Cover v ACT Integrity Commission (No 2)
[2025] ACTSC 119
•27 March 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Cover v ACT Integrity Commission (No 2) |
Citation: | [2025] ACTSC 119 |
Hearing Dates: | 14, 18, 20, 25 March 2025 |
Decision Date: | 27 March 2025 |
Before: | Mossop J |
Decision: | (1) Pages 1 to 312 of Exhibit BE 1 are admitted into evidence. (2) MFI A is admitted into evidence as Exhibit 3. (3) Exhibit 3 is to be returned to the plaintiff. (4) The application in proceeding dated 13 March 2025 is dismissed. (5) The costs of the application are reserved. (6) Order 4 does not take effect until 4:00pm on 28 March 2025. |
Catchwords: | PRACTICE AND PROCEDURE – INJUNCTIONS – Interlocutory relief – where plaintiff sought to restrain Integrity Commission from publishing proposed second report in Operation Luna – serious question to be tried – where, due to existing publication of first report, any harm by publication of proposed second report would merely be additional to that occasioned by first report – where injunction would impede the Commission’s important public function proximate to the centre of government – where the subject-matter of substantive proceedings relate to first, not second, report – interlocutory injunction not granted PRACTICE AND PROCEDURE – INJUNCTIONS – Availability of interlocutory relief where the subject-matter of an injunction (a report) could be subject to change – argument by defendant that injunctive relief inappropriate where the contents of the proposed second report may change – in the circumstances, the probability of a relevant change was low – not a basis to decline interlocutory relief EVIDENCE – PRIVILEGE – Parliamentary privilege – where claim for interlocutory relief relates to unpublished proposed second report of Integrity Commission – where claim for final relief in the same proceedings relates to published first report – where reports potentially subject to parliamentary privilege – parliamentary privilege issue to be determined after final hearing – first and proposed second reports admitted into evidence to assess whether there is a serious question to be tried and the relationship between the content of the first and second reports – such a course not contrary to Art 9 of the Bill of Rights 1688 |
Legislation Cited: | Australian Capital Territory (Self‑Government) Act 1988 (Cth), s 24(3) Bill of Rights 1688 1 Wm & M sess 2, c 2, Art 9 Financial Management Act 1996 (ACT), ss 84, 101 Integrity Commission Act 2018 (ACT), ss 9(1)(a)(i), 9(1)(a)(iii), 9(1)(b)(i), 9(1)(b)(ii) 10, 21, 25, 198, 212, 212A, 213, 214 Parliamentary Privileges Act 1987 (Cth), ss 16(2), 16(3) |
Cases Cited: | Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 In the matter of an application by Leanne Cover [2024] ACTSC 197 Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5 Tait v The Queen (1962) 108 CLR 620 |
Texts Cited: | ACT Integrity Commission, Special Report – Operation Luna (Part 1) (27 June 2024) |
Parties: | Leanne Cover ( Plaintiff) ACT Integrity Commission ( Defendant) |
Representation: | Counsel IJ King (Plaintiff) B Kaplan (Defendant) |
| Solicitors Mills Oakley (Plaintiff) ACT Integrity Commission (Defendant) | |
File Number: | SC 199 of 2024 |
MOSSOP J:
Introduction
1․These reasons relate to an application for an interlocutory injunction.
Proceedings on foot
2․The substantive proceedings brought by the plaintiff seek prerogative relief in relation to a report by the ACT Integrity Commission entitled “Special Report – Operation Luna (Part One)” dated 27 June 2024 (First Report). The plaintiff claims declarations that the report is materially affected by errors of law, is attended by jurisdictional error through a failure to consider relevant considerations, and the finding that the plaintiff engaged in “serious corrupt conduct” was made without or in excess of jurisdiction and is therefore a nullity.
3․Those proceedings were commenced on 18 June 2024. A final hearing is listed to take place on 29 April 2025.
Earlier injunction application
4․At the time the plaintiff commenced proceedings in 2024, she also sought an interlocutory injunction restraining the publication of the First Report. That application was heard on 21 June 2024, and on 25 June 2024, McCallum CJ dismissed the application for an interlocutory injunction: In the matter of an application by Leanne Cover [2024] ACTSC 197 (Cover).
