) of the ICAC Act provides that the making of an assessment, etcetera, in respect of a matter is at the absolute discretion of the Commissioner. The second part of s 24(7) simply confirms that if the Commissioner does modify the assessment in the course of dealing with the matter, he can deal with the matter in accordance with that modification.
As to Ground 3:
4. Ground 3 does not disclose a reasonable basis for the claim.
5. There is no textual reason to read s 56A(1) of the ICAC Act other than fully distributively. That is, evidence or information obtained by the lawful exercise of powers in relation to any of the subject matters of an investigation may be used for the purposes of any investigation in relation to any other subject matter of investigation.
6. It is entirely appropriate and understandable that Parliament would seek to define and constrain the powers of the Commissioner consequent on an assessment made lawfully and, in particular, in good faith. However, if the investigation is then carried out lawfully according to Parliament’s prescription, and information is thereby revealed that paints a more comprehensive picture of the nature of the matter, indicating some different character of wrongdoing, there is an obvious public interest in that information being available for that further purpose. That is the mischief to which s 56A is directed.
As to the extensions of time:
7. It is not necessary to resolve the dispute regarding the date by which the plaintiff had sufficient knowledge of the variation of the non-communication direction.
8. It is not for a defendant to an application for judicial review, as a model litigant or otherwise, to identify prejudice before permission under rule 200(2) of the Supreme Court Civil Rules 2006 (SA) would not be given.
9. Rule 200C(1) of the Supreme Court Civil Rules 2006 (SA) does not operate as a time limit on the ability to bring an application for summary judgment under r 232. This being an application for summary dismissal under rule 232, there was no need for an extension of time.
Held, per Kourakis CJ, dissenting with respect to Ground 1:
1. Ground 1 is reasonably arguable.
2. There is no statutory indication of an intention to deny witnesses an opportunity to disclose risks to their safety or reputation of which they may be uniquely aware. Indeed, the purpose of the discretion to protect, in so far as it is reasonably practicable to do so, the reputation and safety of a witness is greatly undermined if there is not a concomitant obligation to hear from the witness on that question.
3. That there be a declaration that the Commissioner was bound to provide the plaintiff procedural fairness before making the variations to the non-disclosure direction identified in paragraphs 2.3 and 2.4 of the amended statement of grounds.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The first ground of review is expressed in the following terms:3.1 The variation of the directions – procedural fairness and failing to take into account a relevant considerationThe defendant in making the decisions to vary the directions as set out above at [2.4] denied the plaintiff procedural fairness and/or failed to consider a relevant consideration, which was a jurisdictional error.Particulars(i) When making the decision to vary the directions pursuant to clause 3(11) of Schedule 2 to the ICAC Act, the defendant did not inform the plaintiff of the proposed decision nor invite a comment from him in relation to the exercise of that power as to whether doing so might “prejudice the safety or reputation” of the plaintiff and/or(ii) The defendant did not consider, as part of making the decision to vary the direction, whether doing so might “prejudice the safety and/or reputation of the plaintiff. This ground relates solely to the decision identified at paragraph 2.4 of the Amended Statement of Grounds, being the variation of 19 December 2019.[22][22] Affidavit of the plaintiff 11 February 2020, Annexure 22, (CB Vol 4, 568). These complaints are to be understood in the context of the prescription for the conduct of an examination. This is set out in schedule 2, clause 3 of the ICAC Act. Subclauses 3(9) – (12) inclusive provide as follows:3—Conduct of examination…(9)An examiner may direct that—(a)any evidence given before the examiner; or(b)the contents of any document, or a description of any thing, produced to the examiner; or(c)any information that might enable a person who has given evidence before the examiner to be identified; or(d)the fact that any person has given or may be about to give evidence at an examination,must not be communicated or provided to any person, or must not be communicated or provided except in such manner, and to such persons, as the examiner specifies.(10) The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.(11) Subject to subclause (12), the Commissioner may, in writing, vary or revoke a direction under subclause (9).(12) The Commissioner must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.… It is also important to note subclause 3(7), which provides:(7)If a person (other than a member of the staff of the Commissioner) is present at an examination before an examiner while another person (the witness) is giving evidence at the examination, the examiner must—(a)inform the witness that the person is present; and(b)give the witness an opportunity to comment on the presence of the person.… The variation of 19 December 2019 was made pursuant to schedule 2, subclause 3(11). The direction records the invocation of that subclause and expressly notes the requirements of subclause 3(12). In doing so, the Commissioner expresses his satisfaction that the variation will not have any of the effects or consequences of prejudicing the safety or reputation of any person. On its face, then, the variation offers an answer to particular (ii) of Ground 1, in that it is apparent that the Commissioner did give consideration as to whether varying the direction might prejudice the safety and/or reputation of the plaintiff.