Publication of the First Report
5․Following the dismissal of the injunction, on 27 June 2024, the First Report was delivered to the Speaker of the Legislative Assembly and then, pursuant to ss 213 and 214 of the Integrity Commission Act 2018 (ACT), published on the Commission’s website and presented to the Legislative Assembly by the Speaker.
Contents of the First Report
6․In the First Report, the focus was upon the information that was provided by the plaintiff to the Board of the Canberra Institute of Technology (CIT) in relation to the fifth and sixth contracts entered into with an entity associated with a Patrick Hollingworth. The report recited the history of the six contracts. It made particular reference to information provided to the CIT Board following the receipt of a letter from the relevant Minister dated 19 February 2021. The conclusion reached was that the plaintiff had intentionally concealed the Minister’s letter and details of the conversation with the Minister’s chief of staff, and that this involved a breach of her duties as a Chief Executive Officer. The First Report concluded that the plaintiff was guilty of serious corrupt conduct within the meaning of s 10 of the Integrity Commission Act. Some of the specific findings made will be referred to later in these reasons.
Proposed new special report
7․On 20 January 2025, the Commission provided to the plaintiff a document entitled “Proposed Special Report (Part 2) – Canberra Institute of Technology”, being a proposed further special report arising from investigations under Operation Luna (Proposed Second Report). The provision of the Proposed Second Report was subject to a non‑disclosure notice under s 198 of the Integrity Commission Act served by the Commission. The Commission advised the plaintiff that she had until 17 March 2025 to make any submissions about the contents of the Proposed Second Report. The opportunity to comment on such a report is an entitlement under s 212 of the Integrity Commission Act.
Application for an injunction
8․On 25 February 2025, the solicitors for the plaintiff sent a letter to the Commission seeking an undertaking that the Commission would not publish the Proposed Second Report until the determination of the present proceedings. That request was repeated on 7 March 2025. The Commission declined to give such an undertaking on 12 March 2025. The application for an interlocutory injunction was filed the next day.
9․The substantive relief sought in the application in proceeding is:
An order restraining the defendant from delivering a report in the form of the “Proposed Special Report (Part 2) – Canberra Institute of Technology” on or around January 2025 written by the defendant in relation to the defendant’s Operation Luna (Proposed Second Report) and provided to the plaintiff on 20 January 2025 (or any future iteration of the Proposed Second Report) to the Speaker of the Legislative Assembly of the ACT or otherwise publishing the Proposed Second Report until further or other order of this Court.
10․The application also sought costs and “Such further or other orders as this Court considers appropriate”. That last prayer for relief took on some significance, as will be explained later in these reasons. The plaintiff, by her counsel, offered the usual undertaking as to damages.
Hearing of the second injunction application
11․The plaintiff’s application for an injunction filed on 13 March 2025 was made returnable before me as the duty judge on 14 March 2025. Neither party was in a position to make submissions at that time. The proceedings were subsequently heard at various times before or after ordinary court sitting hours on 14, 18, 20 and 25 March 2025 while the court was otherwise hearing a criminal jury trial.
12․During the course of the hearing of submissions, counsel for the Commission indicated that the Commissioner had given to another person affected by the report — who had been provided with a copy of the Proposed Second Report — an extension of the time in which to make comments on the Proposed Second Report until 27 March 2025. On 20 March 2025, the Commission gave an undertaking to the court, by its counsel, not to provide any proposed Special Report to the Speaker of the Legislative Assembly until the determination of the plaintiff’s application for an injunction.
The grounds for the injunction
13․The grounds upon which the injunction was sought describe the publication of the First Report, the proceedings challenging that report, the provision of the Proposed Second Report, and the opportunity given to the plaintiff to comment on the report. The grounds then continue:
5․The Proposed Second Report directly relies upon the First Report, including:
a. paragraph 10 of the Proposed Second Report repeats the characterisation of “serious corrupt conduct” which is the subject of challenge in Ground 1 of the plaintiff’s Amended Originating Application filed 30 August 2024 in this proceeding;
b. paragraph 12 of the Proposed Second Report repeats the misunderstanding of the standard of proof which is the subject of challenge in Ground 2 of the plaintiff’s Amended Originating Application; and
c. numerous factual findings made in the First Report are relied upon to justify serious adverse findings in relation to the plaintiff in the Proposed Second Report.
6․The delivery of the Proposed Second Report to the Speaker of the Legislative Assembly of the ACT or the publication of the Proposed Second Report would have the effect of reducing the utility of any relief that this court could order in relation to the First Report.
14․Consistently with the manner in which the application is articulated in these grounds, in oral submissions, counsel for the plaintiff made it clear that the injunction in relation to the Proposed Second Report was sought as an adjunct to the relief sought in the proceedings relating to the First Report. The final relief in relation to which the interlocutory relief was sought was final relief directed to the First Report, as distinct from any final relief that might be sought, as a result of an amendment to the claim presently on foot, in relation to the Proposed Second Report.
Test to be applied for the purposes of an interlocutory injunction
15․In order to justify the making of an interlocutory injunction, it is necessary for the plaintiff to establish that there is a serious question to be tried in relation to her claim for final relief, and that the balance of convenience favours the grant of an interlocutory injunction.
16․In an appropriate case, if the claim for final relief turns on a question of law, it may be appropriate for the court hearing an interlocutory application to determine that question of law. Although at least two of the grounds upon which the plaintiff challenges the First Report appear to involve relatively straightforward questions of statutory interpretation, neither party submitted that it would be appropriate for the court to determine those questions of statutory interpretation on a final basis in order to determine the application for an interlocutory injunction.
Submissions of the plaintiff
17․The plaintiff characterised the application for an injunction as being one consistent with the principles, outlined in Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5 at [29], that the court has power to make an interlocutory injunction:
to protect the integrity of its own processes by ensuring its capacity to effectively exercise its jurisdiction in a proceeding pending before it, including an order to preserve the subject‑matter of the proceeding and an order to preserve the utility of the final relief that is sought.
18․The plaintiff submitted that each of her grounds of review was sufficient to establish a prima facie case or serious question to be tried, namely a “sufficient colour of right to the final relief in aid of which interlocutory relief is sought”. Of each of the six grounds of challenge set out in the Amended Originating Application, she submitted:
(a)the construction of “serious corrupt conduct” in the First Report was contrary to the usual interpretation of “serious” when added as a qualifier in a legislative provision;
(b)the First Report identified a standard of proof that was not informed by the Briginshaw standard;
(c)the First Report adopted a novel construction of ss 84 and 101 of the Financial Management Act 1996 (ACT) to determine the scope of the plaintiff’s duties as a Chief Executive Officer in a manner that was unsupported by authority;
(d)the First Report elevated the status of an informal intimation given by a Minister through his chief of staff in a manner that was inconsistent with well‑established authority; and
(e)the First Report did not consider the evidence of a critical witness who was the Board Strategy and Governance Adviser.
19․These arguments reflected those set out in the grounds of the Amended Originating Application dated 30 August 2024.
20․In relation to the balance of convenience, the plaintiff submitted that, if an injunction was not granted, the consequences for her were “drastic, and not capable of compensation through damages”. That was because, although the First Report has already been made public, the Proposed Second Report proposed even more serious findings. She submitted that the Commission had not provided any evidence of prejudice to it, and that the duty under s 213 of the Integrity Commission Act to give a report to the Speaker should be understood as requiring the Commission to do so according to law.
Submissions of the Commission
21․The Commission submitted that, based upon the reasons given by McCallum CJ in Cover, “a probability, even a distinct probability of success” must be established: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 154. The Commission’s submissions adopted the statement of the Chief Justice that the remarks of Mason ACJ in Castlemaine Tooheys “emphasise the solemnity of the court’s power to interfere with the administration of such a statute, whose object is to provide a framework for the investigation of corruption”: Cover at [8] (see also at [52]).
22․The Commission submitted that there was no serious question to be tried for five reasons. In summary, those reasons were as follows.
23․First, no final relief was sought in relation to the Proposed Second Report.
24․Second, the plaintiff is not able to tender the First Report because it is a “proceeding … in Parliament” within the meaning of s 16(2) of the Parliamentary Privileges Act 1987 (Cth). It is either within the scope of s 16(2)(b) or s 16(2)(c) of that Act. So far as the Proposed Second Report is concerned, it is within s 16(2)(b) because it is an act “done … for purposes of or incidental to … the presentation or submission of a document to a House”.
25․Third, none of the complaints made about the First Report which are said to be repeated in the Proposed Second Report give rise to jurisdictional error. If they are errors, they are errors within jurisdiction. Because the errors are not jurisdictional, no declarations could be made and prerogative relief could not be granted.
26․Fourth, none of the asserted errors were made by the Commission. So far as Ground 1 is concerned, there is no additional requirement of seriousness which needs to be met other than satisfaction that the corrupt conduct “is likely to threaten public confidence in the integrity of government or public administration”. So far as Ground 2 is concerned, the use of the word “likely” as it appears in the definition of “serious corrupt conduct” does not connote more probable than not.
27․Fifth, the court should not grant relief in circumstances where the Proposed Second Report is subject to change as a result of the process for the making and consideration of submissions required by ss 212 and 212A of the Integrity Commission Act. In those circumstances, it is “entirely speculative” as to whether the final form of the report will include the findings about which the plaintiff complains.
28․In the event that, contrary to the submissions of the Commission, the court determined that there was a serious question to be tried, the court would not be satisfied that the prejudice to the plaintiff would outweigh the prejudice to the Commission’s functions if an injunction were granted. The Commission relied upon the statement of the Chief Justice in Cover at [55] that the statutory obligations of the Commission “are informed by matters of governance that must be taken to be important to the government in the enactment of the [Act]”. It pointed out that the evidence in support of the application involves a bare assertion as to the potential harm to the reputation of the plaintiff. The Commission submitted that this assertion ignores the impact of the First Report, and that any additional reputational damage is marginal and should be given little weight.
How to deal with the First Report and Proposed Second Report?
29․In relation to the substantive proceedings challenging the First Report, a central issue in those proceedings will be the admissibility of the First Report, having regard to the privileges of the Legislative Assembly. The Speaker of the Legislative Assembly is to be heard on that application in relation to the question of parliamentary privilege. Notwithstanding that the Speaker was given notice of the present application, he chose not to participate in these hearings. However, the Commission has made submissions identifying the issue of parliamentary privilege in relation to any tender of the Proposed Second Report and asserting that the report was not admissible for the purposes of the injunction application because to admit it would contravene Art 9 of the Bill of Rights 1688 1 Wm & M sess 2, c 2 by reason of s 16(2) of the Parliamentary Privileges Act.
30․The plaintiff submitted that both reports could be relied upon for the purposes of the present application and that it would be impractical for the court to determine finally whether parliamentary privilege prevents the tender of the First Report and the Proposed Second Report.
31․In my view, it is not essential to determine the issue of the application of parliamentary privilege (which will be more fully raised at the final hearing) for the purposes of the present application.
32․In order to obtain an interlocutory injunction, the plaintiff must establish that there is a serious question to be tried. The existence of a serious question is a combination of factual and legal contentions. If, in aggregate, the factual and legal contentions put forward by the plaintiff are sufficient to establish a serious question, then that will be sufficient to then permit consideration of where the balance of convenience lies. If the existence of a serious question to be tried is negatived by a fundamental flaw in either the plaintiff’s legal or factual contentions, then that will be fatal to her application for an injunction.
33․So far as factual contentions are concerned, the plaintiff will, in order to be able to succeed at a final hearing, be required to tender the First Report. Given the complexity and subtlety of the law in relation to parliamentary privilege, I am satisfied that there is a serious question to be tried as to the admissibility of the First Report.
34․In those circumstances, the admission of the First Report into evidence is in order to demonstrate that there is a serious question ultimately to be determined at a subsequent trial and not, at this stage, for any purpose which could be characterised as being contrary to s 16(3) of the Parliamentary Privileges Act (as picked up by s 24(3) of the Australian Capital Territory (Self‑Government) Act 1988 (Cth)).
35․So far as the Proposed Second Report is concerned, the admissibility of that report will not arise at the final hearing of the challenge to the First Report. Its admissibility only arises for the purposes of the injunction application. It is therefore not possible to admit it only for the purpose of demonstrating that there would be a serious question to be tried as to its admissibility at the final hearing. The purpose of its admission is to show that (a) its contents would be damaging to the reputation of the plaintiff, and (b) it contains reasoning which is identical or very similar to that in the challenged portions of the First Report. The plaintiff thereby seeks to demonstrate that the public disclosure of the Proposed Second Report would be damaging to her reputation, and if the challenge to the First Report were successful, it is likely that the Commission would revise the terms of the Proposed Second Report so as to not infringe its governing statute. The admission for such a purpose is not contrary to s 16(3), and hence it may be admitted.
36․Both the First Report and the Proposed Second Report will be admitted into evidence, the first as part of Exhibit BE‑1, the second as Exhibit 3.
Serious question to be tried
37․The existence of a serious question to be tried is a threshold question. In addition, when considering where the balance of convenience lies, the court may take into account the apparent strength of the plaintiff’s case but does not undertake a preliminary trial or attempt to forecast the ultimate result. Any assessment of the apparent strength of the case must be tentative and preliminary, having regard to the fact that the parties have not had an opportunity to make detailed submissions on each of the grounds.
38․For the purposes of the present case, I accept that the grounds articulated in relation to the challenge to the First Report disclose a serious question to be tried. Each appears to raise an arguable proposition which will be able to be developed in more detail at the upcoming hearing. It is not, however, a case in which the grounds are so apparently strong that the strength of the case is a significant factor in the assessment of where the balance of convenience lies.
39․I also accept the submission that the Proposed Second Report adopts legal propositions articulated in the First Report (and defended as correct by the Commission in the current proceedings). That is most obviously the case in relation to the interpretation of the term “serious corrupt conduct” in s 10 of the Integrity Commission Act (challenged in Ground 1 of the plaintiff’s Amended Originating Application) and the interpretation of the reference to “likely” in that section (challenged in Ground 2 of the plaintiff’s Amended Originating Application). I also accept that there is a substantial overlap in the underlying facts found in the two reports.
Balance of convenience
40․The balance of convenience requires consideration of a variety of different factors which support or tend against the appropriateness of the granting of an interlocutory injunction.
The terms of the relief sought
41․I do not accept the submission made on behalf of the Commission that the terms of the relief sought in the application in proceeding present a barrier to the grant of relief. It can be accepted that there is a potential for the Proposed Second Report to be modified as a result of the consideration of submissions made under s 212A of the Integrity Commission Act. However, both as a matter of principle and as a matter of fact, that possibility does not provide an impediment to the granting of injunctive relief.
42․As a matter of principle, it could not be a barrier to the grant of injunctive relief that, until the presentation of the report to the Speaker, there was a theoretical possibility that the Commission might change the terms of its report so as to remove those parts demonstrating the errors asserted by the plaintiff. If that were the case, it would be practically impossible to obtain effective injunctive relief even if there was a strong case that the report involved a jurisdictional error. The correct approach would be, for the purposes of considering the grant of an interlocutory injunction, to consider the terms of the report and determine whether such an injunction should be granted. Then, if there was a change of circumstances, such as the removal of the contentious portions of the report, that would provide a basis for the Commission to move to discharge the injunction so as to permit the report to be presented to the Speaker.
43․As a matter of fact, the submission has an air of convenient unreality about it. The contentious portions of the Proposed Second Report arise from the contentious portions of the First Report. Those portions of the First Report are challenged by the plaintiff in the present proceedings. The Commission is defending those proceedings at a final hearing. In those circumstances, the probability of the Commission reversing the legal and other conclusions that it has defended to date in the present proceedings must be assessed as low. If the probability of such a reverse occurring is low, then it does not provide a proper basis for declining to grant interlocutory relief.
The extent of reputational harm from the Proposed Second Report
44․The fundamental point made by the plaintiff is that, if the Proposed Second Report is released, she will suffer further damage to her reputation, and that will undermine the utility of her challenge to the First Report.
45․Having regard to the public release of the First Report, the plaintiff has suffered a significant degree of reputational harm already. The extent of additional reputational harm that may be suffered as a result of the release of the Proposed Second Report can be assessed by reference to the contents of the First Report and the Proposed Second Report.
46․The First Report addressed the conduct of the plaintiff and the CIT’s Board Chair, Mr Craig Sloan, in relation to the performance of their duties of disclosure to the CIT Board and to the responsible Minister of certain information connected to six different contracts awarded to entities associated with Mr Patrick Hollingworth. The conclusions in relation to the plaintiff were set out at [443]‑[456] of the First Report. Relevant to the reputation of the plaintiff, the report included a number of adverse findings, including the following:
(a)The plaintiff had failed to fulfil her responsibility to bring a letter of the Minister of 19 February 2021 to the CIT Board’s attention prior to the board considering expenditure on a contract with Mr Hollingworth for $4.5 million: [446]. She also had a duty to bring the Minister’s chief of staff’s view of the proposed contract to the attention of the Board: [446].
(b)The Commissioner did not accept the truthfulness of Ms Cover’s evidence: [447].
(c)The plaintiff had deliberately decided not to inform the Board about the procurement and terms of the fifth and sixth contracts in order to exclude the possibility, or reduce the risk, that the Board would not permit the procurement or contract to proceed: [449].
(d)The plaintiff’s dealings concerning the sixth contract alone constituted a gross breach of trust, were dishonest by the standards of ordinary people, and were known by the plaintiff to be dishonest: [450].
(e)The plaintiff’s conduct was not isolated but was part of a pattern of concealment commencing with how the Minister’s February letter was dealt with and moving through the ensuing processes up to and including the execution of the fifth contract: [450]
(f)The “executive response to the Minister” attached to Mr Sloan’s letter of 5 March 2021 was formulated with the intention of misleading the Minister as to the true position and constituted a gross breach of trust: [451].
(g)The failure on the part of the plaintiff was of major significance, with serious consequences for the operations of the agency and adverse financial and reputational consequences: [453].
(h)The conduct in relation to the procurement of the fifth and sixth contracts, and the plaintiff’s lack of candour in the response forwarded to the Minister by the Chair on 5 March 2021, would have provided reasonable grounds for dismissing, dispensing with the services of, or otherwise terminating the services of the plaintiff within the meaning of s 9(1)(a)(iii) of the Integrity Commission Act: [453]. The plaintiff’s conduct also constituted dishonest conduct within the meaning of s 9(1)(b)(i), a breach of public trust within the meaning of s 9(1)(b)(ii)(A), and/or the misuse of information or material acquired in the course of performing official functions within the meaning of s 9(b)(ii)(B): [454].
(i)The plaintiff intentionally concealed matters from the Board to avoid or reduce the risk that the Board may have disapproved of the transactions. The plaintiff knew that she was duty‑bound to disclose each of the Minister’s letter, the fifth procurement and contract, the sixth procurement, the substance of the conversation with the Minister’s chief of staff and the sixth contract, but decided not to in order to avoid consideration by the Board or the Minister of the desirability of continuing the contracts with Mr Hollingworth: [455]. This amounted to deliberate concealment. It was designed to convey to the Board that no transactions involving Mr Hollingworth were envisaged or underway that needed to be brought to their attention. It involved conduct which was one or all of:
(i)not honest within the meaning of s 9(b)(i);
(ii)a breach of public trust within the meaning of s 9(1)(b)(ii)(A); and
(iii)a misuse of information acquired in the course of performing her official functions.
It also resulted in a substantial benefit for Mr Hollingworth.
(j)The plaintiff’s corrupt conduct adversely impacted the exercise by the Board of its supervisory function and, as a result, was “likely to threaten public confidence in the integrity of government or public administration”. The plaintiff was therefore guilty of “serious corrupt conduct” within s 10 of the Integrity Commission Act: [456]
47․The Proposed Second Report focuses on the negotiations concerning, and the payment schedule agreed in, the sixth contract entered into between CIT and Mr Hollingworth’s company, Redrouge Nominees Pty Ltd. That schedule provided for substantial amounts to be paid in advance of the services to be provided.
48․Having regard to the fact that the Proposed Second Report is not necessarily in its final form because it is still subject to comments by those affected by it — and, necessarily, has not been yet provided to the Speaker — it is not appropriate to set out in these reasons the findings reached by the Commission at [81]-[97] of the Proposed Second Report. It is sufficient to note that the Proposed Second Report contains additional findings and conclusions adverse to the reputation of the plaintiff.
49․However, in assessing where the balance of convenience lies, it is significant that serious findings made by the Commission — adverse to the reputation of the plaintiff and relating to the same subject‑matter — are already in the public domain. That fact tends to lessen the significance of the impact of the public disclosure of the findings made in the Proposed Second Report.
The public interest in statutory functions
50․In assessing where the balance of convenience lies, it is of significance that the statutory functions being exercised by the Commission are functions which are close to the centre of Territory government. The Commissioner is described as “an independent officer of the Legislative Assembly”: Integrity Commission Act, s 21. The Commissioner is appointed by the Speaker on behalf of the Territory: s 25. Special reports of the Commission are provided to the Speaker, and there is an obligation on the Speaker to present the special report to the Legislative Assembly on the next sitting day: s 213. There is an immediate obligation upon the Commission itself to make a report that has been provided to the Speaker public by publication on the Commission’s website: s 214.
51․None of these features of the statutory regime governing the Commission provide any suggestion that the Commission is not to be held to the requirements of the statute. However, the statutory relationship between the Speaker, Legislative Assembly and the Commission, the independence of the Commission, and the statutory requirement for the presentation of special reports to the Legislative Assembly and public disclosure of their contents, all indicate (a) the proximity of the Commission’s role to the legislature of the Territory and (b) the significance of public disclosure of the work of the Commission. Both of those features tend against a conclusion as to the balance of convenience that would prevent the Commission reporting to the Speaker and, hence, the public disclosure of its report.
52․Those considerations are in addition to the significance of the objects of the Integrity Commission Act and the functions of the Commission relating to the identification, investigation and exposure of corrupt conduct — undoubtedly a significant public function.
The effect on the existing claim for relief
53․The Proposed Second Report is not presently subject to any claim for final relief. There may, however, be consequences of success by the plaintiff in her challenge to the Final Report for the Proposed Second Report.
54․However, contrary to the submissions of the plaintiff, the decision in MZAPC is of little assistance. The release of the Proposed Second Report will not render the challenge to the First Report nugatory. Nor will it destroy the subject‑matter of those proceedings. Those proceedings will still remain on foot, the plaintiff will still be able to prosecute her claim, and relief will still be able to be granted in relation to the First Report. That, in the meantime, some further harm will have been done to the plaintiff’s reputation by the release of the Proposed Second Report does not render nugatory or destroy the subject‑matter of the challenge to the First Report. Accepting that the plaintiff is likely to suffer additional reputational harm, and that the challenge to the First Report may have consequences for the reasoning adopted in the Proposed Second Report, the circumstances are a long way from the extreme circumstances that existed in Tait v The Queen (1962) 108 CLR 620 (impending execution of the applicant), or MZAPC (removal of the applicant from Australia). If ultimately successful, the reputation of the plaintiff will be restored to an extent proportional to the degree of her success in the proceedings.
The duration of any interlocutory relief
55․The proceedings involving the challenge to the First Report are listed for hearing before me on 29 April 2025. The period until then is relatively short. It is also a relatively short period when compared with the time taken by the Commission to conduct its investigation and prepare its report. The Commission announced its decision to investigate the circumstances surrounding the contracts between CIT and entities associated with Mr Patrick Hollingworth on 23 June 2022.
56․However, it is likely that the decision in the proceedings will be reserved, and it is not clear when a decision will be given. Further, there is always the potential that any decision reached will be the subject of an appeal to the Court of Appeal.
57․Thus, while the hearing is relatively proximate — and that would reduce any detriment arising from the restraint of publication of the Proposed Second Report — it is not possible to say that the restraint would only continue up until that date.
Conclusion
58․Weighing the various considerations relevant to the balance of convenience, I consider that the balance of convenience does not favour a grant of an injunction. In reaching that conclusion, the following matters have been of principal significance:
(a)While there is a serious question to be tried, the grounds for the challenge to the First Report are not so apparently strong as to significantly favour the grant of an interlocutory injunction.
(b)The harm that will be suffered as a consequence of the release of the Proposed Second Report will arise in the context of the significant harm already suffered as a result of the public release of the First Report.
(c)The Commission is performing an important public function which is statutorily proximate to the central institutions of the government of the Australian Capital Territory.
(d)The subject‑matter of the proceedings, which involve a challenge to the First Report only, would not be destroyed if the injunction is refused.
Application for an additional order extending the time for comments
59․If unsuccessful on the application for an interlocutory injunction, the plaintiff sought a consequential order “to afford her procedural fairness in relation to the Proposed Second Report”. The plaintiff submitted that, having been diverted from providing comments on the Proposed Second Report by the making of the application for an injunction, the court should make an order extending, or directing the Commission to extend, the time in which she might provide comments on that report.
60․As noted earlier, at the request of another person potentially affected by the Proposed Second Report, the Commission had granted an extension of time in which that other person might provide comments to 27 March 2025. There was no evidence that the plaintiff had made a similar request for an extension of time up until 21 March 2025, at which time there was a request made for an extension of time until 14 days after the delivery of judgment on the present application for an injunction. There was no evidence of a formal response to that request.
61․There are a variety of reasons which, in combination, lead me to decline to make any interlocutory injunction:
(a)It is not clear what power of the court is being invoked in circumstances where the final relief sought relates to the First Report and the interlocutory injunction is sought in relation to the Proposed Second Report. I do not accept that this issue would be one in relation to which the powers to protect the subject‑matter of the proceedings contemplated in MZAPC have any appropriate application.
(b)If what is sought is some amendment to the direction given by the Commission as to the time in which it will consider submissions on the Proposed Second Report, it is not clear that the court would have such a power, as distinct from a power to grant a prohibitory or mandatory injunction.
(c)The Commission will have provided the plaintiff with more than the statutorily required period of six weeks to provide comments set out in s 212(5).
(d)Even if the requirements of procedural fairness could operate to extend the period for comment beyond that specified in s 212(5), the evidence did not establish that there would be any denial of procedural fairness if the time for comments was not varied. In particular, the informed choice of the plaintiff to devote her time and resources to seeking an interlocutory injunction, as distinct from providing comments upon the Proposed Second Report, does not mean that the Commission has not provided her with procedural fairness.
Orders
62․The orders of the Court are:
(1)Pages 1 to 312 of Exhibit BE‑1 are admitted into evidence.
(2)MFI A is admitted into evidence as Exhibit 3.
(3)Exhibit 3 is to be returned to the plaintiff.
(4)The application in proceeding dated 13 March 2025 is dismissed.
(5)The costs of the application are reserved.
63․Following my pronouncement of the orders, Ms King, who appears for the plaintiff, sought a stay of those orders so as to allow the plaintiff to consider whether or not to seek leave to appeal from my refusal of an injunction. Mr Kaplan, who appears for the Commission, submitted that there is no basis in principle for the granting of such a stay because the filing of a notice of appeal would not, of itself, stay any order that is appealed from.
64․While I accept that submission, in my view it is appropriate to grant, in effect, a stay of the orders so as to permit any advice to be obtained and any application for an injunction associated with an application for leave to appeal to be made to a single judge of the Court of Appeal. The present position is that there is an undertaking by the Commission which has been given up until the determination of the application for an injunction.
65․The manner in which I will deal with Ms King’s application is to add an additional order which is that Order 4 does not take effect until 4:00pm on 28 March 2025. That will have the effect that, relevantly, the application has not been determined until that time and, as a consequence, unless withdrawn by the Commission, the undertaking not to deliver the report to the Speaker will continue until that time.
| I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: |
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